Rockingham, etc., et al. v Deborah Ann Eye, et al.

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Elder and Fitzpatrick

ROCKINGHAM CONSTRUCTION COMPANY

AND

CONTINENTAL INSURANCE COMPANY MEMORANDUM OPINION
PER CURIAM

Vv. Record No. 0112-96-4 JULY 16, 1996

DEBORAH ANN EYE, WIDOW OF
JERRY W. EYE
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Lisa C. Healey; Siciliano, Ellis, Dyer &
Boccarosse, on brief), for appellants.

(Samuel S. Price; Bushey & Price, on brief),
for appellee.

Rockingham Construction Company and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission erred in finding that employer failed to
prove that the application filed by Deborah Ann Eye, widow of
Jerry W. Eye ("decedent"), was barred by the decedent's willful
misconduct. Specifically, employer argues that the commission
erred in finding that employer's willful misconduct defense
failed because employer did not strictly enforce the safety rules
allegedly violated by the decedent at the time of his injury by
accident. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision. Rule

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

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5A:27.
An employee may rebut an employer's willful misconduct
defense with evidence of an employer's pattern or practice of
failing to discipline employees guilty of willful violations of a
safety rule, "but only when such violations occur 'under
circumstances charging an employer with knowledge and
acquiescence.'" 	Virginia Elec. and Power Co. v. Kremposky, 227
Va. 265, 270-71, 315 S.E.2d 231, 234 (1984) (citations omitted).
A ruling that an employer did not strictly enforce a safety rule
is a mixed question of law and fact, and is therefore, reviewable
by this Court on appeal. 	Id. at 270, 315 S.E.2d at 234.
On February 7, 1994, the decedent was electrocuted by
contacting an energized power line while installing a transformer
in the course of his employment. 	At the time of his death, the
decedent was not wearing rubber gloves or sleeves as required by
employer's safety rules.
Steve Hiett, the decedent's on-site foreman, who had worked
for employer for over fifteen years, testified unequivocally that
he never corrected or disciplined any employees, including the
decedent, for not wearing rubber gloves or sleeves. 	He stated
that an employee in the decedent's position, working underneath
"a primary" with a non-energized transformer, would not wear
gloves and sleeves eighty percent of the time. 	Hiett estimated
that over a two-year period he had observed the decedent
approximately 100 times working above the neutral without wearing

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rubber gloves and sleeves. 	Hiett testified that it was common
for the employees not to wear rubber gloves because they are
uncomfortable and stiff, and, as such, do not allow for the
dexterity that regular leather gloves provide. 	Hiett admitted
that he had violated the rule on previous occasions. 	He also
admitted that it was his duty to ensure that employees complied
with safety rules, but he failed to do so.
Mike Probus, Director of Compliance and Training, testified
that employer performed weekly or monthly unannounced safety
inspections. 	However, employer did not present any records of
any safety inspections of the decedent's crew. 	In addition,
Hiett testified that a company safety officer appeared at the
worksite only once every two to three months. 	Employer
introduced documentary evidence of only one pre-February 7, 1994
warning given for an employee's failure to wear rubber gloves and
sleeves. 	This warning was dated July 19, 1991.
The commission found Hiett's testimony credible. 	It is well
settled that the determination of a witness' credibility is
within the exclusive purview of the fact finder. 	Goodyear Tire &
Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437
(1987). 	Hiett's testimony established that employer knew of and
acquiesced in the employees' violations of the safety rule.
Hiett's testimony also established that employer followed a
pattern and practice of not enforcing the safety rule.
Accordingly, this evidence rebutted employer's willful misconduct

defense.
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For these reasons, we affirm the commission's decision.

Affirmed.