COURT OF APPEALS OF VIRGINIA
Present: Judges Alst on, O’Brien and AtLee Argued at Fredericksburg, Virginia

RODELL CALLAHAN MEMORANDUM OPINION * BY v. Record No. 0661-18-4 JUDGE ROSSI E D. ALSTON, JR. OCTOBER 23, 2018 RAPPAHANNOCK GOODWILL AND PENNSYLVANIA MANUFACTU RERS ASSOCIATION INSURANCE CO.

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Michael Herdman (Chasen & B oscolo, P.C., on brief), for appellant. Steven H. Theisen (Midkiff, M uncie, & Ross, P.C., on brief), fo r appellees.

Rodell Callahan (appellant) appe als the determination of the Wo rkers’ Compensation Commission (Commissi on), which denied his claim based on a fact ual finding that appellant willfully violated known safety r ules. Appellant specifically contends that the safety rules were not promulgated for the employees ’ benefit nor were they strict ly enforced. We affirm the Commission.
I. B ACKGROUND Appellant was employed by Rappahannock Goodwill (appellee). P art of his employment responsibilities incl uded driving a compa ny truck to transport donated goods to appellee’s warehouse. On October 10, 2016, appella nt sustained injuries w hile unloading donated goods from a company truck. Appellant f iled a claim for wage loss an d medical benefits. Prior to the

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - evidentiary hearing before th e deputy commissioner, appellee ra ised the defense that appellant willfully violated known safety rules. 1 At the hearing, appellant amende d his claim, seeking temporary total disability benefits from the injury date and contin uing, in addition to medical ben efits. Appellant then testified about the injury date. Appellant transported goods in a compan y truck to appellee’s warehouse. He drove into the lot and pulle d up to the loading dock. Accor ding to appellant, he complied with all safety rules before e xiting the truck by shifting into neutral, engaging the emergency brake, and inserting wheel chocks under the front and back tire s; one wheel chock was in the truck and the other was chaine d to the loading dock. Appellant then pulled the metal ramp down, which hooked onto the back of the truck. Appellant retri eved the forklift so he could unload the “Gaylord.” 2 Appellant maneuvered the forklif t into the back of the truck and picked up a wooden pallet on top of which s at the “Gaylord.” As appel lant reversed the forklift, the truck began to roll away from the loading dock. Appellant posi ted that the weight of the forklift caused the truck to bounce, which c ould have “knocked the gear off and caused [the truck] to roll.” This resulted in appella nt falling off the back of the truck while still ast ride the forklift. Appellant asserted that he neve r received safety training and stated that he was hired for his experience. Yet, appellant a dmitted that during the interv iew process, he received an employee manual which contained appellee’s vehicle safety polic y. It stated “[d]rivers are responsible for the security of [trucks] assigned to them. The vehicle engine must be shut off, ignition keys removed, and vehicle d oors locked whenever the ve hicle is left unattended.”

1 Although appellee’s defense initia lly included “willful miscon duct” language found in Code § 65.2-306(A)(1), considering the opinions, assignment of error, the parties’ briefs, and oral arguments, we confine our a nalysis to whether appellant wi llfully violated known safety rules, as discussed in Code § 65.2-306(A)(5).

