                     COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Bray
Argued at Norfolk, Virginia


DALE OLD, T/A
 DALE OLD WRECKER SERVICE

v.         Record No. 2013-94-1         MEMORANDUM OPINION * BY
                                     JUDGE JERE M. H. WILLIS, JR.
DARRYLL F. HUCKABY                           JULY 5, 1995


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Jeffery L. Nuckolls (Basnight, Jones, Wright,
           Kinser and Telfeyan, P.C., on briefs), for
           appellant.

           Carlton F. Bennett (Bennett and Zydron, P.C.,
           on brief), for appellee.



     On appeal from a decision of the Workers' Compensation

Commission awarding Darryll F. Huckaby temporary total disability

benefits from October 26, 1993 to March 2, 1994; temporary

partial disability benefits from March 3, 1994 and continuing;

and the reasonable costs of medical care related to the October

25, 1993 accident, Dale Old, t/a Dale Old Wrecker Service (Old),

contends (1) that Huckaby is not entitled to compensation because

sufficient evidence proved that Huckaby knowingly violated Code

§ 46.2-1094, constituting willful misconduct, and (2) that

sufficient evidence proved the existence of Old's safety rule

requiring the wearing of safety belts.    We find no error and

affirm the award.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
       Old employed Huckaby as a tow truck driver.   On October 25,

1993 while driving the tow truck and stopped at a stop light,

Huckaby was struck from behind.    He was thrown forward and hit

his right knee on the dashboard.     He was not wearing a seat belt

at the time.

       During the hearing before the deputy commissioner, Old

testified that he had an oral safety rule requiring all drivers

to wear safety belts while operating their tow trucks, and that

this rule was communicated to all drivers.    Ms. Earls, the office

manager at Dale Old, testified to the existence of the rule and

its communication to all drivers, including Huckaby.    Huckaby

testified that he had no knowledge of such a safety rule at Dale

Old.   However, he admitted that he knew of the statutory

requirement of Code § 46.2-1094 and admitted his failure to

comply with it.
       The deputy commissioner found that no safety rule existed at

Dale Old requiring the use of seat belts, but that Huckaby had

knowingly violated Code § 46.2-1094 and denied his claim.     On

review, the full commission reversed the deputy commissioner's

finding of willful misconduct.    It found no evidence that

Huckaby's failure to wear a seat belt was willful or intentional.

It further found the evidence insufficient to prove that if

Huckaby had been wearing his seat belt at the time of the

accident, this would have prevented the injury.

       The elements of the defense of willful misconduct are as




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follows:
          No compensation shall be awarded to the employee
       . . . for an injury or death caused by:

           1.     The employee's willful misconduct . . . ;

                    *    *    *    *      *   *      *

           4.     The employee's willful failure or
                  refusal to use a safety appliance or
                  perform a duty required by statute;

           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 . . . .

Code § 65.2-306(A).     "To successfully raise the defense of

willful misconduct, the employer must establish '(1) that the

safety rule [or other duty] was reasonable, (2) that the rule was

known to [the employee], (3) that the rule was for [the

employee's] benefit, and (4) that [the employee] intentionally

undertook the forbidden act.'"     Buzzo v. Woolridge Trucking,

Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208 (1993) (quoting

Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 381

S.E.2d 359, 360-61 (1989)).

     Willful misconduct requires something more than negligence.
 King v. Empire Collieries Co., 148 Va. 585, 590, 139 S.E. 478,

479 (1927).     "It imports a wrongful intention."       Id.   The

employer need not prove that the employee broke the rule

purposefully.    "It is sufficient to show that, knowing the safety

rule, the employee intentionally performed the forbidden act."

Riverside & Dan River Cotton Mills, Inc. v. Thaxton, 161 Va. 836,



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872, 172 S.E. 261, 264 (1934).    The evidence supports the finding

that Huckaby's failure to have his seat belt fastened at the time

of the accident was, at most, negligence.   No evidence proved

that he intentionally failed to fasten his seat belt.      Negligence

does not bar workers' compensation benefits.    Uninsured

Employer's Fund v. Keppel, 1 Va. App. 162, 165, 335 S.E.2d 851,

852 (1985).

     Furthermore, the evidence failed to prove that Huckaby would

not have suffered his injury had he been wearing a seat belt.

This failure of proof supports the commission's determination

that Huckaby's failure to wear a seat belt had not been proven to

be a proximate cause of his injury.
     "The questions of whether or not a claimant has been guilty

of willful misconduct and whether such misconduct was a proximate

cause of the employee's accident are issues of fact."       Mills v.

Virginia Electric & Power Co., 197 Va. 547, 551, 90 S.E.2d 124,

127 (1955).   "A factual finding by the commission 'will not be

disturbed on appeal' unless unsupported by credible evidence."
Buzzo, 17 Va. App. at 332-33, 437 S.E.2d at 209 (quoting Rose v.

Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 396

S.E.2d 392, 395 (1990)).

     The award is affirmed.

                                               Affirmed.




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