                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


TARMAC AMERICA, INC. AND
 INSURANCE COMPANY OF THE
 STATE OF PENNSYLVANIA
                                               MEMORANDUM OPINION *
v.   Record No. 1242-98-2                          PER CURIAM
                                                DECEMBER 8, 1998
ROBERT LOUIS SALMON, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (S. Vernon Priddy, III; Patsy L. Mundy;
           Sands, Anderson, Marks & Miller, on brief),
           for appellants.

           (Ruth E. Nathanson; Maloney, Huennekens,
           Parks, Gecker & Parsons, on brief), for
           appellee.



     Tarmac America, Inc. and its insurer (hereinafter referred

to as "employer") contend that the Workers' Compensation

Commission ("commission") erred in finding that employer failed

to prove that Robert Louis Salmon, Jr. (1) committed willful

misconduct which barred his claim pursuant to Code

§ 65.2-306(A)(1); or (2) willfully breached a reasonable rule or

regulation adopted by employer which barred his claim pursuant to

Code § 65.2-306(A)(5).   Employer also contends that Salmon failed

to prove that he sustained an injury by accident arising out of

his employment on May 30, 1997.   Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit.   Accordingly, we summarily affirm the commission's
     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
decision.    See Rule 5A:27.

                                 FACTS

     On appeal, we view the evidence in the light most favorable

to the prevailing party, and we do not retry the facts or reweigh

the preponderance of the evidence.       See Wagner Enters., Inc. v.

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

     Salmon began working for employer in January 1997 as a cuber

operator.   He operated various machines, including the splitter

machine.    That machine split and cut pieces out of concrete

blocks.    Salmon had operated the splitter machine on six to

twenty-four occasions before the day of his injury.
     On May 30, 1997, after operating the splitter machine for

one to one and one-half hours, a block came through the machine

after being cut, and the blade would not move.      Salmon removed

the front piece of the block and saw a chunk of cement remaining

in the machine.   Salmon believed that he had time to remove the

chunk, because no block was moving, which indicated that the

blades were not moving.   As he reached in to remove the chunk,

the blades began to move, causing serious injuries to the fingers

on his left hand.

     Salmon had reached into the same area of the machine on

prior occasions and had not been disciplined or corrected for

doing so.   Salmon knew the location of the blades.     He stated

that he would not have put his hand in the path of the blades if

he had known they were moving.    Salmon's only training on the



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splitter machine occurred when he watched another employee

operate the machine.    Salmon testified that employer never

specifically told him not to place his hands inside the machine,

but only told him not to get his hands caught in the machine.      No

supervisor had ever instructed Salmon on how to remove a chunk of

cement from the machine or ever corrected him with respect to the

manner in which he operated the machine.    Salmon stated that he

had reached into the machine to remove chunks on prior occasions

and that other employees did the same thing.    He never saw any

employee reprimanded for the manner in which they removed the

chunks.    Salmon was never instructed that when a chunk fell near

the blade, he was to either shut off the machine or perform a

lock out/tag out procedure.    In addition, he never saw any

employee perform the lock out/tag out procedure on the splitter.
        Daniel Longworth, Salmon's former night supervisor and a

current machine operator, testified that he showed Salmon how to

operate the splitter machine.    Longworth stated that "chunks were

left inside the blades and you just knocked them out with your

hand."    Longworth claimed that there was enough time to safely

remove the chunks in this manner before the blade came on again,

and stated that all employees operated the machine the same way.

        Sherwood Randolph, another employee, testified that he

occasionally removed chunks from the splitter machine with his

hand.    David Church, the employee working with Salmon at the time

of the accident, stated that he was not aware of any particular




                                 - 3 -
company rule regarding reaching into the splitter machine.     He

stated that if a chunk was not pushed off by the next block, he

would remove it.   Ricky Stephens, another employee, testified

that on occasion, he had to reach into the machine very quickly

and remove chunks, as there was no other way to remove them.

Anthony Goode, another employee, admitted that the employees put

their hands into the machine to remove chunks, but denied that

they put their hands directly in the path of the blades.
     Victor Scopel, the night shift supervisor, testified that he

spent ninety percent of his time on the plant floor observing

employees.   Scopel had observed Salmon operating the splitter

machine on numerous occasions before his accident.    Scopel

admitted that he had never seen Salmon operate the splitter

machine in an unsafe or hazardous manner.    Scopel identified

various warning labels on the machine. 1   Scopel testified that

Salmon violated a safety rule when he placed his hand in a danger

zone, and something unexpected happened.    Scopel stated that an

employee should not place his hand in front of the blade while

the machine is on.   But rather, if a chunk fell to the side and

the block jammed, the employee should notify the operator to back

up the bar, and the operator would remove the block from the back
     1
      Employer did not appeal to the full commission the deputy
commissioner's finding that Salmon was not required to perform
the lock out/tag out procedure, nor did the deputy commissioner
make any finding of willful misconduct as it related to Salmon's
failure to heed warning signs. As a result, the commission
refused to consider those issues. Accordingly, we will not
consider those issues on appeal.




                               - 4 -
of the machine.   However, Scopel admitted that an employee

operating the splitter machine was required to remove chunks of

cement with his hands from time to time.    In fact, Scopel had

seen Salmon do so on prior occasions.

