Layne v. Crist Elec. Contractor, Inc.

• Citation: 64 Va.App. 342,768 S.E.2d 261
• Decision Date: 10 February 2015
• Docket Number: Record No. 1098–14–3.
• Parties: Melvin L. LAYNE v. CRIST ELECTRICAL CONTRACTOR, INC. and Assurance Services Corporation.
• Court: Court of Appeals of Virginia

64 Va.App. 342

768 S.E.2d 261

Melvin L. LAYNE

v.CRIST ELECTRICAL CONTRACTOR, INC. and Assurance Services Corporation.

Record No. 1098–14–3.

Court of Appeals of Virginia, Lexington.

Feb. 10, 2015.

Monica Taylor Monday (Matthew W. Broughton ; Gregory D. Habeeb ; Robert E. Evans ; Gentry, Locke, Rakes & Moore, Roanoke, on briefs), for appellant.

Roberta A. Paluck (Christopher M. Kite ; Lucas & Kite, PLC, on brief), for appellees.

Amicus Curiae: Virginia Trial Lawyers Association (Brody H. Reid; ReidGoodwin, PLC, on brief), for appellant.

Present: PETTY, BEALES and DECKER, JJ.

Opinion

BEALES, Judge.

The Virginia Workers' Compensation Commission (commission) found that Melvin L. Layne (claimant) was not entitled to workers' compensation benefits because claimant committed a willful breach of a workplace safety rule. See Code § 65.2–306(A)(5). On appeal, claimant asserts that there was not a workplace safety rule that applied to the work he was performing at the time of his injury, that the commission applied the wrong legal standard in determining whether his actions were willful for purposes of Code § 65.2–306(A)(5), and that his actions were at most negligent. For the following reasons, we affirm the commission's decision in this case.

I. Background

Under settled principles of appellate review, we consider the evidence in the light most favorable to employer, as the prevailing party before the commission. Apple Constr. Corp. v. Sexton, 44 Va.App. 458, 460, 605 S.E.2d 351, 352 (2004). Consistent with this well-established standard, “we cannot ‘retry the facts, reweigh the preponderance of the evidence, or make [our] own determination of the credibility of the witnesses.’ ” McKellar v. Northrop Grumman Shipbuilding Inc., 63 Va.App. 448, 451, 758 S.E.2d 104, 105 (2014) (quoting Wagner Enters. v. Brooks, 12 Va.App. 890, 894, 407 S.E.2d 32, 35 (1991) ). “In addition, the commission's ‘conclusions upon conflicting inferences, legitimately drawn from proven facts, are equally binding on appeal.’ ” Id. (quoting Watkins v. Halco Eng'g, Inc., 225 Va. 97, 101, 300 S.E.2d 761, 763 (1983) ).

In this case, claimant was an employee of Crist Electrical Contractor, Inc. (employer), which was a subcontractor performing electrical work in a massive Lynchburg warehouse owned and operated by Delta Star, Inc. On January 19, 2009, at about 11:30 a.m., claimant was installing electrical conduit from a scissor lift high up in Delta Star's core cutting room—and had almost completed installing the conduit. Delta Star's “bridge crane,” which was operational at that time, hit claimant's scissor lift—causing both the scissor lift and claimant to fall far to the floor. Through a personal representative, claimant filed a claim for benefits in the commission alleging injuries to his brain

, head, face, spine, and multiple extremities.¹

Employer acknowledged that claimant's accident arose out of and occurred in the course of the employment. See Code § 65.2–101. However, employer defended against the claim on the ground that claimant was violating employer's “lockout-tagout” rule at the time of the accident. See Code § 65.2–306(A)(5).

Employer asserted that the bridge crane would not have hit the scissor lift—and claimant's resulting injuries would not have occurred—if claimant had rendered the bridge crane inoperable by following the “lockout-tagout” safety procedure.

The deputy commissioner held an evidentiary hearing on October 20, 2010, when several witnesses testified. The testimony taken at that proceeding establishes that employer hired claimant about four-and-a-half months prior to claimant's workplace accident on January 19, 2009. Employer assigned claimant the role of “electrician's helper.” Although an electrician's helper held the lowest status in employer's jobsite hierarchy, claimant's supervisors considered him an “experienced” helper—rather than a mere “green” helper.² Harry Spruce, a foreman for employer at the time of claimant's workplace accident, testified that he had known claimant for several years, that he and claimant “had worked together on a couple other projects,” and that claimant “basically knew what he was doing” because claimant had “been in the [electrical] field for a while.”

