COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Coleman∗

Argued at Richmond, Virginia 

DAN RIVER, INC. 

 OPINION BY 

v. Record No. 0723-00-2 JUDGE ROSEMARIE ANNUNZIATA 

 FEBRUARY 13, 2001 

HENRY JUNIOR GIGGETTS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 James A.L. Daniel (Martha White Medley; 

Elizabeth B. Carroll; Daniel, Vaughan, 

Medley & Smitherman, P.C., on brief), for 

appellant. 

 J. Gregory Webb (Michie, Hamlett, Lowry, 

Rasmussen & Tweel, P.C., on brief), for 

appellee. 

 

 The appellant, Dan River, Inc., contends on appeal that the 

appellee, Henry Junior Giggetts, is not entitled to workers' 

compensation benefits because: (1) Giggetts' willful misconduct 

precludes compensation, pursuant to Code § 65.2-306; (2) 

Giggetts did not experience a compensable injury by accident 

that arose out of, as well as in the course of, his employment; 

(3) Giggetts' alleged disability was caused by a pre-existing 

condition; and (4) Giggetts failed to market his remaining 

capacity to work. For the reasons that follow, we affirm. 

∗

 Judge Coleman participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

December 31, 2000 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401. 
BACKGROUND

 Consistent with well-accepted principles, we view the 

evidence and the inferences that may be drawn from that 

evidence, in the light most favorable to Giggetts, the party 

prevailing below. Metro Mach. Corp. v. Lamb, 33 Va. App. 187, 

191, 532 S.E.2d 337, 338 (2000). Giggetts worked for Dan River, 

Inc. as a long-distance or "over the road" truck driver during 

the period relevant to this appeal. On November 17, 1998, 

Giggetts left Danville, Virginia, made a delivery in Morgan, 

North Carolina, and was proceeding to Lake City, South Carolina, 

when he was involved in an accident. Giggetts was rounding a 

curve on a two-lane road in drizzling rain and drifting fog, 

when he saw a two-ton truck with its brake lights on, proceeding 

very slowly about twenty feet in front of him. The estimated 

speeds of Giggetts' truck and the two-ton truck were forty miles 

per hour and five to fifteen miles per hour, respectively. The 

posted speed limit was fifty-five miles per hour. Realizing he 

could not stop his truck in time, Giggetts steered to the right 

in order to avoid a collision and injury to the two-ton truck's 

occupants, and to avoid a collision with a school bus that was 

traveling toward Giggetts in the opposite lane. 

 Giggetts' truck struck a culvert pipe with its front wheel, 

lifted into the air, and came back down, hitting the culvert 

pipe again upon impact. Believing that his truck was going to 

go back across the road, Giggetts jerked the truck to the right 

 - 2 - 
to avoid hitting the two-ton truck or the school bus, causing 

the truck to jackknife and come to rest in a residential yard. 

Giggetts stated that when his truck left the road the second 

time, his truck "gave [him] a great big shook or shake or 

whatever because the quickness of the stopping with my seatbelt 

jerked me." In describing the "jerk," Giggetts stated that the 

jerk was violent and involved a whipping motion from left to 

right. 

 Giggetts did not experience any pain until an hour and 

one-half to two hours later, reporting to Dan River that he was 

experiencing "sharp pains running down both of [his] legs." He 

was treated at a local hospital the day of the accident. At the 

time of the hearing, Giggetts reported continuous pain in his 

back and left leg, the need to take sleep medication, and the 

inability to drive. He testified that he was able to work 

around his house, but that he had difficulty standing or sitting 

for long periods of time. 

 Shortly after the accident, Dan River suspended Giggetts. 

In January 1999 Giggetts applied for unemployment benefits 

through the Virginia Employment Commission. He was told that in 

order to receive benefits, he must be willing and able to work. 

Thereafter, Giggetts applied for several jobs, but was unable to 

obtain employment. 

ANALYSIS

 - 3 - 
 On appeal, we are bound by findings of fact made by the 

Workers' Compensation Commission if credible evidence in the 

record supports those findings. A.G. Van Metre, Jr., Inc. v. 

Gandy, 7 Va. App. 207, 215, 372 S.E.2d 198, 203 (1988). We view 

the evidence in the light most favorable to Giggetts, the party 

prevailing below. Southland Corp. v. Gray, 18 Va. App. 366, 

369, 444 S.E.2d 19, 21 (1994). The commission's decision will 

not be overturned unless plainly wrong or without evidence to 

support it. Id.

I. 

Willful Misconduct

 Under Virginia law, an employee cannot receive compensation 

under the Workers' Compensation Act when his or her injury is 

the result of either willful misconduct or willful breach of a 

rule or regulation adopted by the employer. Code § 65.2-306(A). 

To establish this defense, the employer must prove: (1) the 

rule was reasonable; (2) the employee knew of the rule; (3) the 

rule was for the employee's benefit; and (4) the employee 

intentionally performed the forbidden act. Buzzo v. Woolridge 

Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208 

(1993). "[W]hether [the employee's] conduct in the abstract 

constitutes willful misconduct is a mixed question of fact and 

law and is reviewable by this Court on appeal." Id. at 333, 437 

S.E.2d at 209. 

 - 4 - 
 Dan River alleges that Giggetts was driving too fast for 

the given weather conditions on the morning of his accident and 

that he failed to properly use the truck's braking and steering 

systems. Dan River contends that this conduct constituted a 

violation of Federal Motor Carrier Safety Regulations.1 We 

disagree. 

