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Willful Misconduct: An Employer’s Tool to Bar Virginia Workers’ Compensation Benefits

April 30, 2021

Under Va. Code §65.2-306, an employee who otherwise suffered a compensable workplace accident may be denied workers’ compensation benefits if the employer proves that the employee was engaged in a form of willful misconduct at the time of the accident. 

Whether an employee’s conduct rises to the level of willful misconduct is a question of fact that will be determined by the Virginia Workers’ Compensation Commission.   When an employee places him/herself into a dangerous position which he/she was not required to be in for any employment task, that employee could be deemed to have committed willful misconduct.  For instance, an employee was denied workers’ compensation benefits when she was told by a supervisor not to move boxes without help.  The employee proceeded to move boxes on her own and was injured while moving boxes as a result.  The Commission determined her actions rose to the level of willful misconduct and her injury was not compensable.  Tinsley v. Alexandria Hospital, 60 OIC 454 (1981).

The specific forms of willful misconduct are outlined in Va. Code §65.2-306 and they state:

“A. No compensation shall be awarded to the employee or his dependents for an injury or death caused by:

  1. The employee's willful misconduct or intentional self-inflicted injury;
  2. The employee's attempt to injure another;
  3. The employee's intoxication;
  4. The employee's willful failure or refusal to use a safety appliance or perform a duty required by statute;
  5. 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; or
  6. The employee's use of a nonprescribed controlled substance identified as such in Chapter 34 (§ 54.1-3400et seq.) of Title 54.1.”

To prevail on a willful misconduct defense based on a safety rule violation, an employer must establish that (1) the subject safety rule was reasonable; (2) the safety rule was known to the employee; (3) the safety rule was for the employee’s benefit; and (4) the employee intentionally engaged in the forbidden act.    Oftentimes, pre-employment paperwork, attendance forms showing in-house safety meetings, employee handbook provisions, and safety handbooks serve as the best evidence in support of an employer’s willful misconduct defense.

Employers do not need to prove that the employee was purposefully trying to break a safety rule at the time of the accident.  Mills v. Va. Elect. & Power Co., 90 S.E.2d 124 (1955).  However, it is important for employers to know that an employee’s gross negligence alone does not rise to the level of willful misconduct. Baughman v. Fairfax Country Public Schools, 59 O.I.C. 13 (1980).  Willful misconduct requires more than negligence.   For example, benefits were awarded to the claimant in Baughman when he decided to jump off of a roof instead of descending with the use of a ladder.  The Commission held that the employee simply used “bad judgment in the manner he chose to descend” from the roof and did not violate the safety rule requiring him to immediately report unsafe conditions to his supervisor.    In another case, an employee stood on the top rung of a ladder and also chose a ladder that was too short for the particular task but those actions were not the reasons for barring his workers’ compensation benefits.  The decision to use a short ladder and stand on the top rung of the ladder was simply deemed to be bad judgment.  Brown v. Powell’s Paint Co., 68 O.I.C. 113 (1988).

Importantly, under Va. Code §65.2-306 (B), the person or entity asserting the willful misconduct defenses under §65.2-306 (A) has the burden of proof.  However, there is one exception to this burden.  This exception arises if employer raises a defense involving the employee's intoxication or use of a nonprescribed controlled substance, “and there was at the time of the injury an amount of alcohol or nonprescribed controlled substance in the bodily fluids of the employee which (i) is equal to or greater than the standard set forth in §18.2-266, or (ii) in the case of use of a nonprescribed controlled substance, yields a positive test result from a Substance Abuse and Mental Health Services Administration (SAMHSA) certified laboratory, there shall be a rebuttable presumption, which presumption shall not be available if the employee dies as a result of his injuries, that the employee was intoxicated due to the consumption of alcohol or using a nonprescribed controlled substance at the time of his injury.” This presumption may only be overcome if the injured employee presents clear and convincing evidence regarding the alleged misconduct.

To utilize the defenses under Va. Code §65.2-306, an employer is required to file a notice of its intent to rely upon a misconduct defense.  As stated in Rule 1-10 of the Commission, an employer must provide its notice of willful misconduct defense no less than fifteen days prior to the hearing date.  An employer provides this notice by filing a written notification with the Commission and mailing a copy of that notification to the employee.  In this notification, it is critical that the employer include a statement explaining the particular misconduct that it relies upon when raising the willful misconduct defense.

It is vitally important to carefully select both evidence in support of an employer’s willful misconduct written notification statement under Rule 1-10 and evidence in support of willful misconduct at a hearing thereafter.  Employers should seek the advice of counsel when navigating willful misconduct defenses under Va. Code §65.2-306.

Kerry Stolz is a Pender & Coward attorney focusing her practice on workers’ compensation matters. 


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