Herb O Byam v. North Star Construction Corp ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
HERB O. BYAM
MEMORANDUM OPINION* BY
v. Record No. 2783-02-1 JUDGE RUDOLPH BUMGARDNER, III
APRIL 8, 2003
NORTH STAR CONSTRUCTION CORPORATION AND
AMERICAN INTERSTATE INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Allen Lotz (Jeffrey F. Brooke; Huff, Poole &
Mahoney, P.C., on briefs), for appellant.
William C. Walker (Christopher J. Wiemken;
Taylor & Walker, P.C., on brief), for
appellees.
Herb O. Byam appeals the Workers' Compensation Commission's
denial of his claim for benefits on the ground that he willfully
violated a known safety rule, Code § 65.2-306. North Star
Construction Corporation appeals the commission's determination
that the worker's injury arose out of the employment. We
conclude credible evidence supports the commission's finding
that the worker willfully violated a safety rule and affirm.
The worker was an experienced steel worker employed by the
employer, a heavy highway construction company. On June 29,
1999, he was working on a bridge twenty-five feet off the ground
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
installing fall protection equipment. The worker fell and
sustained head and brain injuries. He has no recollection of
the fall, and no eyewitnesses observed him before the fall.
The deputy commissioner initially found the injury did not
arise out of the employment and denied benefits. The full
commission reversed and remanded the case. On remand, the
deputy commissioner denied benefits because the worker willfully
violated a safety rule, and the full commission affirmed.
To establish a willful violation of a safety rule, the
employer must prove: (1) the rule was reasonable; (2) the rule
was known to the employee; (3) the rule was promulgated for the
employee's benefit; and (4) the employee intentionally performed
the forbidden act. Code § 65.2-306 1 ; Buzzo v. Woolridge
Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208
(1993); Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334,
381 S.E.2d 359, 360-61 (1989). The worker concedes the evidence
established the first three elements of the defense. He
maintains no evidence showed he willfully violated the rule.
The issue of willful misconduct is a question of fact
binding on appeal if supported by credible evidence. Brockway
v. Easter, 20 Va. App. 268, 271-72, 456 S.E.2d 159, 161 (1995).
1
Code § 65.2-306(A)(5) provides that "[n]o compensation
shall be awarded to the employee . . . for an injury . . .
caused by . . . [t]he 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
. . . ."
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We review the evidence in the light most favorable to the
employer but do not retry the facts or reweigh the preponderance
of the evidence. Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991).
The employer's safety rule provided that when working six
feet above the ground or higher, workers must wear a safety
harness. The lanyard of the harness must be attached to a fixed
point at all times. The lanyard was a five-foot cord with a
hook at each end. The worker hooked one end to his harness and
the other to a fixed point.
The worker knew the consequences of failure to comply with
the rule and was conscientious about complying with it. He even
provided his own harness and quality lanyard because, "It's my
life, my lanyard." He conceded the employer required him to be
tied-off at all times while working on the bridge. He also
recalled being tied-off at all times on this job.
The worker was installing a fall protection system on a
bridge. Five steel girders or I-beams had been set across two
concrete abutments. The girders were secured by "X" shaped
cross frames, with steel horizontal members at the top and
bottom. The worker's task was to secure "L" shaped stanchions,
temporary vertical posts, with bolts to the top of each girder.
Once the stanchions were secured, a safety cable or lifeline was
suspended from one abutment to the other. The workers
installing the deck of the bridge would then hook to the cable.
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To install the stanchions, the worker would walk to the
base of the girder, hook his safety harness onto the cross
frame, and climb either the cross frame or a ladder 2 to the top
of the girder. The top of the girder was approximately nine
feet above the abutment and twenty-five feet above the road
below. The worker would sit on the girder and secure the bolts
into pre-drilled holes.
Stanchions five and four had been completely secured,
stanchion three was only partially bolted, and stanchions two
and one were not yet in position. The defendant landed on the
ground between girders three and two. John Liles, company
executive vice president and safety officer, concluded, "If Mr.
Byam fell from that bridge, he was installing fall protection at
the time that he fell." That was the only work being done on
the bridge at that time. The worker's harness was cut from his
body after the fall and admitted into evidence. It was intact.
Both lanyard hooks were attached to a hook on the back of the
harness. The harness and lanyard were not broken or defective.
