                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Overton
Argued at Alexandria, Virginia


UNINSURED EMPLOYERS' FUND

v.         Record No. 2355-95-4        MEMORANDUM OPINION * BY
                                    JUDGE JERE M. H. WILLIS, JR.
CURTIS MASON                               APRIL 9, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Gaye Lynn Taxey, Assistant Attorney General
           (James S. Gilmore, III, Attorney General;
           John J. Beall, Jr., Senior Assistant Attorney
           General, on briefs), for appellant.
           Diane C. H. McNamara for appellee.



     The Uninsured Employers' Fund (employer) appeals the

decision of the Virginia Workers' Compensation Commission

awarding Curtis Mason benefits for temporary total disability.

Employer contends that the commission erred in finding that it

did not prove the affirmative defense of willful misconduct.    We

find no error and affirm the commission's decision.

     Mason was employed as a steam roller operator by employer.

On April 7, 1994, Mason jumped off of his roller, angered and

ready to fight with his employer because of criticisms directed

toward his job performance.   While Mason stood behind the roller,

confronting his employer, the roller began moving and rolled over

his leg.   The employer jumped on the roller, put it in forward

gear, and moved it off of Mason.   Mason suffered a fractured left
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
tibia.

        Mason testified that he knew the operating procedures for

dismounting from the roller.    The "operator [was] to put the

throttle in idle, shift it into neutral gear, and engage the

parking brake."    The employer testified that the safety rules his

employees were to follow provided:       "Never stand in front or back

of roller when roller is started . . . . Always apply parking

brakeand [sic] remove key before stepping off roller."      The

employer also testified to several other permissible methods

employees could use in shutting off the engine.      Because Mason

could not read, the employer reminded him of the rules before

each job.    Based on the evidence, the commission found that Mason

left the throttle open, the parking brake disengaged, and the

gear shift in neutral.
        The employer asserted that Mason willfully violated a safety

rule.    To prevail upon a defense of willful misconduct, the

employer must establish a reasonable safety rule, known to the

employee, for the employee's benefit, and that the employee

intentionally undertook the forbidden act.       See Spruill v. C. W.

Wright Constr. Co., 8 Va. App. 330, 334, 381 S.E.2d, 359, 360-61

(1989).    The employer must also show that the safety rule was

enforced.     See VEPCO v. Kremposky, 227 Va. 265, 315 S.E.2d 231

(1984).    The employer contends that the commission erred as a

matter of law in finding that he did not specifically enforce the

safety rule.




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     Factual findings of the commission are binding on appeal.

Code § 65.2-706.   "The question of whether an employee was guilty

of willful misconduct is a question of fact."    Spruill, 8 Va.

App. at 333, 381 S.E.2d at 360 (citing Uninsured Employer's Fund

v. Keppel, 1 Va. App. 162, 165, 335 S.E.2d 851, 852 (1985)).

"But, if there is no credible evidence to support a finding of

fact, the issue becomes sufficiency of the evidence as a matter

of law for us to decide."   Keppel, 1 Va. App. at 165, 335 S.E.2d

at 852.
     The commission found the employer's own evidence established

that the rules were not enforced and that deviations were

tolerated.   Although the employer testified that he had not

enforced the rule because it had not been violated, the

commission found that the evidence established that the

procedures for operating the equipment were not true rules, but

rather were only standard operational procedures.   The record

supports this finding.   The failure to observe such operating

procedures, even though reasonable and intended to protect and

benefit the employee, is only negligence, and even the gross

negligence of an employee does not insulate an employer from

liability for a work injury.   Moreover, Mason's actions were not

intentional and willful, but were of a spontaneous, negligent

nature.   "Negligence, regardless of how gross, will not bar

recovery of workers' compensation benefits."    Spruill, 8 Va. App.

at 334, 381 S.E.2d at 361 (citing King v. Empire Collieries Co.,



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148 Va. 585, 590, 139 S.E. 478, 479 (1927)).

     The award of the commission is affirmed.

                                                Affirmed.




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