COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

JOSE O. PEREZ 

 MEMORANDUM OPINION*

v. Record No. 0525-97-3 PER CURIAM 

 JULY 29, 1997 

BLAUCH BROTHERS, INC. AND 

 VIRGINIA CONTRACTORS GROUP 

 SELF-INSURANCE ASSOCIATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (A. Thomas Lane, Jr., on brief), for 

appellant. 

 (Cathleen P. Welsh; Wharton, Aldhizer & 

Weaver, on brief), for appellees. 

 Jose O. Perez (claimant) contends that the Workers' 

Compensation Commission (commission) erred in finding that his 

claim for an award of compensation benefits was barred by his 

willful violation of a safety rule. 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 5A:27. 

 "To prevail on the defense of a willful violation of a 

safety rule, employer must 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 v. 

Easter, 20 Va. App. 268, 271, 456 S.E.2d 159, 161 (1995). 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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 Whether the rule is reasonable and 

applies to the situation from which the 

injury results, and whether the claimant 

knowingly violated it, is a mixed question 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, 456 S.E.2d at 161. Factual findings made by the 

commission will be upheld on appeal if supported by credible 

evidence. See James v. Capitol Steel Constr. Co., 8 Va. App. 

512, 515, 382 S.E.2d 487, 488 (1989). 

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

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 So viewed, the evidence established that on December 5, 

1995, claimant and a co-worker were using a manlift1 to drill 

four-inch holes in a ceiling. Because they were unable to move 

close enough to the ceiling with the manlift to perform their 

work, claimant placed a two-foot by six-foot plank on the top of 

the guard rails and used the plank as a raised platform to 

perform the work. While performing this work, claimant fell 

approximately thirty feet to the floor below. 

 Prior to claimant's accident, Donald Stewart, a sales 

representative for Equipco Rental Sales, instructed all 

 

 1A manlift is a four by six foot platform with four guard 

rails around it. The guard rails are approximately one and 

one-half feet above the platform. A manlift can be operated to 

move horizontally and vertically. 
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employees, including claimant, on the proper operation of the 

manlift. Stewart instructed them not to climb on the guard 

rails, not to place any objects from one side to the other to 

stand on, and to not use boxes or ladders while on the manlift. 

Stewart also told them to keep their feet on the deck of the 

manlift. In addition, a co-worker testified that the employees' 

supervisor had specifically instructed the employees not to use 

ladders or boxes on the manlift in order to extend their reach. 

Claimant admitted that he had read a warning placard on the 

manlift, which cautioned employees not to stand or sit on the 

guard rails. 

 Based upon this credible evidence, the commission properly 

concluded that claimant violated a reasonable safety rule known 

by him and promulgated for his benefit, and that he intentionally 

undertook to perform the forbidden act. Claimant's willful 

disregard of the safety rule proximately caused his injuries. 

 In its role as fact finder, the commission was entitled to 

accept this evidence over claimant's self-serving testimony to 

the contrary. In addition, the commission was entitled to accept 

the testimony of claimant's supervisors, who denied any knowledge 

of instances prior to claimant's accident when the safety rule 

was not enforced. "In determining whether credible evidence 

exists, the appellate court does not retry the facts, reweigh the 

preponderance of the evidence, or make its own determination of 

the credibility of the witnesses." Wagner Enters., Inc. v. 
 4 

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 
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 For these reasons, we affirm the commission's decision. 

 Affirmed.