Editor: Rachel Riordan, Esquire
Author: Robert McAdam, Esquire
The “Willful Misconduct Defense” has recently been given a boost by the Court of Appeals in Layne v Crist Elect. Contr., Inc. 64 Va. App. 342, 768 S.E.2d 261 (2015). Under familiar statutory law (Virginia Code §65.2-306(A)(5)) workers’ compensation benefits will be denied to a claimant when the claimant commits a willful breach of a workplace safety rule brought to his attention prior to the accident; even though the underlying event would otherwise be compensable. This statute was recently reinvigorated by Layne.
In Layne, the claimant was an employee of an electrical contractor and a subcontractor performing electrical work in a warehouse owned by Delta Star. The claimant was installing electrical conduit from a scissor lift high up in Delta Star’s core cutting room and had almost completed installing the conduit. Delta Star’s bridge crane, which was operational at the time, hit claimant’s scissor lift, causing both the scissor lift and claimant to fall far to the floor. The claimant sustained catastrophic injuries.
The Claimant’s accident arose out of and occurred in the course of the employment. However, the Employer raised a willful misconduct defense, asserting the bridge crane would not have hit the scissor lift, and the injuries would not have occurred, if the claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure. This procedure ensured that the electrified rails which allowed the bridge crane to move were inoperable, ensuring that the crane could not move.
At hearing, the evidence showed the claimant was never given any written materials addressing the “lockout-tagout” procedure and did not attend the employer’s formal safety orientation. However, the claimant was advised the open, electrified rails were dangerous and was told the importance of ensuring the bridge crane was locked out before working in that area. The evidence also showed the claimant had witnessed coworkers implement the “lockout-tagout” procedures in the past and the claimant would sometimes implement the “lockout-tagout” procedure by himself. In fact, he performed this procedure earlier in the morning on the day of the accident.
Following the evidentiary hearing, the Deputy Commissioner issued an Opinion barring benefits under §65.2-306(A)(5). The Full Commission affirmed.
The Court of Appeals affirmed the decision of the Full Commission. The Court restated familiar law that to successfully utilize the willful misconduct defense the Employer has the burden of proving that (1) the safety rule was reasonable; (2) the rule was known to the employee; (3) the rule was promulgated for the benefit of the employee; (4) the employee intentionally undertook the forbidden act.
The Court easily dispatched with the claimant’s arguments that the lockout procedure was not a safety rule and that the rule did not apply to the work that the claimant was performing when he was injured.
The claimant also argued that his conduct was negligent, not willful. The Court cited case law from the Supreme Court decisions over 70 years old for the proposition that willful means “with deliberate intent.” If the claimant knows the rule, and yet intentionally does the forbidden thing, he has willfully failed to obey the rule. It is not necessary for the employer to show that the claimant, having the rule in mind, determined to break it; it is enough to show that, knowing the rule, he intentionally performed the forbidden act.
This Opinion is significant for several reasons.
First, this opinion is published. Over 90% of the opinions from the Court of Appeals are designated as “unpublished” and as such, are merely persuasive and not binding authority.
Next, the willful misconduct defense was sustained in a case involving catastrophic injuries. Although from a legal perspective the severity of the injuries should not matter to judges, they are still human. Despite being confronted with a very seriously injured and sympathetic claimant, the Court strictly interpreted Virginia Code §65.2-306.
Finally, the Court did not consider it fatal to the Employer’s defense the fact that the claimant did not attend the employer’s formal safety training and was never given written materials addressing the procedure.
Suggested Practice Pointers
- Do not dismiss a willful misconduct defense just because the claimant did not attend a safety meeting or was not provided written safety materials.
- Obtain as much information from every potential witness at the job site. Focus in on the following:
a.) What is the safety rule in question that was violated?
b.) Was it designed for the benefit of the claimant?
c.) How was the claimant informed about the safety rule?
d.) Is there any evidence contradicting your position that the claimant was informed about the safety rule.
e.) Had the claimant implemented the safety rule in the past? If not, had he observed it being implemented?