2 It is a cardboard box “maybe four[- to-]five f[ee]t deep” which varies in weight depending on the goods it contains.- 3 - Appellant also noted that at som e point prior to the injury dat e, Heidi Dotson, appellee’s senior manager of after-market and dona ted goods’ trans portation, inst ructed him to use wheel chocks and not to keep the truck idling. A ppellant confirmed that he was assigned to veteran employees and stated their primary purpose was to familiarize appellant w ith routes. Appellant did concede that one of the veteran employees reminded him to turn off the ignition and insert the wheel chocks. Appellant also acknowledg ed that he attended two safet y meetings led by Dotson in August and September but could not recall the nature of the mee tings in great detail. Appellant maintained that he informed Dotson that the wheel chocks were d eteriorating and claimed that the brakes on the truck he drove were defective; however, he di d not mention these issues on the accident report. Dotson testified. Her job dutie s included interviewing driver s, overseeing their training, and instructing them on vehicle safety. She confirmed that she informed appellant of safety rules during the interview process, i ncluding securing trucks by remo ving the key from the ignition, engaging the brake, and chocki ng the wheels. Dotson provided a ppellant with the employee manual which contained the vehicl e safety rules. Appellant sig ned a document promising to read the manual. Dotson testified that the safety rules protect app ellee’s property. Beyond the interview process, D otson confirmed vetera n drivers were assign ed to appellant “so they could teach [appellant] what to do.” S he noted appellant attended tw o safety meetings she facilitated and clarified the purpose of each meeting. The agenda for the August meeting mentioned topics of discussion, which included s ecuring trucks by not idling and by locking truck doors. At some point afterwards, Dotson was in formed that employees had been l eaving trucks idling, but the identity of those noncompliant emp loyees was not revealed to he r. Therefore, at the September meeting, Dotson made clear that sh e was aware violations were o ccurring and admonished all employees. Dotson then revi ewed the safety rules.- 4 - She then testified that appella nt never mentioned issues with the wheel chocks or the truck brakes prior to the injury d ate. Further, that truck was serviced shortly be fore the injury date and the brakes were inspec ted shortly after. Documentatio n from those services did not reflect any issues with the brakes. Dotson also commented on t he brake systems in the company trucks; the setting of the eme rgency brake differed depending o n the year, make, and model of the truck. With regard to the t ruck appellant drove, she testi fied that to engage the emergency brake, it had to be pushed down. B oth parties introduced sever al exhibits, including photographs of the truck, the wheel chocks, and the lot. Following the evidentiary h earing, the deputy commissioner opi ned that appellant was barred from compensation because a ppellee sustained its burden of proving that appellee willfully violated known safety rules. The deputy commissioner made numerous factual findings. Appellee “established a nd communicated safety and pr operty protection rules” regarding securing trucks to appellant and other employees. Ap pellant “acknowledged his familiarity with specific safety rules” pertaining to securing trucks. Specifically, appellant “acknowledged that he knew, according to the established rules, when parking . . . at the . . . loading dock, he was to put the [tr uck] in neutral, engage the parking brake, turn off the ignition, remove the keys, and place wheel chocks under the rear and fron t tires.” With regard to the injury date, the deputy commissi oner found that appellant had “ parked the [truck] at the loading dock[,] . . . removed two or three carts of donations from the [truck’s] cargo area,” and “[drove] a forklift to remove [a ‘Gaylord’].” As appellant backed the f orklift out of the truck, the truck “[began] to roll away from th e loading dock.” Unaware, appella nt continued backing out “resulting in the for klift falling from the back of the [truck] and landing on the pavement.” The deputy commissioner then mentione d several photographs in evide nce. A photograph of the lot where appellant unloaded the tru ck revealed that the lot appear ed to be level. Photographs of the- 5 - wheel chocks reflected that the y were “in extremely poor condit ion.” The deputy commissioner noted that Dotson authenticated t he service and inspection reco rds of the truck demonstrating that the brakes were in “good working order.” The deputy commissioner found appe llee proved that the safety rules were reasonable, that they were known to appellant , and that they were promulgat ed for the employees’ benefit. As to whether appellant intenti onally violated the known safety rules, the deputy commissioner concluded that appellee also m et its burden. The deputy commis sioner noted appellant’s testimony “does not jibe with the physical evidence.” Particul arly, the deputy commissioner commented [that w]hile [he] might accept [appellant’s] opinion that the [ truck] may have rocked when the forklif t was driven into the cargo compartment, if [appellant] se t the emergency brake and placed the defective wheel chocks under th e tires as he testified, [the de puty commissioner could not] fathom a ny reason that the [truck] woul d have rolled away from th e loading dock. [The deputy commissioner was] left with the inescapable conclusion that [appellant] did not perform the sa fety measures as he testified . It stretches credulity that the [truck] could roll away from the l oading dock on a level surface with the emergency brake set and the wh eel chocks, albeit def ective, in place. Acknowledging appellant’s testim ony that the truck was not one he usually drove and Dotson’s testimony that brake systems differed depending on the truck, the deputy commissioner question[ed] whether an experien ced commercial vehicle driver .

