COURT OF APPEALS OF VIRGINIA

Present: Chief Ju dge Fitzpatrick, Judges Felton and Kelsey Argued at Chesapeake, Virginia

LAFAYETTE FINNEY MEMORANDUM OPINION * BY v. Record No. 2844-03-1 JUDGE WALTER S. FELTON, JR. JULY 13, 2004 DAVID F. MASON AND VIRGINIA FARM BUREAU FIRE & CASUALTY INSU RANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Allan D. Zaleski (Weisberg an d Zaleski, P.C., on brief), for appellant. Ralph L. Whitt, Jr. (Jennifer C. Williamson; Whitt & Associates, on brief), for appellees.
Lafayette Finney (Finney) appeals from a decision by the Workers’ Compensation Commission (the commission) hold ing that his failure to stop at a posted stop sign barred any award for compensation under Code § 65.2-306(A)(4). Finney contends that the commission erred when it found that credible evidence established that Finne y’s failure to stop at the stop sign constituted willful failure to perform a duty re quired by statute. For the reasons that follow, we reverse the commission’s decision and remand for further consideration.
BACKGROUND On appeal, we view the evidence in the light most favorable to the employer, the party prevailing below. Southland Corp. v. Gray , 18 Va. App. 366, 369, 444 S.E.2d 19, 21 (1994). The evidence establishes Finney was employed as a farm laborer by David F. Mason (employer).