The deputy concluded the worker was bolting stanchions as
assigned, he was not tied-off to a fixed object, and his injury
was caused by the failure to be tied-off. The commission's
finding is a reasonable inference from the fact that the
worker's harness and lanyard were intact, he was assigned to
2
When the worker fell, there was a ladder in place at
stanchion four.
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bolt stanchions, bolting the stanchions was the only job being
performed at that time, and he fell where the work was to be
performed.
The employer is not required "to prove that the employee
purposefully determined to violate the [safety] rule, only that,
'knowing the safety rule, the employee intentionally performed
the forbidden act.'" Buzzo, 17 Va. App. at 332, 437 S.E.2d at
208-09 (quoting Spruill, 8 Va. App. at 334, 381 S.E.2d at 361).
In Mills v. Virginia Elec. & Power Co., 197 Va. 547, 90
S.E.2d 124 (1955), the worker was injured while securing an
energized wire. The worker knew the wire was "live" and that he
was required to wear rubber gloves when working on live wires.
Id. at 549, 90 S.E.2d at 125. The Court found the defendant
guilty of willful misconduct because he was not wearing his
gloves. In denying his claim, the Court noted that
"If an employee with years of experience
. . . is to be allowed to recover
compensation on account of an injury due
directly to his disregard of an absolutely
fundamental measure of safety, which he
admits he well knew, then there would be no
class of cases in which the provisions of
. . . [Code § 65.2-306] of the act would
apply."
Mills, 197 Va. at 552, 90 S.E.2d at 127 (quoting Tate v.
Blackwood Coal & Coke Co., 11 O.I.C. 38, 41 (1929)).
In this case, the safety rule applied, the worker was an
experienced steel worker, knew about the rule and its purpose,
but was not in compliance when he was injured. The evidence
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supports the commission's finding that the employer proved the
affirmative defense.
The worker contends he rebutted the defense of violation of
a safety rule by either showing the rule was not enforced or the
job required him to be unhooked at times. Buzzo, 17 Va. App. at
332, 437 S.E.2d at 208.
The worker contends he could not perform his task while
tied-off to a fixed point at all times. He testified it was not
possible to be tied-off "[w]hen you're switching the lanyard
from one safe point to the other." Jesse Konefal, an employee
at the time, testified that the job required the worker to
unhook the lanyard "to get from where you were standing to where
you needed to be working."
Liles testified a worker could secure the stanchions in
place while tied-off at all times. A videotape shows the job
supervisor, Steve Marciniak, performing the worker's assigned
task. At no time was the worker unhooked when working over a
height. The assigned task did not contemplate movement from one
point to another while above the ground.
The deputy commissioner resolved any conflict in the
evidence in favor of the employer. Credible evidence supports
the deputy's conclusion that each stanchion could be bolted
while the safety harness was secured to a fixed point. There
was no legitimate reason for the worker not to use the safety
device.
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The worker also maintains the safety rule was not strictly
enforced. Whether the safety rule was not strictly enforced is
a mixed question of law and fact, and the commission's ruling is
not binding on appeal. Virginia Elec. & Power Co. v. Kremposky,
227 Va. 265, 270, 315 S.E.2d 231, 234 (1984).
In Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386,
393-94, 528 S.E.2d 162, 166 (2000), the worker injured her hand
while cleaning out debris from a machine. The employer defended
on the ground that she violated their safety rule by using her
hands to do so. The worker successfully rebutted the defense
because she testified her supervisor told her to use her hands,
she had observed him doing so, and other witnesses corroborated
her testimony.
In this case, the worker testified that wearing a harness
and being attached all the time when working on the bridge was
"the law." Liles and Marciniak both testified the safety rule
was enforced. State highway construction inspectors were at the
site daily and would have reported safety violations. No
violations were reported. Konefal's testimony was the only
evidence that the safety rule was not enforced. He testified
that he understood Marciniak wanted the workers to get the job
done quickly, and if that included failing to tie-off for
certain jobs, so be it. The commissioner believed the
employer's evidence. It was credible evidence and supports the
finding that the safety rule was strictly enforced.
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We conclude the commission did not err in finding that the
worker violated a known safety rule and failed to show he was
justified in doing so or to show the rule was not strictly
enforced. Accordingly, the commission's decision is affirmed. 3
Affirmed.
3
Since we find the worker was barred from receiving
benefits, we do not address the employer's cross-appeal that the
worker's injury did not arise out of the employment.
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