. . would mistake whether a vehicl e emergency brake was engaged. [The deputy commissioner] als o note[d] that, contrary to [appellant’s] testimony regarding d efective brakes in the [truc k], it received routine maintenan ce less than a month prior to [appellant’s] accident, and rechecked after the accident, findi ng that the brakes were in working order. The deputy commissioner rejecte d appellant’s representation th at he followed protocol because “[h]is testimony is in direct conflict with the physica l evidence.” In addition, “there [wa]s no credible physical or docum entary evidence that there w as any defect with the [truck].”- 6 - The “great weight [of the evidence] militate[d] against [appell ant’s] version of the events,” and the deputy commissioner conclude d that appellant did not comply with safety rules although he was aware of them. Accordi ngly, the deputy commissioner found that appellant’s noncompliance was willful and “was a proximate cause of his inj uries.” Consequently, appellant’s claim was denied. He appealed that determination to the Commission. The Commission affirmed the depu ty commissioner’s opinion and adopted the factual findings and legal conclusions. S pecifically, the Commission f ound that appellee met its burden of proof in demonstrating that ap pellant “willfully breached [a ppellee’s] safety rules.” Appellee showed [that] the rules were a dopted in part for the benefit of employees. [Appellee] brought its safety rules to [appellant’s ] attention. The evidence did not e stablish [that appellee] fail ed to enforce its safety rules. [A ppellant] acknowledged he was aware of the rules and followed them. Further, the Commission noted a ppellant’s argument amounted to a request that the Commission find that the emergenc y brake and the wheel chocks f ailed. In this regard, the documentation indicated that there were no brake defects. Phot ographs of the lot “depict[ed] a gradual slope in the area wher e the truck was parked,” and phot ographs of the wheel chocks, “although worn, [demonstrated that they] looked sufficient to p revent the accident in question if properly used.” Ultimately, the Commission did “not believe [a ppellant] placed the wheel chocks as required.” It was a ppellant’s “[f]ailure to engage t he emergency brake and to install the chocks [which] caused the [tr uck] to move while [appellant] was using the forklift, resulting [in] his injuries.” Accordingly, appellee “proved willful misc onduct and [appellant’s] claim is barred.” Now comes this appeal.- 7 - II. A NALYSIS “Code § 65.2-306(A) states, in per tinent part, ‘[n]o compensat ion shall be awarded to the employee or his dependents fo r an injury or death caused by . . . [t]he employee’s willful breach of any reasonable rule or regul ation adopted by the employer an d brought, prior to the accident, to the knowledge of the emp loyee . . . .’ Code § 65.2-306(A)(5 ).” Layne v. Crist Elec. Contr., Inc., 64 Va. App. 342, 349, 768 S.E.2d 261, 264 (2015). “[T]he party raising a defense under Code § 65.2-306(A) ‘shall have the burden of proof with respect thereto.’” Id. (quoting Code § 65.2-306(B)). That party, in th is case, is appellee. To prevail on the defense of a w illful violation of a safety ru le, [appellee] must prove that: (1) t he safety rule was reasonable ; (2) the rule was known to the e mployee; (3) the rule was promulgated for the benefit of t he employee; and (4) the employ ee intentionally undertook th e forbidden act. Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 393, 5 28 S.E.2d 162, 165 (2000) (citing Owens Brockway & Nat’l Union Fire Ins. Co. v. Easter, 2 0 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995) (citation omitted)). With respect to ap pellant’s intention, [i]f the safety rule is reasonable and is known to the employee and for his benefit, and yet he int entionally does the forbidden ac t, then he is guilty of willful misconduct within the meaning of [forme r] § 65-35. The employer is not required to prove that the employ ee, with the rule in mind, purpos ely determined to break it. Layne, 64 Va. App. at 350, 768 S.E.2d at 265 (quoting Mills v. Virginia Elec. & Power Co., 197 Va. 547, 552, 90 S.E.2d 124, 127 (1955)). “[T]he employee may rebut the defense by showing that the rule was not kept alive by bona fide enforcement or th at there was a valid reason for [his] inability to obey the rule.” Gwaltney of Smithfield, Ltd., 32 Va. App. at 393, 528 S.E.2d at 165-66 (quoting Buzzo v. Woolri dge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208 (1993)).- 8 - We further acknowledge that the determinations of [w]hether the rule is reasonabl e and applies to the situation f rom which the injury results, and w hether [appellant] knowingly violated it, is a mixed ques tion of law and fact to be decided by the [C]ommission and revie wable by this Court. But the questions o f whether an employee is guilty of willful misconduct and whether such misconduct is a proximate cause of [appellant’s] accident are issues of fact. Owens Brockway, 20 Va. App. at 271-72, 456 S.E.2d at 161 (quoti ng Mills, 197 Va. at 552, 90 S.E.2d at 127). In addition, “[w]hether the evidence was suffi cient to demonstrat e that the safety rule was not strictly enforced i s a mixed question of law and f act, and the [C]ommission’s ruling is not binding on appeal.” Gwaltney of Smithfield, Ltd., 32 Va . App. at 393, 528 S.E.2d at 165-66 (citing Virginia Elec. & Power Co. v. Kremposky, 227 Va. 265, 270, 315 S.E.2d 231, 234 (1984)). “Factual findings of the [C]omission will not be disturbed on appeal unless plainly wrong or without credible eviden ce to support them.” Smith-Ada ms v. Fairfax Cty. Sch. Bd., 67 Va. App. 584, 590, 798 S.E.2d 466, 469 (2017) (quoting Ga. Pac. Corp. v. Dancy, 17 Va. App. 128, 135, 435 S.E.2d 898, 902 (1993)). “In determining whether credible evidence exists, [this C]ourt does not retry the facts , reweigh the preponderance of t he evidence, or make its own determination of the credibil ity of the witne sses.” Id. (quoti ng Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991)). We “consider[] the evidence in t he light most favorable to the prevailing party, in this case, [appellee].” Smith-Adams, 67 Va. App. at 590, 798 S.E.2d at 469. The Commission found that appellee met its burden of proof demonstrating that appell ant willfully violated a known safety rule. We agree. The record supports the conclusion tha t reasonable safety rules regarding securing company trucks existed. T hese rules were communicated to appellant through several methods: Dotson informed him of the safety rules during the hi ring process; appellant was given an employee manual containing the rules; appellant signed a doc ument promising to read those- 9 - safety rules; appellant was re minded of the safety rules at two safety meetings; and finally, the safety rules were reiterated dur ing ride-alongs with at least o ne veteran employee. The Commission also ruled that th e safety rules were promulgat ed “in part for the benefit of the employee” even though Dotson testified that the safety r ules were promulgated to protect company assets. A safety rule may have numerous benefits. It is of no significant moment that the safety rules regarding secu ring trucks may also have been p romulgated for the employees’ safety. Neither the statute nor c ase law suggests that safety rules must be promulgated “solely” for the benefit of employees. See Owens Brockway, 20 Va. App. at 271, 456 S.E.2d at 161 (noting only that the safety rul e be “promulgated for the benef it of the employee”); Fairfax Cty. Gov’t v. Monroe, No. 1628-14-4, 2015 V a. App. LEXIS 125 (Va. Ct . App. April 14, 2015) (indicating that the safety rules at issue, which “mandate[ed] professional conduct in the workplace[,] have a myriad of purposes and benefit both employe rs and employees”). 3