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - On June 3, 2002, Finney was involved in an acciden t while driving a pickup truck belonging to the employer. Finney testified that he believed he was on his way to spray some peaches on one of the employer’s farms. He failed to stop at a posted stop sign at th e intersection of Daugherty Road (Route 648) and Route 13, a four-lane high way. The vehicle that he was driving on Daugherty Road was struck by a car traveling in the southbound lane of Route 13, resulting in serious injury to Finney, includi ng a fractured skull. He also suffered a fractured leg and rib. Finney’s head trauma caused partial memory lo ss, including his memory of the accident, and prevented him from returning to work. He filed a claim with his employer for workers’ compensation benefits. The deputy commissioner denied Finney’s claim for benefits, finding that he was barred from receiving benefits pursuant to Code § 65.2-306(A)(4); that hi s failure to obey the stop sign violated a duty imposed by statute; and that this failure was the cause of the accident. The full commission affirmed the findings of the deputy commissioner.
ANALYSIS On appeal, we are bound by factual findings made by the commission so long as credible evidence in the record supports those findi ngs. A.G. Van Metre, Jr., Inc. v. Gandy , 7 Va. App. 207, 215, 372 S.E.2d 198, 203 (1988). “Where reasonable inferences may be drawn from the evidence in support of the commissi on’s factual findings, they will not be disturbed by this Court on appeal.” VFP, Inc. v. Shepherd , 39 Va. App. 289, 292, 572 S.E.2d 510, 512 (2002) (citations omitted). We will not overturn the commission’s decision unless it is plainly wrong or without evidence to support it. Southland Corp. , 18 Va. App. at 369, 444 S.E.2d at 21. The full commission affirmed the decision of the deputy commissioner denying benefits to Finney on the grounds that he “did not stop at a posted stop sign in violation of the law, which was known to, and for the benefit of, [Finney] and that action caused the accident.” Finney contends- 3 - that the commission erred when it concluded that it was enough to me rely show he failed to stop at the stop sign in order to defeat hi s claim for benefits. He argues that the commission has, in effect, adopted a per se rule by its finding that any violation of a traffic law bars compensation as a “willful” failure “to perform a duty required by statute,” pursuant to Code § 65.2-306(A)(4). Simply stated, Finney contends that the commission failed to make a finding that his failure to stop was a willful and intentional disobedience to th e stop sign, and not a result of his negligence. Code § 65.2-306 provides, in pertinent part: A. No compensation shall be awarded to the employee or his dependents for an injury or death caused by: * * * * * * * 4. The employee’s willful failure or refusal to use a safety appliance or perform a du ty required by statute; * * * * * * * B. The person or entity asserti ng any of the defenses in this section shall have the burden of proof with respect thereto. The burden is on the employer claiming the de fense of willful misconduct to show that the employee willfully refused to perform a duty required by statute. King v. Empire Collieries
Co. , 148 Va. 585, 586, 139 S.E. 478, 479 (1927). We have previously stated that willful misconduct requires something more than negligence. “‘Negligence, regardless how gr oss, does not bar a recovery for workers’ compensation benefits.’” Harbin v. Jamestown Village Joint Venture , 16 Va. App. 190, 196, 428 S.E.2d 754, 757 (1993) (quoting Uninsured Employer’s Fund v. Keppel , 1 Va. App. 162, 165, 335 S.E.2d 851, 852 (1985)). Willful misconduct requires something more than negligence. “‘Willful’ . . . imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention.” One of the salutary purposes of worker’s compensation acts is to provide specified benefits for injuries aris ing out of and in the course of employment regardless of fault of the employer or employee,- 4 - except instances of willful misconduc t or intentional injury. The common law defense of contributor y negligence is abolished by the Act. Harbin , 16 Va. App. at 196, 428 S.E.2d at 757-58 (quoting Keppel , 1 Va. App. at 164, 335 S.E.2d at 852); see also Buzzo v. Woolridge Trucking, Inc. , 17 Va. App. 327, 332, 437 S.E.2d 205, 208 (1993). In Harbin , this Court held that an employee’s negligence in crossing the street against the light and outside of the pedestrian lane was not wi llful misconduct and was not a bar to his claim for workers’ compensation bene fits. 16 Va. App. at 197, 428 S.E.2d at 758. “Proof of negligence, even gross negligence, alone will not support the defense, for willful misconduct ‘imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention .’” Buzzo , 17 Va. App. at 332, 437 S.E.2d at 208 (quoting King , 148 Va. at 590, 139 S.E. at 479) (emphasis a dded). “‘Negligence conveys the idea of heedlessness, inattention, inadvertence; willfu lness and wantonness convey the idea of purpose or design, actual or constructive.’” 1 Infant C. v. Boy Scouts of America, Inc. , 239 Va. 572, 582, 391 S.E.2d 322, 327-28 (1990) (quoting Thomas v. Snow , 162 Va. 654, 660, 174 S.E. 837, 839 (1934)). Willful describes “[a] n intention to do an act that he knows, or ought to know, is wrongful, or forbidden by law. It involves the id ea of premeditation and determination to do the act, though known to be forbi dden.” Brockway v. Easter , 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995) (quoting King , 148 Va. at 590-91, 139 S.E. at 479). “A wilful [sic] failure or refusal to perfor m a duty required by statut e refers to a statute which has in some way been brought to the atte ntion of the employee, or of which he had knowledge.” Riverside and Dan River Cotton Mills v. Thaxton , 161 Va. 863, 871, 172 S.E. 261,

