Donald Wayne Ogburn v. Southside Gin, Inc. ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia
DONALD WAYNE OGBURN
v. Record No. 2174-96-2 MEMORANDUM OPINION * BY
JUDGE MARVIN F. COLE
SOUTHSIDE GIN, INC. AND MARCH 25, 1997
MERCHANTS OF VIRGINIA
GROUP SELF INSURANCE ASSOC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Peter D. Eliades (Marks & Harrison, P.C., on
brief), for appellant.
Bradford C. Jacob (William C. Walker; Taylor &
Walker, P.C., on brief), for appellees.
Donald W. Ogburn (claimant) appeals a decision of the
Workers' Compensation Commission (commission) denying him an
award of compensation benefits on the ground that his willful
violation of a known safety rule caused his injuries. Finding no
error, we affirm.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
So viewed, the evidence established that claimant worked for
employer as a gin helper. On December 18, 1994, employer
assigned claimant to work the 12:00 p.m. to 12:00 a.m. shift. At
approximately 4:00 p.m., employer instructed claimant to examine
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
lint cleaners to ensure that the cotton was running smoothly.
Claimant examined the lint cleaners while they were running.
Claimant observed wet, dirty cotton in one of the lint cleaners
slightly above head level. Claimant stepped onto a metal door
that was three to four inches above floor-level, and "the next
thing [he] knew, [his arms were] . . . in the machine." Claimant
denied reaching inside the lint cleaner or grabbing for anything
in the machine. He contended that he tried to determine if there
was wet, dirty cotton in the lint cleaner. He stated that if he
had seen wet, dirty cotton, he would have gone to the front of
the gin and reported it to the ginner. Claimant stated that he
did not know how the accident occurred. At the time of the
accident, claimant was wearing a long-john shirt with sleeves
that extended to his wrists and a football jersey with sleeves
that extended to his elbows.
Before claimant began working for employer, employer
required him to watch two safety videos and gave him a safety
booklet. The safety booklet contained instructions to employees
to obey all warning signs and tags and not to use their hands to
reach into a running machine. Claimant also admitted that
employer had instructed its employees not to place their hands in
the lint cleaners. Photographs of the lint cleaners identified
by claimant showed that each lint cleaner was equipped with a
warning label, which read as follows, "Do not reach inside
machine until you are certain power has been shut off and locked
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out and all motion has stopped."
Samuel Pope, employer's co-owner, testified that he did not
witness claimant's accident. However, immediately after the
accident, Pope observed claimant with his arms caught between
rollers numbered one and two as shown on photographs admitted
into evidence. Pope observed claimant standing on the machine,
with his arms down in the machine. Pope measured the machine
which caused claimant's injuries. Rollers numbered one and two
measured eight inches down from the top bar, which was sixty-six
inches from the floor. The parties stipulated that claimant is
five feet six inches tall. Pope stated that aside from placing
one's arms between the machine's rollers, nothing in the work
environment or the machine itself could have caused claimant's
arms to have been sucked into the machine.
Steven Dickens, who worked for employer at the time of
claimant's accident, testified via de bene esse deposition. On
December 22, 1994, Dickens had a telephone conversation with
claimant. Dickens memorialized that conversation in writing on
December 22, 1994 as follows:
I spoke with Donald Ogburn on December 22,
1994 concerning the accident that occurred on
December 18, 1994 at Southside Gin, Inc.
Donald stated that he walked to the rear of
the gin stands where the lint cleaners are
located. He saw cotton "backing up" on the
rollers above his head. Donald stated that
he then climbed up on the lint cleaner and
proceeded to pull the cotton out while the
lint cleaner was running. The rollers caught
his shirt sleeve and pulled hands and arms
into machine. Donald does not remember if it
was his shirt sleeve or hand that was first
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caught. It happened very fast. Donald also
stated that it was possible that he could
have slipped and attempted to catch himself
from falling.
Based upon this record, the commission held that employer's
evidence proved its affirmative defense of willful misconduct.
The commission found that the most plausible explanation for the
accident was that claimant intentionally reached into the machine
while it was in operation, resulting in his injuries. The
commission based this finding on the testimony of Pope and
Dickens, as well as Dickens' written statement memorializing his
telephone conversation with claimant.
"Willful misconduct requires something more than
negligence." Uninsured Employer's Fund v. Keppel, 1 Va. App.
162, 164, 335 S.E.2d 851, 852 (1985). "Disregard of an express
order, especially one made for the safety of the employees,
usually constitutes willful misconduct." Id. at 165, 335 S.E.2d
at 852. "'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.'"
Id. (quoting Mills v. Virginia Elec. & Power Co., 197 Va. 547,
551, 90 S.E.2d 124, 127 (1955)). This Court is bound by the
commission's factual findings if supported by credible evidence.
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
To prevail on its willful misconduct defense, employer was
not required to prove that the employee, with the safety rule in
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mind, purposefully determined to break it. Employer must only
show that, knowing the rule, the employee intentionally performed
the forbidden act. Spruill v. C.W. Wright Constr. Co., Inc., 8
Va. App. 330, 334, 381 S.E.2d 359, 361 (1989). Claimant conceded
that employer's two safety rules were reasonable, were known to
him, and were for his benefit.
The testimony of Pope and Dickens, as well as Dickens'
written statement, constitutes credible evidence to support the
commission's factual finding that claimant reached into the
machine to remove dirty, wet cotton, while the machine was
running, in violation of employer's safety rules. In addition,
claimant's stipulated height, combined with the undisputed
evidence of the layout of the lint cleaner, also provides
credible evidence to support the commission's finding. Based
upon this evidence, it was physically impossible for claimant's
arms to have been caught in the machine without him reaching into
it. "The fact that there is contrary evidence in the record is
of no consequence if there is credible evidence to support the
commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va.
App. 890, 894, 407 S.E.2d 32, 35 (1991).
By deliberately reaching into the machine while it was in
operation, claimant violated employer's known safety rules.
Therefore, the commission did not err in ruling that claimant is
barred from receiving any benefits under the Workers'
Compensation Act.
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For the reasons stated, we affirm the commission's decision.
Affirmed.
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