by Amanda S. Tapscott, Esq.
Recently in Virginia, the Full Commission addressed the question of whether wrongful intent has to be established in order to prevail on the affirmative defense of willful misconduct in a workers' compensation claim.
In Layne v. Crist Electrical Contractor, Inc., JCN VA02000002019 (May 20, 2014), the Commission is presented with an interesting issue that is likely to stay in the legal spotlight. In Virginia, it is rare to see both a dissent and a concurrence from the Full Commission on a workers' compensation claim; this Review opinion may be an invitation for the Court of Appeals to further explain or modify the elements of the affirmative defense of willful misconduct in Virginia.
Under Virginia §65.2-306(A)(5), compensation is barred if the injury is the result of "the employee's willful breach of any reasonable rule or regulation adopted by the employer and brought, prior to the accident, to the knowledge of the employee." Decisions that address what constitutes a "willful breach" have presented seemingly contradictory results.
The recent Full Commission decision in Layne has clarified the Commission's interpretation of whether a "willful breach" requires an intention to violate the safety rule, as opposed to an intention to perform the act that resulted in a violation of the safety rule. The Commission found that the requirement that an employer establish an intention to violate the safety rule would essentially preclude all willful misconduct defenses. The Commission explained that such a result is not the intention of the Act, which specifically lays out the willful misconduct defense.
The majority held that instead, the employer must prove that the employee intentionally committed the act that violated the safety rule. As an illustration of this distinction, the difference would be "I wanted to clean the meat slicer while it was still plugged in" (intentionally violated of the safety rule) versus "I did not unplug the meat slicer before I cleaned it" (intentionally performed the act that violated the safety rule).
The courts have consistently held that mere negligence is not enough to establish willful misconduct.
"Proof of negligence, even gross negligence, alone will not support the defense, for willful misconduct 'imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention.'" Buzzo v. Woolridge Trucking, Inc., 17 Va. App. 327, 332, 437 S.E.2d 205, 208, 10 Va. Law Rep. 578 (1993) (quoting King v. Empire Collieries Co., 148 Va. 585, 590, 139 S.E. 478, 479 (1927)).
"'Negligence conveys the idea of heedlessness, inattention, inadvertence; willfulness and wantonness convey the idea of purpose or design, actual or constructive.'" Infant C. v. Boy Scouts of America, Inc., 239 Va. 572, 582, 391 S.E.2d 322, 327-28, 6 Va. Law Rep. 2137 (1990) (quoting Thomas v. Snow, 162 Va. 654, 660, 174 S.E. 837, 839 (1934)).
Willful describes "[a]n intention to do an act that he knows, or ought to know, is wrongful, or forbidden by law. It involves the idea of premeditation and determination to do the act, though known to be forbidden." Easter, 20 Va. App. at 271, 456 S.E.2d at 161.
To successfully raise a willful misconduct defense under Code § 65.2-306(A)(5), the employer must establish
(1) that the safety rule was reasonable,
(2) that the rule was known to [the employee],
(3) that the rule was for [the employee's] benefit, and
(4) that [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, 5 Va. Law Rep. 2951 (1989).
The dissent in Layne argues that the Act requires a wrongful intent to violate the safety rule in question, not mere inattention. The majority, however, argues that this reasoning would "eviscerate" §65.2-306, which was purposely included in the Act by the General Assembly. The concurrence points to Riverside v. Thaxton, 161 Va. 863, 172 S.E. 261 (1934) as evidence that the Supreme Court has already spoken to this issue, excluding the claimant's state of mind from consideration in the question of whether a safety rule was willfully violated.
Quoting Thaxton, the concurrence explains:
Even had Thaxton been partially injured and were alive to testify, would the explanation that his failure to take the precaution involved here was due to a lapse of memory exculpate him from blame which, under the reasonable provisions of the rule, would be fatal to his case? We think not.
Id. at 870, 172 S.E. at 263.
It is knowledge of the rule and intentionally committing the forbidden act that satisfies the willful requirement under the statute. "It is not necessary for the employer to show that the employee, having the rule in mind, determined to break it; it is enough to show that, knowing the rule, he intentionally performed the forbidden act." Id. at 872, 172 S.E. at 264 (citations omitted).
The lesson of Thaxton is that proof of willfulness does not mandate evidence of the employee's state of mind when violating the subject rule.
Rather, willfulness is established by evidence that the employee knew the rule and intentionally committed the forbidden act.
The Commission concluded that the defendants established willful misconduct in Layne by showing that the claimant knew of the rule (as he had complied with it in the past), and that he injured himself as a direct consequence of the rule's breach. The Commission opined that the claimant was not absolved of the violation if it was due to inattentiveness, and that regardless of whether he intended to violate the rule, he had willfully committed the forbidden act that resulted in the violation of the rule and caused his injury.
The Court of Appeals received the claimant's Notice of Appeal on June 13, 2014.
About the Author:
Amanda S. Tapscott, of McCandlish Holton, PC in Richmond, VA, is an experienced litigator. She is a member of the litigation group and primarily focuses her practice in the area of workers' compensation.
Ms. Tapscott regularly advises employers and insurance carriers on strategies to defend and resolve claims. She handles all aspects of litigation, settlement, appeal, and mediation of workers' compensation matters.
She often provides guidance with regards to lien considerations involving third parties, child support, and Medicare, and regularly facilitates settlement of matters that involve such concerns.
Ms. Tapscott will be speaking on Employer Protections and Sudden Death Claims at the Advanced Workers' Compensation seminar in Richmond.