 The evidence in the record supports the commission's 

finding that Giggetts was not exceeding the speed limit. The 

posted speed limit on the road on which Giggetts was traveling 

was fifty-five miles per hour. Giggetts testified that he was 

traveling forty miles per hour because of patchy fog. Although 

Giggetts' speed was disputed by the employer, the commission 

resolved this fact in favor of Giggetts and, because the 

evidence supports that conclusion, we will not disturb that 

finding on appeal. Southwest Tire, Inc. v. Bryant, 31 Va. App. 

655, 661, 525 S.E.2d 563, 566 (2000). 

 The evidence also supports the commission's finding that 

Giggetts was "performing with the caution necessary under the 

conditions," and properly used the vehicle's braking and 

steering systems, as required by the Federal Motor Carrier 

Regulations. Giggetts testified that he was traveling below the 

posted speed limit because of the fog he had encountered and 

 

 - 5 - 

1

 The parties stipulated that Dan River had adopted the 

Federal Motor Carrier Regulations as company rules, and Giggetts 

testified that he had received training pertaining to the 

regulations. 
that, when he entered the last patch of fog before the accident, 

he had slowed down. Although he was unable to stop in time to 

avoid the accident that occurred, the conduct described does not 

constitute a willful violation of a safety regulation. 

 Even were we to conclude that the weather conditions 

Giggetts encountered dictated a lesser speed, his conduct, at 

most, may be characterized as negligent. However, negligence 

alone, even gross negligence, will not support a finding of 

willful misconduct. Buzzo, 17 Va. App. at 332, 437 S.E.2d at 

208; Spruill v. C.W. Wright Constr. Co., 8 Va. App. 330, 334, 

381 S.E.2d 359, 361 (1989). 

II. 

Injury Arising Out of Employment

 Dan River next alleges that Giggetts' injury did not "arise 

out of" his employment. See Code § 65.2-101. We disagree. 

 An injury arises out of one's employment if there is a 

causal connection between the injury and the "conditions under 

which the work is required to be performed." Metcalf v. A.M. 

Express Moving Sys., Inc., 230 Va. 464, 468, 339 S.E.2d 177, 180 

(1986). Virginia employs the "actual risk test" in determining 

whether a work-related injury is compensable. County of 

Chesterfield v. Johnson, 237 Va. 180, 185, 376 S.E.2d 73, 75 

(1989). Under this test, "'[t]he causative danger must be 

peculiar to the work, incidental to the character of the 

business, and not independent of the master-servant 

 - 6 - 
relationship.'" Id. at 183-84, 376 S.E.2d at 75 (citation 

omitted). The test excludes injuries "'which the employee would 

have been equally exposed to apart from the employment.'" Id.

at 183, 376 S.E.2d at 75 (citation omitted). 

 Giggetts' job required him to be on the road in the early 

morning hours, driving a tractor-trailer truck during foggy 

conditions, exposed to the hazards of driving. Even if 

Giggetts' injury resulted from his negligence, he was exposed to 

the risk of being injured in an accident as a result of his job 

responsibilities, and the injury he suffered resulted from that 

risk. Therefore, we conclude that Giggetts' injury "arose out 

of" his employment. 

III. 

Pre-existing Condition

 Dan River further alleges that Giggetts' injury was the 

result of a pre-existing condition and not the result of the 

November 17 accident. We find this allegation to be without 

merit. 

 The reports submitted by the two treating physicians 

established that Giggetts' injury was caused by the accident. 

Giggetts testified that he suffered a minor back injury in 

February 1996. However, he sought no medical treatment for the 

injury and missed no work because of the February 1996 injury. 

Although the employer's physician reported that Giggetts was 

suffering from a "spinal stenosis" which was "likely old," he 

 - 7 - 
also reported that Giggetts was suffering from a "small disc 

herniation." The employer's physician could not state "with 

utmost certainty" when the latter injury had occurred. The 

commission explicitly stated they found the testimony of the 

treating physicians to be more persuasive. Based upon the 

evidence introduced, the commission made a factual finding that 

Giggetts' present injury was the result of the accident in 

question, and not the result of aggravation of his alleged 

pre-existing condition. Because the evidence supports this 

finding, we will not disturb it on appeal. Ogden Aviation Serv. 

v. Saghy, 32 Va. App. 89, 101, 526 S.E.2d 756, 762 (2000) 

(conflicting medical opinions raise questions of fact to be 

resolved by the commission and if supported by credible 

evidence, are binding on appeal); WLR Foods, Inc. v. Cardosa, 26 

Va. App. 220, 230, 494 S.E.2d 147, 152 (1997) ("'The fact that 

there is contrary evidence in the record is of no consequence.'" 

(citation omitted)). 

IV. 

Marketing Remaining Work Capacity

 We also find no merit in the employer's final contention 

that Giggetts should be denied compensation because he failed to 

market his remaining work capacity. In Virginia, an employee is 

only required to market his or her remaining work capacity if 

the employee is not totally disabled. Gandy, 7 Va. App. at 216, 

372 S.E.2d at 203. Here, the commission made a factual finding 

 - 8 - 
that Giggetts was totally disabled from December 28, 1998 to 

March 9, 1999. This finding is supported by credible evidence. 

Although Giggetts looked for other work during that time period, 

this fact, alone, is not determinative. Id. Therefore, 

Giggetts' claim is not barred on the ground that he failed to 

market his remaining work capacity. 

 For the reasons stated above, we affirm the commission's 

decision. 

 Affirmed. 

 - 9 -