Virginia Claimant Did Not Violate Known Safety Rule in Connection with Injury

Construing Virginia’s intentional violation of a known safety rule statute [Va. Code § 65.2-306(A)], a state appellate court affirmed an award of workers’ compensation benefits to an employee who sustained severe injuries to her left hand in an accident involving a heavy metal crate and her fork truck [Klockner Pentaplast of Am. v. Miller, 2021 Va. App. LEXIS 135 (July 27, 2021)]. Noting that the employer had a rule that required the employee to keep a “clear path” in the area in which she labored, the appellate court agreed with the Commission that the employee had shown that at the time of her injury, she believed she indeed had such a clear path. Accordingly, the employer had failed to show the requisite intentional disregard of the rule that was required under the statute.

Background

Claimant sought workers’ compensation benefits following an incident in which her left hand was crushed between the fork truck she was operating and a metal crate. The employer defended the claim on the ground that she was injured because she intentionally violated a known safety rule requiring her to keep a clear path while operating the fork truck.

The evidence presented during the hearing in the Commission established that the claimant used the fork truck approximately three to four times per hour and had received repeated training on its use during her seventeen years of employment. She earned a perfect score on her most recent recertification test in 2019 and knew she was required to always keep a clear path while operating the device. Additional evidence established that the fork truck weighed 8,000 pounds and was a “walk-behind,” rather than “ride-on,” device.

On the day of the accident, the claimant was aware that several metal crates were in the area. She noted that despite the presence of a large sign on the wall identifying where the metal crates should be placed, someone had put “three or four extra ones” in the wrong place in the alley where she worked. The claimant explained that the fork truck she used was not large enough to move the metal crates safely.

Despite the improper placement of the crates, the claimant was performing her job. After delivering one pallet of material to the position stand closest to the metal crates, the claimant successfully moved the fork truck away from the pallet. She then transported a second pallet of material into position directly behind the first one without difficulty. She was injured, however, as she attempted to maneuver the third pallet of material.

Commission Affirms Deputy Commissioner

The deputy commissioner concluded that the evidence did not prove that the claimant intentionally violated the “clear path” safety rule. The deputy commissioner further noted that the metal crate remained in the same position during the relevant time period and the claimant had successfully avoided the crate with the fork truck on three prior trips through the area shortly before her accident. As a result, the deputy commissioner reasoned that the evidence proved, at most, that the claimant had misjudged the distances, an act of negligence, and he entered an award of benefits.

The employer sought Commission review, arguing that the claimant gave testimony constituting a “glaring admission” that she knew she did not have a clear path. The Commission disagreed, noting that the claimant “consistently testified that she believed she had a clear path” during the relevant time frame. The Commission agreed that the evidence did not establish that the claimant’s hand injury resulted from her intentional action to violate the employer’s safety rule to keep a clear path of travel while using the fork truck. Accordingly, the Commission unanimously affirmed the award.

Appellate Court’s Decision

The appellate court observed that pursuant to Va. Code § 65.2-306(A), an employee was not entitled to workers’ compensation benefits for an injury that was caused by the employee’s “willful breach of any reasonable rule … adopted by the employer and brought, prior to the accident, to the knowledge of the employee.” The court stressed, however, that negligence, even gross negligence, was inadequate to establish the defense.

The court said the employer’s argument revolved solely around the Commission’s assessment of the claimant’s credibility. The employer pointed to the claimant’s admission that she knew that the metal crate on which she injured her hand was in “the wrong spot.” The court also stressed that here, after giving the testimony upon which the employer relied, the claimant stated without equivocation that she in fact “had a clear path” immediately prior to the accident. The claimant emphasized that she moved the first and second pallets into position “just fine.”

The court concluded that the Commission, on the record before it, was free to interpret the claimant’s testimony as asserting that she believed she had a clear path immediately prior to the accident and, consequently, that the employer did not meet its burden of proving that the injury resulted from her intentional disregard of a known safety rule.

Commentary

To paraphrase a statement offered by one of my law professors more than 40 years ago, “It’s cases like this that give employers the bad name they have.” While I am certain that in many cases, there is more going on than makes its way into the court’s opinion, I’m left wondering how the employer could justify its position. As an aside, the claimant here sought sanctions, contending in pertinent part that the employer had not acted in good faith by pursuing an appeal. The appellate court appeared to utilize Solomonic judgment here, indicating that the record was not “wholly devoid” of evidence supporting the employer’s argument. The court said that the employer’s attorney’s argument fell within the scope of the zealous representation of one’s client. Consequently, the court denied the claimant’s request for the imposition of sanctions including an award of attorney’s fees. You might disagree, but had I been on the bench, I would have sanctioned the employer.