COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Overton 

Argued at Salem, Virginia 

SALLY INEZ ADAMS, on behalf of her niece, 

 JAMILL C. BOYSAW 

v. Record No. 0260-94-3 OPINION BY 

 JUDGE SAM W. COLEMAN III 

HERCULES, INC. and DECEMBER 29, 1995 

 INSURANCE COMPANY OF NORTH AMERICA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Sally Inez Adams, pro se. 

 Monica L. Taylor (Melissa W. Scoggins; Dale W. Webb; 

 Gentry Locke Rakes & Moore, on brief), for appellee. 

 In this workers' compensation appeal, Sally Inez Adams, on 

behalf of her niece, Jamill C. Boysaw, contends that the 

commission erred in denying an award for death benefits pursuant 

to Code § 65.2-512. The commission denied the claim under 

Code § 65.2-306(A)(1) on the ground that Ivery Adams Boysaw 

(Boysaw), the employee who died in an industrial accident, 

engaged in willful misconduct. Because credible evidence 

supports the commission's finding that Boysaw engaged in willful 

misconduct, we affirm the denial of the claim. 

 Boysaw and Mary Scott Duncan, both of whom worked in the 

solvents department at Hercules, Inc., died on October 18, 1991, 

in the course of their employment while assisting with the 

transfer of ether from a railroad car to a storage tank. The 

storage tanks are located within a concrete enclosure called a 

"dike," which controls spills from the tanks. Employees access 
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the dike by climbing a set of metal stairs to a platform and 

descending into the enclosed area. A sign at the top of the 

steps states, "Danger," and warns that a permit is required for 

entry. Co-workers found Boysaw and Duncan's bodies in the 

containment dike surrounding tank W-9. Boysaw and Duncan died 

from full cardiopulmonary arrest secondary to ether exposure. 

 Hercules contends that Boysaw and Duncan violated a company 

safety rule by entering the dike without a confined space entry 

permit. Prior to July 1990, employees could enter the dikes 

without permits. In July 1990, however, the Safety Department at 

Hercules sent to Monty Brown, the supervisor of the solvents 

department, a memorandum requiring employees to obtain confined 

space permits before entering the dikes. Brown called a meeting 

on July 16, 1990, to discuss this memorandum and circulated a 

written safety rule that required a confined space permit to 

enter the dikes for any reason. The requirement to obtain a 

confined space permit enables a safety inspector to measure the 

concentration of ether vapors in the air before employees enter 

the dike. Ether robs the air of oxygen, and prolonged exposure 

to high levels of ether is dangerous and can be fatal. At the 

close of the meeting, Brown asked the employees present to sign 

the back of the rule. Boysaw was present and signed the rule, 

which took effect immediately after the meeting. 

 Chevella Heslep, a safety inspector at the time of the 
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accident, was responsible for granting permits for the solvents 

area. According to Heslep, she "strictly" enforced the permit 

rule, which was "for everyone's safety." Heslep testified that 

she had granted permits to Boysaw and Duncan on several 

occasions, but that neither employee requested a permit on the 

evening of the fatal accident. Heslep further testified that she 

saw Boysaw and Duncan's bodies in the dike, that the bodies were 

saturated with ether, that the "Danger" sign posted at the 

entrance to the dike was in place, and that Boysaw's hard hat and 

a radio Boysaw and Duncan shared were on the platform under the 

sign. 

 Charles Gardner, Director of Safety and Loss Prevention at 

Hercules, investigated the accident and prepared a report of his 

investigation. Gardner testified that Boysaw and Duncan were 

responsible for controlling the valves during the ether transfer 

to storage tanks W-12, W-10, and W-8, and that they did not have 

to enter the dike to perform this operation. According to 

Gardner, his investigation revealed that ether was mistakenly 

pumped into tank W-9, and action was taken to "equalize" tanks 

W-9 and W-10. To equalize the ether level between the two tanks 

would require the operator to enter the dike and open the 

discharge valves between them to reduce an overflow in one tank. 

