eNotes: Workers’ Compensation – November 2023 – Virginia

SIGNIFICANT CASE SUMMARIES

Virginia Case Summary

En & Sh Props. v. Gristo
Virginia Court of Appeals
2023 Va. App. LEXIS 716

Decided: October 24, 2023

Claim was not barred for employee misconduct for violation of a safety rule because the Employer failed to meet its burden of proving the existence of a safety rule that was known to the Claimant.

Background

The Claimant was walking around the construction site, and while talking on his cell phone to a coworker, the Claimant walked on an inclined “2×12” board that was a makeshift walkway from the ground to an upper level of the building they were constructing. The Claimant fell off the board, about eight to ten feet onto the foundation of the hotel. The Employer brought a witness to testify that before the fall, the Claimant and other employees on site had been told that using the board as a bridge or walkway was not allowed and to walk around the building and use the stairs, but he noted that the employees did not understand English well. He also testified that Claimant was told that if his workers continued to use the board as a walkway, he would not be allowed to finish the job. The witness also stated that he took the board off the site and had his son cut it in half in order to prevent its use, but the workers would get another board a couple days later and use it the same way. The 2×12 boards were job site materials, and workers continued to use it as a walkway/bridge for six to eight weeks, despite warnings and taking down the board. The workers stopped using the board for ingress and egress only after Claimant’s accident.

Holding

The Court of Appeals affirmed. There was no evidence that the Employer adopted a safety rule prohibiting the use of the 2×12 board as a walkway, nor was there evidence that any such rule was known to the Claimant. The Court focused on the fact that the Claimant was Spanish speaking and all communications were in English. Further, the prohibition on use of the board as a walkway was never enforced.

Takeaway

Even if there is a safety rule, if it is not enforced, violation of the rule will not be enough to establish a misconduct defense.

Questions about this case can be directed to Jamie DeSisto at (443) 631-0558 or jdesisto@tthlaw.com.