                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Alston, O’Brien and AtLee
              Argued at Fredericksburg, Virginia
UNPUBLISHED




              RODELL CALLAHAN
                                                                            MEMORANDUM OPINION* BY
              v.     Record No. 0661-18-4                                   JUDGE ROSSIE D. ALSTON, JR.
                                                                                OCTOBER 23, 2018
              RAPPAHANNOCK GOODWILL AND
               PENNSYLVANIA MANUFACTURERS ASSOCIATION
               INSURANCE CO.


                           FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Michael Herdman (Chasen & Boscolo, P.C., on brief), for
                               appellant.

                               Steven H. Theisen (Midkiff, Muncie, & Ross, P.C., on brief), for
                               appellees.


                     Rodell Callahan (appellant) appeals the determination of the Workers’ Compensation

              Commission (Commission), which denied his claim based on a factual finding that appellant

              willfully violated known safety rules. Appellant specifically contends that the safety rules were

              not promulgated for the employees’ benefit nor were they strictly enforced. We affirm the

              Commission.

                                                        I. BACKGROUND

                     Appellant was employed by Rappahannock Goodwill (appellee). Part of his employment

              responsibilities included driving a company truck to transport donated goods to appellee’s

              warehouse. On October 10, 2016, appellant sustained injuries while unloading donated goods

              from a company truck. Appellant filed a claim for wage loss and medical benefits. Prior to the



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
evidentiary hearing before the deputy commissioner, appellee raised the defense that appellant

willfully violated known safety rules.1

        At the hearing, appellant amended his claim, seeking temporary total disability benefits

from the injury date and continuing, in addition to medical benefits. Appellant then testified

about the injury date. Appellant transported goods in a company truck to appellee’s warehouse.

He drove into the lot and pulled up to the loading dock. According to appellant, he complied

with all safety rules before exiting the truck by shifting into neutral, engaging the emergency

brake, and inserting wheel chocks under the front and back tires; one wheel chock was in the

truck and the other was chained to the loading dock. Appellant then pulled the metal ramp

down, which hooked onto the back of the truck. Appellant retrieved the forklift so he could

unload the “Gaylord.”2 Appellant maneuvered the forklift into the back of the truck and picked

up a wooden pallet on top of which sat the “Gaylord.” As appellant reversed the forklift, the

truck began to roll away from the loading dock. Appellant posited that the weight of the forklift

caused the truck to bounce, which could have “knocked the gear off and caused [the truck] to

roll.” This resulted in appellant falling off the back of the truck while still astride the forklift.

        Appellant asserted that he never received safety training and stated that he was hired for

his experience. Yet, appellant admitted that during the interview process, he received an

employee manual which contained appellee’s vehicle safety policy. It stated “[d]rivers are

responsible for the security of [trucks] assigned to them. The vehicle engine must be shut off,

ignition keys removed, and vehicle doors locked whenever the vehicle is left unattended.”


        1
          Although appellee’s defense initially included “willful misconduct” language found in
Code § 65.2-306(A)(1), considering the opinions, assignment of error, the parties’ briefs, and
oral arguments, we confine our analysis to whether appellant willfully violated known safety
rules, as discussed in Code § 65.2-306(A)(5).
        2
        It is a cardboard box “maybe four[-to-]five f[ee]t deep” which varies in weight
depending on the goods it contains.
                                             -2-
Appellant also noted that at some point prior to the injury date, Heidi Dotson, appellee’s senior

manager of after-market and donated goods’ transportation, instructed him to use wheel chocks

and not to keep the truck idling. Appellant confirmed that he was assigned to veteran employees

and stated their primary purpose was to familiarize appellant with routes. Appellant did concede

that one of the veteran employees reminded him to turn off the ignition and insert the wheel

chocks. Appellant also acknowledged that he attended two safety meetings led by Dotson in

August and September but could not recall the nature of the meetings in great detail. Appellant

maintained that he informed Dotson that the wheel chocks were deteriorating and claimed that

the brakes on the truck he drove were defective; however, he did not mention these issues on the

accident report.

       Dotson testified. Her job duties included interviewing drivers, overseeing their training,

and instructing them on vehicle safety. She confirmed that she informed appellant of safety rules

during the interview process, including securing trucks by removing the key from the ignition,

engaging the brake, and chocking the wheels. Dotson provided appellant with the employee

manual which contained the vehicle safety rules. Appellant signed a document promising to read

the manual. Dotson testified that the safety rules protect appellee’s property. Beyond the

interview process, Dotson confirmed veteran drivers were assigned to appellant “so they could

teach [appellant] what to do.” She noted appellant attended two safety meetings she facilitated

and clarified the purpose of each meeting. The agenda for the August meeting mentioned topics

of discussion, which included securing trucks by not idling and by locking truck doors. At some

point afterwards, Dotson was informed that employees had been leaving trucks idling, but the

identity of those noncompliant employees was not revealed to her. Therefore, at the September

meeting, Dotson made clear that she was aware violations were occurring and admonished all

employees. Dotson then reviewed the safety rules.

