COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

ROCKINGHAM CONSTRUCTION COMPANY 

AND 

CONTINENTAL INSURANCE COMPANY MEMORANDUM OPINION*

 PER CURIAM 

v. 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. 
 2 

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

 Affirmed.