                       I.   WILLFUL MISCONDUCT

      Code § 65.2-306(A)(1) provides as follows:   "No compensation

shall be awarded to the employee . . . for an injury . . . caused

by:   1.   The employee's willful misconduct or intentional

self-inflicted injury . . . ."    "Whether an employee is guilty of

willful misconduct is a question of fact to be resolved by the

commission and the commission's finding is binding on appeal if

supported by credible evidence."     Adams ex rel. Boysaw v.

Hercules, Inc., 21 Va. App. 458, 463, 465 S.E.2d 135, 137 (1995).

      In holding that employer failed to prove that Salmon

committed willful misconduct, the commission found as follows:
               Salmon admitted that he knew that his
          hand was in the path of the blades, and knew
          that the blades posed some danger. He
          admitted fault after the accident, and
          admitted that he should not have performed
          the act which resulted in injury. We find
          such admissions establish no more than
          negligence, and confirm the obvious. Anyone,
          in hindsight, would have concluded that he
          should not have placed his hand in the
          machine, when such act resulted in severe
          injuries.
               We find that Salmon and other employees
          routinely reached into the path of the blades
          in order to perform their job of removing the
          chunks which had fallen. They received no
          formal training. The employer promulgated no
          specific rule prohibiting an employee from
          reaching into the machine to remove the
          chunks.
               At the time of his injury, we find that


                                 - 5 -
          Salmon was performing a normal and necessary
          part of his job, and that he placed his hand
          in a position that would be expected. Salmon
          testified, "I didn't think. I just -- it was
          my job to get it out." Although his act may
          have been negligent, or even grossly
          negligent, it does not rise to the level of
          willful misconduct. Contrary to the
          employer's assertion, we find that he did not
          intend to injure himself.


     The testimony of Salmon and his co-workers constitutes

credible evidence to support the commission's factual findings.

The record clearly established that employer did not train or

instruct its employees with respect to the method of removing

chunks from the splitter machine.    In addition, the employees

routinely reached into the machine with their hands to remove a

chunk, similar to Salmon's conduct when he was injured.    No

evidence proved that Salmon intended to commit an act which he

knew, or should have known, was wrongful or forbidden.
          "'Wilful' . . . imports something more than a
          mere exercise of the will in doing the act.
          It imports a wrongful intention. An
          intention to do an act that he knows, or
          ought to know, is wrongful, or forbidden by
          law. . . . There cannot, however, be a
          wilful failure to perform an unknown duty."


Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161

(1995) (quoting King v. Empire Collieries Co., 148 Va. 585,

590-91, 139 S.E. 478, 479 (1927)).

     Because credible evidence supports the commission's

findings, we cannot say that the commission erred in ruling that

employer failed to prove that Salmon was guilty of willful

misconduct.



                              - 6 -
         II.   WILLFUL VIOLATION OF A SAFETY RULE OR REGULATION

        Code § 65.2-306(A)(5) provides as follows:   "No compensation

shall be awarded to the employee . . . for an injury . . . caused

by: . . . 5.     The 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 . . . ."

        To establish a willful violation of a safety rule, employer

was required to 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."      Brockway, 20 Va.

App. at 271, 456 S.E.2d at 161.
               Whether the rule is reasonable and
          applies to the situation from which the
          injury results, and whether the claimant
          knowingly violated it, [are] mixed
          question[s] of law and fact to be decided by
          the commission 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 the
          employee's accident are issues of fact.

Id. at 271-72, 459 S.E.2d at 161.

        The safety rule at issue provided as follows:
             Never allow any part of your body to be in an
             awkward or precarious position. An awkward
             or precarious position is one that would
             result in your involvement in an accident if
             an unplanned event occurs.


        The commission refused to find that employer proved willful

misconduct due to the alleged violation of such an ambiguous

rule.    In so ruling, the commission found as follows:



                                  - 7 -
             [Salmon] testified that he did not know what
             this rule meant. We agree. The rule, as
             written, is so vague that it fails to place
             an employee on notice of the proscribed
             conduct.

              *      *          *        *      *        *   *

                  The employer's rule could cover almost
             any conduct on the part of an employee.
             Walking in the front door of the employer's
             premises could constitute an "awkward or
             precarious position," because it would result
             in the employee's "involvement in an
             accident" if an unplanned event occurred,
             e.g., the ceiling fell in. . . .
                  The employer promulgated a safety manual
             27 pages long. If it desired to prohibit
             employees from placing their hands in the
             path of the Splitter Machine blades, it could
             easily have done so. The employer chose not
             to do so.

     The testimony of Salmon and his co-workers constitutes

credible evidence to support the commission's factual findings.

Those findings support the commission's conclusion that "the

employer never specifically instructed Salmon, or any other

employee for that matter, not to place [his] hands in such a

position."    Based upon this record and the ambiguity of the

purported safety rule, we cannot say that the commission erred in

ruling that employer failed to prove that Salmon willfully

violated a reasonable safety rule.

                         III.       INJURY BY ACCIDENT

     Section I. of this opinion addressed the argument made by

employer with respect to the commission's finding regarding this

question.    Thus, we will not separately address this question.

     For the reasons stated, we affirm the commission's decision.



                                       - 8 -
        Affirmed.




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