COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARVIN V. TEMPLETON & SONS, INC. 

AND 

ROYAL INDEMNITY COMPANY 

 MEMORANDUM OPINION*

v. Record No. 1177-95-3 PER CURIAM 

 DECEMBER 29, 1995 

DARNELL O. DIXON 

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (John M. Oakey, Jr.; Jill M. Misage; McGuire, Woods, 

Battle & Boothe, on brief), for appellants. 

 (George L. Townsend; Chandler, Franklin & O'Bryan, on 

brief), for appellee. 

 Marvin V. Templeton & Sons, Inc. and its insurer 

(hereinafter collectively referred to as "employer") contend that 

the Workers' Compensation Commission erred in holding that 

Darnell O. Dixon's willful violation of a safety rule did not bar 

him from receiving an award of compensation for injuries. 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 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. 

 

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

designated for publication. 
 2 

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

 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 question 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. In finding that employer did 

not establish a willful violation of a safety rule, the 

commission found as follows: 

 The employer had a written safety rule, 

promulgated to the employees on February 15, 

1993, requiring written permission from 

qualified persons prior to entering a 

confined space. The weigh hopper was not 

listed as a confined space, but the claimant 

testified that he considered it to be one. 

We find that [sic] the rule reasonable and 

that he had knowledge of that rule. However, 

the evidence clearly shows that the Confined 

Space Policy was not enforced by the employer 

prior to the claimant's injury. Testimony 

was presented from employees and supervisors 

indicating that each group entered confined 

spaces without a written permit and that no 

reprimands were issued as a result of those 

unauthorized entries. It appears that each 

group considered oral communication to be an 

adequate substitute. Because of this lack of 

enforcement, we find that the employer has 

not proven by a preponderance of the evidence 

that the claimant violated the Confined Space 

Policy. 

These factual findings are supported by the testimony of 

claimant, Foster, Cardwell, Landrum, Jordan, and Allen. All of 
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these supervisors and employees testified that they or others had 

entered confined spaces, prior to claimant's accident, without 

obtaining a written permit and with employer's knowledge, and 

that they had never been reprimanded for such conduct. 

Accordingly, these findings are binding on appeal and provide 

proof of employer's pattern or practice of failing to discipline 

employees guilty of willful violations of a safety rule. Such 

proof defeats employer's defense. See Vepco v. Kremposky, 227 

Va. 265, 315 S.E.2d 231 (1984). 

 Moreover, employer's argument that claimant violated an 

unwritten safety rule requiring oral permission from a supervisor 

before entering a confined space is without merit. Claimant 

admitted that such a rule existed. However, employer did not 

dispute that claimant informed Landrum, acting plant 

superintendent, that he had to repair a malfunction in the weigh 

hopper by unhanging the gate. Claimant testified that the gate 

could not have been fixed from outside the weigh hopper. He also 

stated that, based upon the repair to be performed, he believed 

Landrum knew he was going into the weigh hopper to do the work. 

Claimant confirmed that he had been in a weigh hopper, on prior 

occasions, with the knowledge of Landrum and Jordan. Based upon 

claimant's testimony, the commission found that "claimant 

subjectively felt that this communication was sufficient to 

inform Landrum, who was on his 'first day as superintendent,' 

that he would be working inside the hopper." "Where reasonable 
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inferences may be drawn from the evidence in support of the 

commission's factual findings, they will not be disturbed by this 

Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 

398, 404, 374 S.E.2d 695, 698 (1988). Accordingly, we cannot say 

as a matter of law that the commission erred in finding that 

employer's evidence failed to prove any wrongful intent on 

claimant's part. Because of this finding, employer's defense of 

willful violation of a safety rule cannot prevail. Virginia law 

requires an employer to prove more than negligence or the 

exercise of the will in doing an act; employer must prove a 

wrongful intention. Uninsured Employer's Fund v. Keppel, 1 Va. 

App. 162, 164, 335 S.E.2d 851, 852 (1985). 

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

 Because our rulings on the issues raised by employer dispose of 

this appeal, we will not address the notice issue or proximate 

cause issue raised by claimant in his brief. 

 Affirmed.