COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

DONALD WAYNE OGBURN 

v. Record No. 2174-96-2 MEMORANDUM OPINION* BY 

 JUDGE MARVIN F. COLE 

SOUTHSIDE GIN, INC. AND MARCH 25, 1997 

MERCHANTS OF VIRGINIA 

 GROUP SELF INSURANCE ASSOC. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Peter D. Eliades (Marks & Harrison, P.C., on 

brief), for appellant. 

 Bradford C. Jacob (William C. Walker; Taylor & 

Walker, P.C., on brief), for appellees. 

 Donald W. Ogburn (claimant) appeals a decision of the 

Workers' Compensation Commission (commission) denying him an 

award of compensation benefits on the ground that his willful 

violation of a known safety rule caused his injuries. Finding no 

error, we affirm. 

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

to the prevailing party below. 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 claimant worked for 

employer as a gin helper. On December 18, 1994, employer 

assigned claimant to work the 12:00 p.m. to 12:00 a.m. shift. At 

approximately 4:00 p.m., employer instructed claimant to examine 

 

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

designated for publication. 
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lint cleaners to ensure that the cotton was running smoothly. 

Claimant examined the lint cleaners while they were running. 

Claimant observed wet, dirty cotton in one of the lint cleaners 

slightly above head level. Claimant stepped onto a metal door 

that was three to four inches above floor-level, and "the next 

thing [he] knew, [his arms were] . . . in the machine." Claimant 

denied reaching inside the lint cleaner or grabbing for anything 

in the machine. He contended that he tried to determine if there 

was wet, dirty cotton in the lint cleaner. He stated that if he 

had seen wet, dirty cotton, he would have gone to the front of 

the gin and reported it to the ginner. Claimant stated that he 

did not know how the accident occurred. At the time of the 

accident, claimant was wearing a long-john shirt with sleeves 

that extended to his wrists and a football jersey with sleeves 

that extended to his elbows. 

 Before claimant began working for employer, employer 

required him to watch two safety videos and gave him a safety 

booklet. The safety booklet contained instructions to employees 

to obey all warning signs and tags and not to use their hands to 

reach into a running machine. Claimant also admitted that 

employer had instructed its employees not to place their hands in 

the lint cleaners. Photographs of the lint cleaners identified 

by claimant showed that each lint cleaner was equipped with a 

warning label, which read as follows, "Do not reach inside 

machine until you are certain power has been shut off and locked 
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out and all motion has stopped." 

 Samuel Pope, employer's co-owner, testified that he did not 

witness claimant's accident. However, immediately after the 

accident, Pope observed claimant with his arms caught between 

rollers numbered one and two as shown on photographs admitted 

into evidence. Pope observed claimant standing on the machine, 

with his arms down in the machine. Pope measured the machine 

which caused claimant's injuries. Rollers numbered one and two 

measured eight inches down from the top bar, which was sixty-six 

inches from the floor. The parties stipulated that claimant is 

five feet six inches tall. Pope stated that aside from placing 

one's arms between the machine's rollers, nothing in the work 

environment or the machine itself could have caused claimant's 

arms to have been sucked into the machine. 

 Steven Dickens, who worked for employer at the time of 

claimant's accident, testified via de bene esse deposition. On 

December 22, 1994, Dickens had a telephone conversation with 

claimant. Dickens memorialized that conversation in writing on 

December 22, 1994 as follows: 

 I spoke with Donald Ogburn on December 22, 

1994 concerning the accident that occurred on 

December 18, 1994 at Southside Gin, Inc. 

Donald stated that he walked to the rear of 

the gin stands where the lint cleaners are 

located. He saw cotton "backing up" on the 

rollers above his head. Donald stated that 

he then climbed up on the lint cleaner and 

proceeded to pull the cotton out while the 

lint cleaner was running. The rollers caught 

his shirt sleeve and pulled hands and arms 

into machine. Donald does not remember if it 

was his shirt sleeve or hand that was first 
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caught. It happened very fast. Donald also 

stated that it was possible that he could 

have slipped and attempted to catch himself 

from falling. 

 Based upon this record, the commission held that employer's 

evidence proved its affirmative defense of willful misconduct. 

The commission found that the most plausible explanation for the 

accident was that claimant intentionally reached into the machine 

while it was in operation, resulting in his injuries. The 

commission based this finding on the testimony of Pope and 

Dickens, as well as Dickens' written statement memorializing his 

telephone conversation with claimant. 

 "Willful misconduct requires something more than 

negligence." Uninsured Employer's Fund v. Keppel, 1 Va. App. 

162, 164, 335 S.E.2d 851, 852 (1985). "Disregard of an express 

order, especially one made for the safety of the employees, 

usually constitutes willful misconduct." Id. at 165, 335 S.E.2d 

at 852. "'The questions of whether or not a claimant has been 

guilty of willful misconduct and whether such misconduct was a 

proximate cause of the employee's accident are issues of fact.'" 

Id. (quoting Mills v. Virginia Elec. & Power Co., 197 Va. 547, 

551, 90 S.E.2d 124, 127 (1955)). This Court is bound by the 

commission's factual findings if supported by credible evidence. 

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 

S.E.2d 487, 488 (1989). 

 To prevail on its willful misconduct defense, employer was 

not required to prove that the employee, with the safety rule in 
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mind, purposefully determined to break it. Employer must only 

show that, knowing the rule, the employee intentionally performed 

the forbidden act. Spruill v. C.W. Wright Constr. Co., Inc., 8 

Va. App. 330, 334, 381 S.E.2d 359, 361 (1989). Claimant conceded 

that employer's two safety rules were reasonable, were known to 

him, and were for his benefit. 

 The testimony of Pope and Dickens, as well as Dickens' 

written statement, constitutes credible evidence to support the 

commission's factual finding that claimant reached into the 

machine to remove dirty, wet cotton, while the machine was 

running, in violation of employer's safety rules. In addition, 

claimant's stipulated height, combined with the undisputed 

evidence of the layout of the lint cleaner, also provides 

credible evidence to support the commission's finding. Based 

upon this evidence, it was physically impossible for claimant's 

arms to have been caught in the machine without him reaching into 

it. "The fact that there is contrary evidence in the record is 

of no consequence if there is credible evidence to support the 

commission's finding." Wagner Enters., Inc. v. Brooks, 12 Va. 

App. 890, 894, 407 S.E.2d 32, 35 (1991). 

 By deliberately reaching into the machine while it was in 

operation, claimant violated employer's known safety rules. 

Therefore, the commission did not err in ruling that claimant is 

barred from receiving any benefits under the Workers' 

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

 Affirmed.