Sally Inez Adams, etc. v Hercules, Inc. et al

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia

SALLY INEZ ADAMS, on behalf of her niece,
JAMILL C. BOYSAW

Vv. Record No. 0260-94-3 OPINION BY
JUDGE SAM W. COLEMAN IIL
HERCULES, INC. and DECEMBER 29, 1995

INSURANCE COMPANY OF NORTH AMERICA

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Sally Inez Adams, pro se.

Monica L. Taylor (Melissa W. Scoggins; Dale W. Webb;
Gentry Locke Rakes & Moore, on brief), for appellee.

In this workers' compensation appeal, Sally Inez Adams, on
behalf of her niece, Jamill C. Boysaw, contends that the
commission erred in denying an award for death benefits pursuant
to Code § 65.2-512. The commission denied the claim under
Code § 65.2-306(A) (1) on the ground that Ivery Adams Boysaw
(Boysaw), the employee who died in an industrial accident,
engaged in willful misconduct. Because credible evidence
supports the commission's finding that Boysaw engaged in willful
misconduct, we affirm the denial of the claim.

Boysaw and Mary Scott Duncan, both of whom worked in the
solvents department at Hercules, Inc., died on October 18, 1991,
in the course of their employment while assisting with the
transfer of ether from a railroad car to a storage tank. The
storage tanks are located within a concrete enclosure called a

"dike," which controls spills from the tanks. Employees access

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the dike by climbing a set of metal stairs to a platform and
descending into the enclosed area. 	A sign at the top of the
steps states, "Danger," and warns that a permit is required for
entry. 	Co-workers found Boysaw and Duncan's bodies in the
containment dike surrounding tank W-9. 	Boysaw and Duncan died
from full cardiopulmonary arrest secondary to ether exposure.
Hercules contends that Boysaw and Duncan violated a company
safety rule by entering the dike without a confined space entry
permit. 	Prior to July 1990, employees could enter the dikes
without permits. 	In July 1990, however, the Safety Department at
Hercules sent to Monty Brown, the supervisor of the solvents
department, a memorandum requiring employees to obtain confined
space permits before entering the dikes. 	Brown called a meeting
on July 16, 1990, to discuss this memorandum and circulated a
written safety rule that required a confined space permit to
enter the dikes for any reason. 	The requirement to obtain a
confined space permit enables a safety inspector to measure the
concentration of ether vapors in the air before employees enter
the dike. 	Ether robs the air of oxygen, and prolonged exposure
to high levels of ether is dangerous and can be fatal. 	At the
close of the meeting, Brown asked the employees present to sign
the back of the rule. 	Boysaw was present and signed the rule,
which took effect immediately after the meeting.
Chevella Heslep, a safety inspector at the time of the

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accident, was responsible for granting permits for the solvents
area. 	According to Heslep, she "strictly" enforced the permit
rule, which was "for everyone's safety." 	Heslep testified that
she had granted permits to Boysaw and Duncan on several
occasions, but that neither employee requested a permit on the
evening of the fatal accident. 	Heslep further testified that she
saw Boysaw and Duncan's bodies in the dike, that the bodies were
saturated with ether, that the "Danger" sign posted at the
entrance to the dike was in place, and that Boysaw's hard hat and
a radio Boysaw and Duncan shared were on the platform under the
sign.
Charles Gardner, Director of Safety and Loss Prevention at
Hercules, investigated the accident and prepared a report of his
investigation. 	Gardner testified that Boysaw and Duncan were
responsible for controlling the valves during the ether transfer
to storage tanks W-12, W-10, and W-8, and that they did not have
to enter the dike to perform this operation. 	According to
Gardner, his investigation revealed that ether was mistakenly
pumped into tank W-9, and action was taken to "equalize" tanks
W-9 and W-10. 	To equalize the ether level between the two tanks
would require the operator to enter the dike and open the
discharge valves between them to reduce an overflow in one tank.
Hercules' policy does not allow equalization because it
contaminates the ether in the two vessels. 	Because tank W-10

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contained contaminated ether, and because ether stains were
present on the concrete floor of the dike surrounding tank W-9,
Gardner concluded that a spill had occurred due to the overflow
causing the operators to enter the dike to "equalize" the tanks.
Furthermore, Gardner testified that following the accident, he
recovered two buckets, one of which was partially filled with
ether, two dust pans, a broom, folded glasses, gloves, a pen, and
shoes from the confined area where the bodies were found. 	These
items also led Gardner to conclude that Boysaw and Duncan had
entered the dike to clean up the ether spill. 	The evidence also
showed that they had not obtained a confined space entry permit.
The deputy commissioner denied the claim for benefits on the
ground that Boysaw engaged in willful misconduct in violation of
Code § 65.2-306(A)(1) by entering the containment dike in
violation of a company safety rule. 	The full commission affirmed
the deputy commissioner's opinion.
The claimant contends, in effect, that, although Boysaw's
failure to follow a prescribed safety rule may have been
negligence, her actions could not be considered misconduct when
she was in good faith dealing with an emergency situation in
furtherance of her employer's business interest. 	She argues that
the commission's action barring a workers' compensation claim on
the ground of misconduct for acts that amount only to negligence
countermands the very purpose of the Workers' Compensation Act,