 Hercules' policy does not allow equalization because it 

contaminates the ether in the two vessels. Because tank W-10 
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contained contaminated ether, and because ether stains were 

present on the concrete floor of the dike surrounding tank W-9, 

Gardner concluded that a spill had occurred due to the overflow 

causing the operators to enter the dike to "equalize" the tanks. 

Furthermore, Gardner testified that following the accident, he 

recovered two buckets, one of which was partially filled with 

ether, two dust pans, a broom, folded glasses, gloves, a pen, and 

shoes from the confined area where the bodies were found. These 

items also led Gardner to conclude that Boysaw and Duncan had 

entered the dike to clean up the ether spill. The evidence also 

showed that they had not obtained a confined space entry permit. 

 The deputy commissioner denied the claim for benefits on the 

ground that Boysaw engaged in willful misconduct in violation of 

Code § 65.2-306(A)(1) by entering the containment dike in 

violation of a company safety rule. The full commission affirmed 

the deputy commissioner's opinion. 

 The claimant contends, in effect, that, although Boysaw's 

failure to follow a prescribed safety rule may have been 

negligence, her actions could not be considered misconduct when 

she was in good faith dealing with an emergency situation in 

furtherance of her employer's business interest. She argues that 

the commission's action barring a workers' compensation claim on 

the ground of misconduct for acts that amount only to negligence 

countermands the very purpose of the Workers' Compensation Act, 
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which limits the amount that employees can recover from their 

employers for workplace injuries in exchange for the employers 

giving up certain common-law defenses, such as contributory 

negligence and assumption of the risk. The claimant asserts that 

because the defense of misconduct works a forfeiture of benefits, 

it should be narrowly applied to acts where the employee was not 

attempting to further the employer's business interest or was 

clearly engaged in conduct outside of the employee's duties. As 

persuasive as the claimant's argument may be, it is contrary to 

established law in Virginia. 

 In Mills v. Virginia Electric & Power Co., 197 Va. 547, 90 

S.E.2d 124 (1955), the Supreme Court upheld the commission's 

finding that a lineman for VEPCO was guilty of willful misconduct 

when he disregarded a company rule requiring that he wear rubber 

gloves when working on an energized line. The Supreme Court said 

in Mills: 

 If an employee with years of experience 

. . . is to be allowed to recover 

compensation on account of an injury due 

directly to his disregard of an absolutely 

fundamental measure of safety, which he 

admits he well knew, then there would be no 

case in which the provisions of Section 14 

[now § 65.2-306(A)(1)] of the act would 

apply. 

Id. at 552, 90 S.E.2d at 127 (quoting Tate v. Blackwood Coal & 

Coke Co., 11 O.I.C. 38, 41 (1929)). Although the lineman in 

Mills was working in furtherance of his employer's business 
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interest, his failure to comply with the safety rule was held to 

be misconduct. Thus, we consider whether in this case the 

evidence is sufficient to support the commission's finding of 

willful misconduct. 

 To prevail on a claim for death benefits, a claimant must 

prove a causal relationship between an industrial accident and 

the employee's death. Lilly v. Shenandoah's Pride Dairy, 218 Va. 

481, 483, 237 S.E.2d 786, 787 (1977). Hercules concedes that 

Boysaw's death arose out of and during the course of her 

employment. However, Hercules raises the affirmative defense of 

willful misconduct. 

 To prevail on the defense of willful misconduct, the 

employer must prove that (1) the safety rule was reasonable, 

(2) the employee knew about the rule, (3) the rule was intended 

for the employee's benefit, and (4) the employee intentionally 

undertook the forbidden act. Spruill v. C.W. Wright Constr. Co., 

8 Va. App. 330, 334, 381 S.E.2d 359, 360-61 (1989). The claimant 

concedes that the evidence supports the first three factors, but 

contends that credible evidence does not support the finding that 

Boysaw intentionally undertook the forbidden act. 

