Uninsured Employers' Fund v. Curtis Mason ( 1996 )

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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