The Commission also determined tha t appellant’s violation was willful. Appellant was clearly aware of and understood the safety rules as outlined ab ove. Appellant testified that he was compliant; he allegedly set the gear in neutral, engaged th e emergency brake, removed the key from the ignition, and properly placed the wheel chocks bef ore unloading the truck. Appellant posited that the weight of the forklift caused the tr uck to bounce, moving the gearshift out of place, causing the truck to roll away. Appellant furthe r supported his theory by highlighting the deterioration of the wheel chocks and claiming that the emergency brake was defective. The Commission consider ed the truck’s maintenance a nd inspection records, reflecting no brake issue. The C ommission then scrutinized the photographs of the lot and the worn chocks as well as appellant’s testimony. The Commission d id “not believe [appellant]

3 “Although not binding precedent, unpublished opinions can be c ited and considered for their persuasive value.” Otey v. Commonwealth, 61 Va. App. 346 , 350 n.3, 735 S.E.2d 255, 257 n.3 (2012) (citing Rule 5A:1(f)).- 10 - placed the wheel chocks as required,” and this Court finds that sufficient evidence supports the Commission’s conclusion. In maki ng that assessment, the Commis sion noted that the wheel chocks, even in their deteriorat ed state, would have prevented the accident if properly used, particularly in light of the phot ograph of the lot which showed , at most, a gradual slope. We further note appellant’s and Dot son’s testimony regarding the p rocess of engaging the emergency brake on this particular truck w as inconsistent. The Commissio n concluded that appellant’s own failures resulted in hi s injuries by finding t hat his “[f]ailur e to engage the emergency brake and to install the chocks caused the [ truck] to move while [appella nt] was using the forklift, resulting [in] his injuries.” In addition, appellant failed t o rebut appellee’s defense. Th e Commission found that the evidence did not establish that the safety rule was not enforce d. See Mouhssine v. Crystal City Laundry, 62 Va. App. 65, 72-73, 741 S.E.2d 804, 808 (2013) (not ing that “[w]hile the Virginia Workers’ Compensation (the Act) has never actually included any such language in its statutory test, Virginia’s case law addr essing the defense . . . has incl uded consideration of whether there was ‘strict enforcement’ or ‘bona fide enforcement’ of the appl icable workplace safety rules”). This analysis concerns “the em ployer’s efforts to achieve its e mployees’ compliance with the workplace safety rule—not n ecessarily . . . any specific punish ment given to a particular employee who has failed to comply.” Id. at 75, 741 S.E.2d at 8 09 (citing Peanut City Iron & Metal Co. v. Jenkins, 207 Va. 399, 150 S.E.2d 120 (1966); 9 Art hur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 35.03). As stated above, these safety rules were communicated to employees in a var iety of ways. When Dotson wa s informed that violations of these safety rules had occurred, the informants did not reveal the violators’ identity. Nevertheless, Dotson took action; she admonished all employees at the September safety meeting and reiterated the safet y rules. Accordingly, Dotson “ made a bona fide effort to require- 11 - [appellant] and . . . other . . . employees to comply with [tho se rules],” id. at 76, 741 S.E.2d at 810, and “[did] not condone[] or ac quiesce[] in [the safety rul es’] violation,” id. at 77, 741 S.E.2d at 810 (citing Jenkins, 207 Va. at 406, 150 S.E.2d at 12 5).
III. C ONCLUSION Appellee sustained its burden of proving that appellant willfu lly violated known safety rules, and appellant failed to reb ut that defense. Appellant’s claim was properly denied. We affirm the Commission. Affirmed.