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which limits the amount that employees can recover from their
employers for workplace injuries in exchange for the employers
giving up certain common-law defenses, such as contributory
negligence and assumption of the risk. 	The claimant asserts that
because the defense of misconduct works a forfeiture of benefits,
it should be narrowly applied to acts where the employee was not
attempting to further the employer's business interest or was
clearly engaged in conduct outside of the employee's duties. 	As
persuasive as the claimant's argument may be, it is contrary to
established law in Virginia.
In Mills v. Virginia Electric & Power Co., 197 Va. 547, 90
S.E.2d 124 (1955), the Supreme Court upheld the commission's
finding that a lineman for VEPCO was guilty of willful misconduct
when he disregarded a company rule requiring that he wear rubber
gloves when working on an energized line. 	The Supreme Court said
in Mills: 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
case in which the provisions of Section 14
[now § 65.2-306(A)(1)] of the act would
apply.
Id. at 552, 90 S.E.2d at 127 (quoting Tate v. Blackwood Coal &
Coke Co., 11 O.I.C. 38, 41 (1929)). 	Although the lineman in
Mills was working in furtherance of his employer's business

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interest, his failure to comply with the safety rule was held to
be misconduct. 	Thus, we consider whether in this case the
evidence is sufficient to support the commission's finding of
willful misconduct.
To prevail on a claim for death benefits, a claimant must
prove a causal relationship between an industrial accident and
the employee's death. 	Lilly v. Shenandoah's Pride Dairy, 218 Va.
481, 483, 237 S.E.2d 786, 787 (1977). 	Hercules concedes that
Boysaw's death arose out of and during the course of her
employment. 	However, Hercules raises the affirmative defense of
willful misconduct.
To prevail on the defense of willful misconduct, the
employer must prove that (1) the safety rule was reasonable,
(2) the employee knew about the rule, (3) the rule was intended
for the employee's benefit, and (4) the employee intentionally
undertook the forbidden act. 	Spruill v. C.W. Wright Constr. Co.,
8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989). 	The claimant
concedes that the evidence supports the first three factors, but
contends that credible evidence does not support the finding that
Boysaw intentionally undertook the forbidden act.
Whether an employee is guilty of willful misconduct is a
question of fact to be resolved by the commission and the
commission's finding is binding on appeal if supported by
credible evidence. 	Watford v. Colonial Williamsburg Found., 13

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Va. App. 501, 505, 413 S.E.2d 69, 72 (1992). 	In determining on
appeal whether credible evidence supports the commission's
findings, this Court reviews the evidence in the light most
favorable to the prevailing party and does 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).
Although neither Boysaw nor Duncan requested a permit to
enter the dike area, their bodies were found in the dike and
Boysaw's hard hat and radio were found on the platform under the
"Danger" sign. 	Moreover, Gardner's testimony that someone
attempted to equalize tank W-9, together with the stains on the
floor of the dike and the items Gardner recovered from the dike
after the accident, were sufficient to prove that an ether spill
had occurred at the tank and that someone had attempted to clean
up the spill. 	Credible evidence, therefore, supported the
commission's finding that Boysaw and Duncan "intentionally
undertook the forbidden act" of entering the dike without a
confined space permit. 	Accordingly, absent proof by the claimant
of an applicable exception to the safety rule requiring that an
employee obtain an entry permit, or a valid reason for the
employee's failure to obtain the permit, the commission did not
err by denying the claim on the ground that Boysaw engaged in
willful misconduct.
A claimant may rebut the employer's willful misconduct

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defense "by showing that the rule was not kept alive by bona fide
enforcement or that there was a valid reason for his inability to
obey the rule." 	Buzzo v. Woolridge Trucking, Inc., 17 Va. App.
327, 332, 437 S.E.2d 205, 208 (1993). 	Both Heslep and Gardner
testified that Hercules "strictly enforced" the rule requiring a
permit to enter a confined space. 	Thus, unless the evidence
showed that Boysaw had a valid reason for failing to obey the
permit rule, the willful misconduct defense applies.
In Spruill, we held that credible evidence did not support
the commission's finding of willful misconduct because, although
the employer's rule required employees to wear gloves when
working on live power lines, "it was an accepted practice to work
on deenergized lines without the protection of rubber gloves."
Spruill, 8 Va. App. at 334, 381 S.E.2d at 361. 	We held that the
rule was inapplicable because the claimant knew about the
unwritten exception to the rule and believed the line he was
working on was deenergized. 	Id.
Here, the evidence showed that, at the time of the accident,
Hercules had adopted safety rules requiring employees to contain
spills under certain circumstances before notifying a supervisor.
At the hearing before the deputy commissioner, Heslep read
Hercules' Rule 5.1.10 of Procedure Number 4-2-1F, which states,
"[a]ll leaks, spills or overflows shall be contained, if
possible, and then supervision shall be notified immediately (see

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Procedure 4-2-25)." 	Furthermore, both Heslep and Gardner
testified that Rule 5.1.7 of Procedure Number 4-2-25 states,
"[i]f needed to control the spill or keep the incident from
getting worse, emergency measures first shall be taken and
supervision notified immediately after containing the spill is
accomplished." 	Heslep, however, testified that these rules do
not apply to spills in the dikes because such spills are already
"contained within [the dike's] concrete walls." 	In addition,
Gardner testified that the dikes were "approved confining
locations for the solvents, acids or whatever is contained in the
vessel," and that even if a spill did occur, an employee could
not enter the dike without a confined space permit.
Although claimant contends that Rule 5.1.10 does not apply
to leaks, spills, or overflows in the dike, Gardner's testimony
is the only evidence in the record that addresses the proper
interpretation and application of these rules. 	No evidence in
the record proves that Boysaw interpreted or understood Rule
5.1.10 to authorize or require her to contain a spill in the
dikes before notifying her supervisor or obtaining a permit.
Accordingly, the evidence does not provide a valid reason for
Boysaw's failure to obtain a permit before entering the dike.
We hold that credible evidence supports the commission's
finding that Boysaw engaged in willful misconduct by entering the
dike without a permit, and we affirm the denial of the claim.

Affirmed.
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