COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

TARMAC AMERICA, INC. AND 

 INSURANCE COMPANY OF THE 

 STATE OF PENNSYLVANIA 

 MEMORANDUM OPINION*

v. Record No. 1242-98-2 PER CURIAM 

 DECEMBER 8, 1998 

ROBERT LOUIS SALMON, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (S. Vernon Priddy, III; Patsy L. Mundy; 

Sands, Anderson, Marks & Miller, on brief), 

for appellants. 

 (Ruth E. Nathanson; Maloney, Huennekens, 

Parks, Gecker & Parsons, on brief), for 

appellee. 

 Tarmac America, Inc. and its insurer (hereinafter referred 

to as "employer") contend that the Workers' Compensation 

Commission ("commission") erred in finding that employer failed 

to prove that Robert Louis Salmon, Jr. (1) committed willful 

misconduct which barred his claim pursuant to Code 

§ 65.2-306(A)(1); or (2) willfully breached a reasonable rule or 

regulation adopted by employer which barred his claim pursuant to 

Code § 65.2-306(A)(5). Employer also contends that Salmon failed 

to prove that he sustained an injury by accident arising out of 

his employment on May 30, 1997. 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 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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decision. See Rule 5A:27. 

FACTS

 On appeal, we view the evidence in the light most favorable 

to the prevailing party, and we do not retry the facts or reweigh 

the preponderance of the evidence. See Wagner Enters., Inc. v. 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

 Salmon began working for employer in January 1997 as a cuber 

operator. He operated various machines, including the splitter 

machine. That machine split and cut pieces out of concrete 

blocks. Salmon had operated the splitter machine on six to 

twenty-four occasions before the day of his injury. 

 On May 30, 1997, after operating the splitter machine for 

one to one and one-half hours, a block came through the machine 

after being cut, and the blade would not move. Salmon removed 

the front piece of the block and saw a chunk of cement remaining 

in the machine. Salmon believed that he had time to remove the 

chunk, because no block was moving, which indicated that the 

blades were not moving. As he reached in to remove the chunk, 

the blades began to move, causing serious injuries to the fingers 

on his left hand. 

 Salmon had reached into the same area of the machine on 

prior occasions and had not been disciplined or corrected for 

doing so. Salmon knew the location of the blades. He stated 

that he would not have put his hand in the path of the blades if 

he had known they were moving. Salmon's only training on the 
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splitter machine occurred when he watched another employee 

operate the machine. Salmon testified that employer never 

specifically told him not to place his hands inside the machine, 

but only told him not to get his hands caught in the machine. No 

supervisor had ever instructed Salmon on how to remove a chunk of 

cement from the machine or ever corrected him with respect to the 

manner in which he operated the machine. Salmon stated that he 

had reached into the machine to remove chunks on prior occasions 

and that other employees did the same thing. He never saw any 

employee reprimanded for the manner in which they removed the 

chunks. Salmon was never instructed that when a chunk fell near 

the blade, he was to either shut off the machine or perform a 

lock out/tag out procedure. In addition, he never saw any 

employee perform the lock out/tag out procedure on the splitter. 

 Daniel Longworth, Salmon's former night supervisor and a 

current machine operator, testified that he showed Salmon how to 

operate the splitter machine. Longworth stated that "chunks were 

left inside the blades and you just knocked them out with your 

hand." Longworth claimed that there was enough time to safely 

remove the chunks in this manner before the blade came on again, 

and stated that all employees operated the machine the same way. 

 Sherwood Randolph, another employee, testified that he 

occasionally removed chunks from the splitter machine with his 

hand. David Church, the employee working with Salmon at the time 

of the accident, stated that he was not aware of any particular 
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company rule regarding reaching into the splitter machine. He 

stated that if a chunk was not pushed off by the next block, he 

would remove it. Ricky Stephens, another employee, testified 

that on occasion, he had to reach into the machine very quickly 

and remove chunks, as there was no other way to remove them. 

Anthony Goode, another employee, admitted that the employees put 

their hands into the machine to remove chunks, but denied that 

they put their hands directly in the path of the blades. 

 Victor Scopel, the night shift supervisor, testified that he 

spent ninety percent of his time on the plant floor observing 

employees. Scopel had observed Salmon operating the splitter 

machine on numerous occasions before his accident. Scopel 

admitted that he had never seen Salmon operate the splitter 

machine in an unsafe or hazardous manner. Scopel identified 

various warning labels on the machine.1

 Scopel testified that 

Salmon violated a safety rule when he placed his hand in a danger 

zone, and something unexpected happened. Scopel stated that an 

employee should not place his hand in front of the blade while 

the machine is on. But rather, if a chunk fell to the side and 

the block jammed, the employee should notify the operator to back 

up the bar, and the operator would remove the block from the back 

 1Employer did not appeal to the full commission the deputy 

commissioner's finding that Salmon was not required to perform 

the lock out/tag out procedure, nor did the deputy commissioner 

make any finding of willful misconduct as it related to Salmon's 

failure to heed warning signs. As a result, the commission 

refused to consider those issues. Accordingly, we will not 

consider those issues on appeal. 
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of the machine. However, Scopel admitted that an employee 

operating the splitter machine was required to remove chunks of 

cement with his hands from time to time. In fact, Scopel had 

seen Salmon do so on prior occasions. 