                                               -3-
       She then testified that appellant never mentioned issues with the wheel chocks or the

truck brakes prior to the injury date. Further, that truck was serviced shortly before the injury

date and the brakes were inspected shortly after. Documentation from those services did not

reflect any issues with the brakes. Dotson also commented on the brake systems in the company

trucks; the setting of the emergency brake differed depending on the year, make, and model of

the truck. With regard to the truck appellant drove, she testified that to engage the emergency

brake, it had to be pushed down. Both parties introduced several exhibits, including photographs

of the truck, the wheel chocks, and the lot.

       Following the evidentiary hearing, the deputy commissioner opined that appellant was

barred from compensation because appellee sustained its burden of proving that appellee

willfully violated known safety rules. The deputy commissioner made numerous factual

findings. Appellee “established and communicated safety and property protection rules”

regarding securing trucks to appellant and other employees. Appellant “acknowledged his

familiarity with specific safety rules” pertaining to securing trucks. Specifically, appellant

“acknowledged that he knew, according to the established rules, when parking . . . at the . . .

loading dock, he was to put the [truck] in neutral, engage the parking brake, turn off the ignition,

remove the keys, and place wheel chocks under the rear and front tires.” With regard to the

injury date, the deputy commissioner found that appellant had “parked the [truck] at the loading

dock[,] . . . removed two or three carts of donations from the [truck’s] cargo area,” and “[drove]

a forklift to remove [a ‘Gaylord’].” As appellant backed the forklift out of the truck, the truck

“[began] to roll away from the loading dock.” Unaware, appellant continued backing out

“resulting in the forklift falling from the back of the [truck] and landing on the pavement.” The

deputy commissioner then mentioned several photographs in evidence. A photograph of the lot

where appellant unloaded the truck revealed that the lot appeared to be level. Photographs of the

                                                -4-
wheel chocks reflected that they were “in extremely poor condition.” The deputy commissioner

noted that Dotson authenticated the service and inspection records of the truck demonstrating

that the brakes were in “good working order.”

       The deputy commissioner found appellee proved that the safety rules were reasonable,

that they were known to appellant, and that they were promulgated for the employees’ benefit.

As to whether appellant intentionally violated the known safety rules, the deputy commissioner

concluded that appellee also met its burden. The deputy commissioner noted appellant’s

testimony “does not jibe with the physical evidence.” Particularly, the deputy commissioner

commented

               [that w]hile [he] might accept [appellant’s] opinion that the [truck]
               may have rocked when the forklift was driven into the cargo
               compartment, if [appellant] set the emergency brake and placed the
               defective wheel chocks under the tires as he testified, [the deputy
               commissioner could not] fathom any reason that the [truck] would
               have rolled away from the loading dock. [The deputy
               commissioner was] left with the inescapable conclusion that
               [appellant] did not perform the safety measures as he testified. It
               stretches credulity that the [truck] could roll away from the loading
               dock on a level surface with the emergency brake set and the wheel
               chocks, albeit defective, in place.

       Acknowledging appellant’s testimony that the truck was not one he usually drove and

Dotson’s testimony that brake systems differed depending on the truck, the deputy commissioner

               question[ed] whether an experienced commercial vehicle driver . . .
               would mistake whether a vehicle emergency brake was engaged.
               [The deputy commissioner] also note[d] that, contrary to
               [appellant’s] testimony regarding defective brakes in the [truck], it
               received routine maintenance less than a month prior to
               [appellant’s] accident, and rechecked after the accident, finding
               that the brakes were in working order.

       The deputy commissioner rejected appellant’s representation that he followed protocol

because “[h]is testimony is in direct conflict with the physical evidence.” In addition, “there

[wa]s no credible physical or documentary evidence that there was any defect with the [truck].”

                                                -5-
The “great weight [of the evidence] militate[d] against [appellant’s] version of the events,” and

the deputy commissioner concluded that appellant did not comply with safety rules although he

was aware of them. Accordingly, the deputy commissioner found that appellant’s

noncompliance was willful and “was a proximate cause of his injuries.”

       Consequently, appellant’s claim was denied. He appealed that determination to the

Commission.

       The Commission affirmed the deputy commissioner’s opinion and adopted the factual

findings and legal conclusions. Specifically, the Commission found that appellee met its burden

of proof in demonstrating that appellant “willfully breached [appellee’s] safety rules.” Appellee

               showed [that] the rules were adopted in part for the benefit of
               employees. [Appellee] brought its safety rules to [appellant’s]
               attention. The evidence did not establish [that appellee] failed to
               enforce its safety rules. [Appellant] acknowledged he was
               aware of the rules and followed them.