1 The Supreme Court has said that: “Gross negligence and ordinary negligence differ from one another only in degree, but the species of tortious co nduct which the authorities have variously labelled [sic] willful and wanton c onduct, or reckless misconduct, or willful and intentional conduct, differs in kind from both of them.” Infant C. , 239 Va. at 582, 391 S.E.2d at 328 (citing Kennedy v. McElroy , 195 Va. 1078, 1081, 81 S.E.2d 436, 439 (1954)).- 5 - 264 (1934) (citation omitted). While the term “wi llful” refers to intentionally performing the forbidden act, proof that the failu re to obey a statute was willful re quires proof that it was not a result of “heedlessness, inatten tion, [and] inadvertence.” Infant C. , 239 Va. at 582, 391 S.E.2d at 327-28 (citation omitted). Here, the employer had the burden of proving that Finney willfully failed to perform a statutory duty, namely to obey the stop sign. Th e record reflects that Finney was acting within the scope of his employment as he drove hi s employer’s vehicle on his way to spray his employer’s peach trees. It also reflects that Fi nney failed to stop at th e intersection of Daugherty Road and Route 13, an intersection controlled by a st op sign. As a result of his failure to stop at the posted stop sign, the collision occurred and Fi nney was seriously injured. Finney testified that he was familiar with the road and that he resided in the area. As a result of the serious head injury he suffered in the collision, Finney remembered nothing about the accident. An eyewitness to the collision testified that he did not observe Finney experiencing difficulty operating his vehicle. The driver of the vehicl e immediately behind Finney as he approached the stop sign testified that Finney was “traveling less than twenty-five m iles an hour . . . . He drove straight through the stop sign.” Finney was driving with his righthand on the steering wheel and his left elbow hanging out the window. As Finne y approached the stop sign, the witness did not see his brake lights come on. He te stified that Finney did not turn hi s head in either direction as he approached the intersection. The commission denied benefits to Finney becaus e he “did not stop at a posted stop sign in violation of the law, which was kn own to, and for the benefit of, [Fin ney] and that action caused the accident.” Absent from the commission’s decision was a determination that Finney willfully refused to obey the stop sign. While the commissi on noted that not all fa ilures to stop at a stop sign constitute willful misconduct, it limited as ac ceptable reasons for such failure “evidence of- 6 - the claimant’s truck malfunction or that he wa s otherwise prevented from stopping at the stop sign.” There is a distinct difference in a person’s violating a traffic statute by failing to stop at a stop sign, and in a person’s seeing the stop sign a nd deliberately refusing to obey it. Here the commission failed to distinguish whether Finney w illfully determined to disobey the stop sign, or whether he negligently or carelessly failed to obey the stop sign. Because “[n]egligence, regardless how gross, does not bar a recovery for workers’ compen sation benefits,” the commission was required to determine whether Fi nney intentionally or willfully disobeyed the stop sign, “with knowledge of a known hazard,” or whether he negligently failed to heed its command. Keppel , 1 Va. App. at 165, 335 S.E.2d at 852; see also Buzzo , 17 Va. App. at 334, 437 S.E.2d at 210. We decline to adopt a per se rule that any violation of any traffic law constitutes a willful failure to perform a duty required by statute under Code § 65.2-306(A)(4). We cannot glean from the record before us whether the commission determined that Finney made a willful and conscious decision to disobey the stop sign, or whether he negligently failed to obey the stop sign. In order to deny Finney benefits, the record must affirmatively reflec t that the claimant did more than simply violate the traffic statute. It must show that he in tentionally did so. See Code § 65.2-306(A)(4). In the absence of a specific finding that Fi nney intentionally determined to disobey the stop sign, the commission erred in denying benefits to him. Acco rdingly, we reverse and remand for it to determine from the evidence whether Finn ey’s failure to stop at the stop sign was willful and that it enter its awar d as may be appropriate. Reversed and remanded.- 7 - Kelsey, J., concurring, in pa rt, and dissenting, in part. I agree entirely with my colleagues on the legal standard governing a claimant’s “willful failure” to “perform a duty required by statut e.” Code § 65.2-306(A)(4). Neither simple nor gross negligence passes this test. I respectfully disagree, however, that the commission either misunderstood this standard or failed to make a “specific finding” of willfulness. Ante , at 6. Given the unique facts of this case, the deputy commissioner held the claim “was barred by willful misconduct.” See Finney v.
Mason , VWC File No. 210-04-75, 2003 WL 22507848, at *1 (Oct. 27, 2003). The unanimous commission affirmed, holding that “the claimant ‘willfully failed to perform a duty required by statute’ by failing to stop at the stop sign, ‘which was the cau se of this accident.’” Id. at *3 (citation omitted). In making this factual find ing, the commission made clear it understood that proof of “negligence, even gross negligence, alone will not support the defense, for willful misconduct ‘imports something more than a mere ex ercise of the will in doing the act. It imports a wrongful intention.’” Id. I also disagree that the commission, without saying as much, nevertheless applied “a per

se rule that any violation of any traffic law constitutes a willful failure to perform a duty required by statute under Code § 65.2-306(A)(4).” Ante , at 6. To the contrary, the commission carefully avoided doing so: “We note that we do not hold that in all cases a claimant is guilty of willful misconduct if the claimant fails to stop at a stop sign.” Finney , 2003 WL 22507848, at *3. For these reasons, I concur with the majority’s legal reasoning but not with its decision to reverse and remand. I would affirm the commission’s decision in full.