I. WILLFUL MISCONDUCT

 Code § 65.2-306(A)(1) provides as follows: "No compensation 

shall be awarded to the employee . . . for an injury . . . caused 

by: 1. The employee's willful misconduct or intentional 

self-inflicted injury . . . ." "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." Adams ex rel. Boysaw v. 

Hercules, Inc., 21 Va. App. 458, 463, 465 S.E.2d 135, 137 (1995). 

 In holding that employer failed to prove that Salmon 

committed willful misconduct, the commission found as follows: 

 Salmon admitted that he knew that his 

hand was in the path of the blades, and knew 

that the blades posed some danger. He 

admitted fault after the accident, and 

admitted that he should not have performed 

the act which resulted in injury. We find 

such admissions establish no more than 

negligence, and confirm the obvious. Anyone, 

in hindsight, would have concluded that he 

should not have placed his hand in the 

machine, when such act resulted in severe 

injuries. 

 We find that Salmon and other employees 

routinely reached into the path of the blades 

in order to perform their job of removing the 

chunks which had fallen. They received no 

formal training. The employer promulgated no 

specific rule prohibiting an employee from 

reaching into the machine to remove the 

chunks. 

 At the time of his injury, we find that 
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Salmon was performing a normal and necessary 

part of his job, and that he placed his hand 

in a position that would be expected. Salmon 

testified, "I didn't think. I just -- it was 

my job to get it out." Although his act may 

have been negligent, or even grossly 

negligent, it does not rise to the level of 

willful misconduct. Contrary to the 

employer's assertion, we find that he did not 

intend to injure himself. 

 The testimony of Salmon and his co-workers constitutes 

credible evidence to support the commission's factual findings. 

The record clearly established that employer did not train or 

instruct its employees with respect to the method of removing 

chunks from the splitter machine. In addition, the employees 

routinely reached into the machine with their hands to remove a 

chunk, similar to Salmon's conduct when he was injured. No 

evidence proved that Salmon intended to commit an act which he 

knew, or should have known, was wrongful or forbidden. 

 "'Wilful' . . . imports something more than a 

mere exercise of the will in doing the act. 

It imports a wrongful intention. An 

intention to do an act that he knows, or 

ought to know, is wrongful, or forbidden by 

law. . . . There cannot, however, be a 

wilful failure to perform an unknown duty." 

Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 

(1995) (quoting King v. Empire Collieries Co., 148 Va. 585, 

590-91, 139 S.E. 478, 479 (1927)). 

 Because credible evidence supports the commission's 

findings, we cannot say that the commission erred in ruling that 

employer failed to prove that Salmon was guilty of willful 

misconduct. 
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II. WILLFUL VIOLATION OF A SAFETY RULE OR REGULATION

 Code § 65.2-306(A)(5) provides as follows: "No compensation 

shall be awarded to the employee . . . for an injury . . . caused 

by: . . . 5. The 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 . . . ." 

 To establish a willful violation of a safety rule, employer 

was required to prove 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; and (4) the employee 

intentionally undertook the forbidden act." Brockway, 20 Va. 

App. at 271, 456 S.E.2d at 161. 

 Whether the rule is reasonable and 

applies to the situation from which the 

injury results, and whether the claimant 

knowingly violated it, [are] mixed 

question[s] of law and fact to be decided by 

the commission and reviewable by this Court. 

 But the questions of whether an employee is 

guilty of willful misconduct and whether such 

misconduct is a proximate cause of the 

employee's accident are issues of fact. 

Id. at 271-72, 459 S.E.2d at 161. 

 The safety rule at issue provided as follows: 

 Never allow any part of your body to be in an 

awkward or precarious position. An awkward 

or precarious position is one that would 

result in your involvement in an accident if 

an unplanned event occurs. 

 The commission refused to find that employer proved willful 

misconduct due to the alleged violation of such an ambiguous 

rule. In so ruling, the commission found as follows: 
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 [Salmon] testified that he did not know what 

this rule meant. We agree. The rule, as 

written, is so vague that it fails to place 

an employee on notice of the proscribed 

conduct. 

* * * * * * * 

 The employer's rule could cover almost 

any conduct on the part of an employee. 

Walking in the front door of the employer's 

premises could constitute an "awkward or 

precarious position," because it would result 

in the employee's "involvement in an 

accident" if an unplanned event occurred, 

e.g., the ceiling fell in. . . . 

 The employer promulgated a safety manual 

27 pages long. If it desired to prohibit 

employees from placing their hands in the 

path of the Splitter Machine blades, it could 

easily have done so. The employer chose not 

to do so. 

 The testimony of Salmon and his co-workers constitutes 

credible evidence to support the commission's factual findings. 

Those findings support the commission's conclusion that "the 

employer never specifically instructed Salmon, or any other 

employee for that matter, not to place [his] hands in such a 

position." Based upon this record and the ambiguity of the 

purported safety rule, we cannot say that the commission erred in 

ruling that employer failed to prove that Salmon willfully 

violated a reasonable safety rule. 

III. INJURY BY ACCIDENT

 Section I. of this opinion addressed the argument made by 

employer with respect to the commission's finding regarding this 

question. Thus, we will not separately address this question. 

 For the reasons stated, we affirm the commission's decision. 
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 Affirmed.