       Further, the Commission noted appellant’s argument amounted to a request that the

Commission find that the emergency brake and the wheel chocks failed. In this regard, the

documentation indicated that there were no brake defects. Photographs of the lot “depict[ed] a

gradual slope in the area where the truck was parked,” and photographs of the wheel chocks,

“although worn, [demonstrated that they] looked sufficient to prevent the accident in question if

properly used.” Ultimately, the Commission did “not believe [appellant] placed the wheel

chocks as required.” It was appellant’s “[f]ailure to engage the emergency brake and to install

the chocks [which] caused the [truck] to move while [appellant] was using the forklift, resulting

[in] his injuries.” Accordingly, appellee “proved willful misconduct and [appellant’s] claim is

barred.”

       Now comes this appeal.




                                               -6-
                                           II. ANALYSIS

       “Code § 65.2-306(A) states, in pertinent part, ‘[n]o compensation shall be awarded to the

employee or his dependents for an injury or death caused by . . . [t]he employee’s willful breach

of any reasonable rule or regulation adopted by the employer and brought, prior to the accident,

to the knowledge of the employee . . . .’ Code § 65.2-306(A)(5).” Layne v. Crist Elec. Contr.,

Inc., 64 Va. App. 342, 349, 768 S.E.2d 261, 264 (2015). “[T]he party raising a defense under

Code § 65.2-306(A) ‘shall have the burden of proof with respect thereto.’” Id. (quoting Code

§ 65.2-306(B)). That party, in this case, is appellee.

               To prevail on the defense of a willful violation of a safety rule,
               [appellee] must prove that: (1) the safety rule was reasonable;
               (2) the rule was known to the employee; (3) the rule was
               promulgated for the benefit of the employee; and (4) the employee
               intentionally undertook the forbidden act.

Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 393, 528 S.E.2d 162, 165 (2000)

(citing Owens Brockway & Nat’l Union Fire Ins. Co. v. Easter, 20 Va. App. 268, 271, 456

S.E.2d 159, 161 (1995) (citation omitted)). With respect to appellant’s intention,

               [i]f the safety rule is reasonable and is known to the employee and
               for his benefit, and yet he intentionally does the forbidden act, then
               he is guilty of willful misconduct within the meaning of [former]
               § 65-35. The employer is not required to prove that the employee,
               with the rule in mind, purposely determined to break it.

Layne, 64 Va. App. at 350, 768 S.E.2d at 265 (quoting Mills v. Virginia Elec. & Power Co., 197

Va. 547, 552, 90 S.E.2d 124, 127 (1955)). “[T]he employee may rebut the defense by showing

that the rule was not kept alive by bona fide enforcement or that there was a valid reason for [his]

inability to obey the rule.” Gwaltney of Smithfield, Ltd., 32 Va. App. at 393, 528 S.E.2d at

165-66 (quoting Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208

(1993)).




                                                -7-
       We further acknowledge that the determinations of

               [w]hether the rule is reasonable and applies to the situation from
               which the injury results, and whether [appellant] knowingly
               violated it, is a mixed question of law and fact to be decided by the
               [C]ommission and reviewable by this Court. But the questions of
               whether an employee is guilty of willful misconduct and whether
               such misconduct is a proximate cause of [appellant’s] accident are
               issues of fact.

Owens Brockway, 20 Va. App. at 271-72, 456 S.E.2d at 161 (quoting Mills, 197 Va. at 552, 90

S.E.2d at 127). In addition, “[w]hether the evidence was sufficient to demonstrate that the safety

rule was not strictly enforced is a mixed question of law and fact, and the [C]ommission’s ruling

is not binding on appeal.” Gwaltney of Smithfield, Ltd., 32 Va. App. at 393, 528 S.E.2d at

165-66 (citing Virginia Elec. & Power Co. v. Kremposky, 227 Va. 265, 270, 315 S.E.2d 231,

234 (1984)). “Factual findings of the [C]omission will not be disturbed on appeal unless plainly

wrong or without credible evidence to support them.” Smith-Adams v. Fairfax Cty. Sch. Bd., 67

Va. App. 584, 590, 798 S.E.2d 466, 469 (2017) (quoting Ga. Pac. Corp. v. Dancy, 17 Va. App.

128, 135, 435 S.E.2d 898, 902 (1993)). “In determining whether credible evidence exists, [this

C]ourt does not retry the facts, reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses.” Id. (quoting Wagner Enters., Inc. v. Brooks,

12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)).