John Crist, employer's vice president, testified that the Delta Star warehouse's core cutting room had a bridge crane that moved high above (and horizontal to) the floor. The bridge crane operated on rails that were embedded in the walls of the core cutting room. When the bridge crane's rails were electrified (or “hot”), the bridge crane was able to move. Therefore, before installing conduit or doing other tasks in the bridge crane's vicinity, the bridge crane and its electrified rails needed to be rendered inoperable through a procedure known as “lockout-tagout.” Although it is undisputed that claimant was never given any written materials addressing the “lockout-tagout” procedure and did not attend employer's formal safety orientation, Spruce testified that he gave claimant a tour of the Delta Star facility in which he discussed safety procedures—including “lockout-tagout.” Spruce explained that he had stressed to claimant that open, electrified rails are dangerous and also emphasized the importance of ensuring that the bridge crane was locked out before working in that area.

Dennis Branham, another of employer's foremen, testified that he also toured the facility with claimant and told claimant about the importance of the “lockout-tagout” procedure. Branham described the “lockout-tagout” procedure and explained its importance during the evidentiary hearing. Branham testified that employer's workers who needed to do work in the path of Delta Star's bridge crane were required to get the bridge crane operator's permission to work in that area and ensure that the bridge crane was rendered inoperable. According to Branham, the process of locking out the bridge crane occurs when a person finds the crane's “disconnect box,” pulls the “handle down in the off position,” and puts a lock in the “holes where that handle comes down.” Branham explained, “You put your lock through there. That prevents anybody from coming by and pushing that lock up.”³ During his examination at the evidentiary hearing, Branham indicated that it does not take “a mechanical engineer” or someone with a “high level of electrician's training” to perform the process of applying the lock to the bridge crane's disconnect box. Branham denied that this procedure was “just a good idea,” but instead testified that he told claimant, “I said this is our procedure here that we [used] when we work on these cranes.”

Spruce testified that he “knew [claimant] knew lock out, tag out procedures” based on his interactions with claimant. While the record does not indicate that employer provided claimant with his own lock to be used on the bridge crane's disconnect box, David Wright, a Delta Star employee, testified that he showed claimant where Delta Star's locks were in its maintenance department and that he and claimant had locked out the bridge crane together. Clyde Campbell, another Delta Star employee, testified that claimant had informed him on several occasions that he was going to lock out the bridge crane. Although Campbell testified that claimant's helper was with claimant on many of those occasions, Campbell explained that sometimes claimant would do so alone.

The record shows that claimant successfully locked out the bridge crane on the morning of claimant's workplace accident—three hours before the accident occurred. Wright testified that claimant had asked for permission “to lock the [bridge] crane out.” Wright witnessed claimant apply a lock to the crane at approximately 8:30 a.m., thereby rendering the bridge crane inoperable. Claimant did some work from a boom lift for 30 to 45 minutes and then came down from the boom lift. Wright asked claimant if he could again use the bridge crane, and claimant indicated that he could.

Wright testified that he observed claimant “unlock the [bridge crane disconnect] box” so that the bridge crane could be used again. There is no evidence that the bridge crane was locked out from that point until claimant's workplace accident occurred at approximately 11:30 a.m. on the same morning—even though claimant apparently had returned to his work in the core cutting room at about 10:45 a.m., this time using the scissor lift that was then struck by the bridge crane.

Michael Manning, Delta Star's bridge crane operator at the time of the accident, testified that the scissor lift was about five feet from the bridge crane's disconnect box when he arrived at the scene of the accident. Spruce also testified that the scissor lift was “right beside” and “[a]lmost up against” the disconnect box for the bridge crane. Spruce testified that the disconnect box was not locked out and that there was no lock in the area. The evidence was undisputed at the evidentiary hearing that the bridge crane could not operate if the disconnect box had been locked out.

Following the evidentiary hearing, the deputy commissioner issued an opinion finding that an award of benefits was barred under Code § 65.2–306(A)(5) because claimant had violated the “lockout-tagout” procedure. Claimant sought review by the full commission. The deputy commissioner's decision was affirmed, with one commissioner dissenting, on March 20, 2013. However, in a published opinion, this Court held that the review of the deputy commissioner's decision had not been conducted by a properly constituted full commission review panel. See Layne v. Crist Electrical Contractor, Inc., 62 Va.App. 632, 751 S.E.2d 679 (2013). We reversed the commission's decision on that specific basis and remanded the matter for reconsideration by a properly constituted full commission review panel—without addressing the merits of employer's defense under Code § 65.2–306(A)(5). Id. at 635 n. 1, 751 S.E.2d at 681 n. 1.

On remand from this Court, the full...