Dale Old, etc v. Darryll F. Huckaby ( 1995 )

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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