       We “consider[] the evidence in the light most favorable to the prevailing party, in this

case, [appellee].” Smith-Adams, 67 Va. App. at 590, 798 S.E.2d at 469. The Commission found

that appellee met its burden of proof demonstrating that appellant willfully violated a known

safety rule. We agree. The record supports the conclusion that reasonable safety rules regarding

securing company trucks existed. These rules were communicated to appellant through several

methods: Dotson informed him of the safety rules during the hiring process; appellant was given

an employee manual containing the rules; appellant signed a document promising to read those

                                               -8-
safety rules; appellant was reminded of the safety rules at two safety meetings; and finally, the

safety rules were reiterated during ride-alongs with at least one veteran employee.

       The Commission also ruled that the safety rules were promulgated “in part for the benefit

of the employee” even though Dotson testified that the safety rules were promulgated to protect

company assets. A safety rule may have numerous benefits. It is of no significant moment that

the safety rules regarding securing trucks may also have been promulgated for the employees’

safety. Neither the statute nor case law suggests that safety rules must be promulgated “solely”

for the benefit of employees. See Owens Brockway, 20 Va. App. at 271, 456 S.E.2d at 161

(noting only that the safety rule be “promulgated for the benefit of the employee”); Fairfax Cty.

Gov’t v. Monroe, No. 1628-14-4, 2015 Va. App. LEXIS 125 (Va. Ct. App. April 14, 2015)

(indicating that the safety rules at issue, which “mandate[ed] professional conduct in the

workplace[,] have a myriad of purposes and benefit both employers and employees”).3

       The Commission also determined that appellant’s violation was willful. Appellant was

clearly aware of and understood the safety rules as outlined above. Appellant testified that he

was compliant; he allegedly set the gear in neutral, engaged the emergency brake, removed the

key from the ignition, and properly placed the wheel chocks before unloading the truck.

Appellant posited that the weight of the forklift caused the truck to bounce, moving the gearshift

out of place, causing the truck to roll away. Appellant further supported his theory by

highlighting the deterioration of the wheel chocks and claiming that the emergency brake was

defective. The Commission considered the truck’s maintenance and inspection records,

reflecting no brake issue. The Commission then scrutinized the photographs of the lot and the

worn chocks as well as appellant’s testimony. The Commission did “not believe [appellant]


       3
          “Although not binding precedent, unpublished opinions can be cited and considered for
their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346, 350 n.3, 735 S.E.2d 255, 257
n.3 (2012) (citing Rule 5A:1(f)).
                                              -9-
placed the wheel chocks as required,” and this Court finds that sufficient evidence supports the

Commission’s conclusion. In making that assessment, the Commission noted that the wheel

chocks, even in their deteriorated state, would have prevented the accident if properly used,

particularly in light of the photograph of the lot which showed, at most, a gradual slope. We

further note appellant’s and Dotson’s testimony regarding the process of engaging the emergency

brake on this particular truck was inconsistent. The Commission concluded that appellant’s own

failures resulted in his injuries by finding that his “[f]ailure to engage the emergency brake and

to install the chocks caused the [truck] to move while [appellant] was using the forklift, resulting

[in] his injuries.”

        In addition, appellant failed to rebut appellee’s defense. The Commission found that the

evidence did not establish that the safety rule was not enforced. See Mouhssine v. Crystal City

Laundry, 62 Va. App. 65, 72-73, 741 S.E.2d 804, 808 (2013) (noting that “[w]hile the Virginia

Workers’ Compensation (the Act) has never actually included any such language in its statutory

test, Virginia’s case law addressing the defense . . . has included consideration of whether there

was ‘strict enforcement’ or ‘bona fide enforcement’ of the applicable workplace safety rules”).

This analysis concerns “the employer’s efforts to achieve its employees’ compliance with the

workplace safety rule—not necessarily . . . any specific punishment given to a particular

employee who has failed to comply.” Id. at 75, 741 S.E.2d at 809 (citing Peanut City Iron &

Metal Co. v. Jenkins, 207 Va. 399, 150 S.E.2d 120 (1966); 9 Arthur Larson & Lex K. Larson,

Larson’s Workers’ Compensation Law § 35.03). As stated above, these safety rules were

communicated to employees in a variety of ways. When Dotson was informed that violations of

these safety rules had occurred, the informants did not reveal the violators’ identity.

Nevertheless, Dotson took action; she admonished all employees at the September safety

meeting and reiterated the safety rules. Accordingly, Dotson “made a bona fide effort to require

                                               - 10 -
[appellant] and . . . other . . . employees to comply with [those rules],” id. at 76, 741 S.E.2d at

810, and “[did] not condone[] or acquiesce[] in [the safety rules’] violation,” id. at 77, 741

S.E.2d at 810 (citing Jenkins, 207 Va. at 406, 150 S.E.2d at 125).

                                          III. CONCLUSION

       Appellee sustained its burden of proving that appellant willfully violated known safety

rules, and appellant failed to rebut that defense. Appellant’s claim was properly denied. We

affirm the Commission.

                                                                                            Affirmed.




                                                - 11 -