 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. Watford v. Colonial Williamsburg Found., 13 
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Va. App. 501, 505, 413 S.E.2d 69, 72 (1992). In determining on 

appeal whether credible evidence supports the commission's 

findings, this Court reviews the evidence in the light most 

favorable to the prevailing party and does not retry the facts or 

reweigh the preponderance of the evidence. Wagner Enters., Inc. 

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

 Although neither Boysaw nor Duncan requested a permit to 

enter the dike area, their bodies were found in the dike and 

Boysaw's hard hat and radio were found on the platform under the 

"Danger" sign. Moreover, Gardner's testimony that someone 

attempted to equalize tank W-9, together with the stains on the 

floor of the dike and the items Gardner recovered from the dike 

after the accident, were sufficient to prove that an ether spill 

had occurred at the tank and that someone had attempted to clean 

up the spill. Credible evidence, therefore, supported the 

commission's finding that Boysaw and Duncan "intentionally 

undertook the forbidden act" of entering the dike without a 

confined space permit. Accordingly, absent proof by the claimant 

of an applicable exception to the safety rule requiring that an 

employee obtain an entry permit, or a valid reason for the 

employee's failure to obtain the permit, the commission did not 

err by denying the claim on the ground that Boysaw engaged in 

willful misconduct. 

 A claimant may rebut the employer's willful misconduct 
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defense "by showing that the rule was not kept alive by bona fide 

enforcement or that there was a valid reason for his inability to 

obey the rule." Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 

327, 332, 437 S.E.2d 205, 208 (1993). Both Heslep and Gardner 

testified that Hercules "strictly enforced" the rule requiring a 

permit to enter a confined space. Thus, unless the evidence 

showed that Boysaw had a valid reason for failing to obey the 

permit rule, the willful misconduct defense applies. 

 In Spruill, we held that credible evidence did not support 

the commission's finding of willful misconduct because, although 

the employer's rule required employees to wear gloves when 

working on live power lines, "it was an accepted practice to work 

on deenergized lines without the protection of rubber gloves." 

Spruill, 8 Va. App. at 334, 381 S.E.2d at 361. We held that the 

rule was inapplicable because the claimant knew about the 

unwritten exception to the rule and believed the line he was 

working on was deenergized. Id.

 Here, the evidence showed that, at the time of the accident, 

Hercules had adopted safety rules requiring employees to contain 

spills under certain circumstances before notifying a supervisor. 

 At the hearing before the deputy commissioner, Heslep read 

Hercules' Rule 5.1.10 of Procedure Number 4-2-1F, which states, 

"[a]ll leaks, spills or overflows shall be contained, if 

possible, and then supervision shall be notified immediately (see 
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Procedure 4-2-25)." Furthermore, both Heslep and Gardner 

testified that Rule 5.1.7 of Procedure Number 4-2-25 states, 

"[i]f needed to control the spill or keep the incident from 

getting worse, emergency measures first shall be taken and 

supervision notified immediately after containing the spill is 

accomplished." Heslep, however, testified that these rules do 

not apply to spills in the dikes because such spills are already 

"contained within [the dike's] concrete walls." In addition, 

Gardner testified that the dikes were "approved confining 

locations for the solvents, acids or whatever is contained in the 

vessel," and that even if a spill did occur, an employee could 

not enter the dike without a confined space permit. 

 Although claimant contends that Rule 5.1.10 does not apply 

to leaks, spills, or overflows in the dike, Gardner's testimony 

is the only evidence in the record that addresses the proper 

interpretation and application of these rules. No evidence in 

the record proves that Boysaw interpreted or understood Rule 

5.1.10 to authorize or require her to contain a spill in the 

dikes before notifying her supervisor or obtaining a permit. 

Accordingly, the evidence does not provide a valid reason for 

Boysaw's failure to obtain a permit before entering the dike. 

 We hold that credible evidence supports the commission's 

finding that Boysaw engaged in willful misconduct by entering the 

dike without a permit, and we affirm the denial of the claim. 
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Affirmed.