VWC File No. 175-53-27



Affirmed by the Court of Appeals at Record No. 1964-96-2 (January 28, 1997)(unpublished)

Opinion by the Full Commission

Peter D. Eliades, Esquire
Marks & Harrison
Post Office Box 170
Hopewell, Virginia 23860-0170
for the Claimant.

David L. Epperly, Jr., Esquire
Epperly, Follis & Schork, P.C.
200 East Cary Street
Richmond, Virginia 23219
for the Defendants.

REVIEW on the record before Commissioner Joyner, Commissioner Diamond, and Deputy Commissioner Lee in Richmond, Virginia.

The employer request Review of the decision of the Deputy Commissioner dated March 29, 1996, which concluded that the claimant sustained a compensable injury by accident arising out of and in the course of his employment and that the claimant was not barred from benefits for a violation of a safety rule.

The record reveals that Irvin R. Harlow was employed as a tractor trailer driver for Great Coastal Express, Inc. While driving from Richmond, Virginia to Texas on June 23, 1995, Harlow began experiencing pain in his small toe on his right foot. Harlow took a pocket knife out of his pants pocket. When Harlow tried to cut a hole in his tennis shoe so that his right foot could protrude and feel more comfortable, the knife slipped out of his hand and injured his right eye. Harlow immediately sought medical treatment. The parties stipulated to the period of disability commencing June 23, 1995 and continuing through February 2, 1996.

Harlow testified that he had been carrying the pocket knife for a number of years. The knife was approximately 3 inches long. Harlow testified that he uses it to cut twine and skin wire when operating the tractor trailer. Harlow admitted that he was aware of the company's rule which prohibited the carrying of weapons on or about the company's business.

Larry Ingram, Risk Manager for Great Coastal Express, Inc., described the company's rule regarding no weapons. The Great Coast Express Drivers' Handbook 1919, General Rules of Conduct Number 9 (p. 12), states, "[n]o weapons are allowed in company vehicles or to be carried by the employees in the performance of their duty or on company premises." Ingram testified that the purpose of the rule was for the safety of the drivers, other employees and the general population. Ingram also testified that the rule was put into effect because of customers' complaints. A customer had complained about a visible weapon on a driver.

Upon this evidence, the Deputy Commissioner ruled from the bench and held that Harlow sustained a compensable injury by accident arising out of and in the course of his employment. The Deputy Commissioner also dismissed the employer's defense of a safety rule violation. We affirm.

Harlow's injury arose out of and in the course of his employment because he was attempting to alter his shoe for comfort. DOT regulations require that drivers wear shoes while operating a commercial vehicle on a public highway, and therefore the shoe could not be removed.

We also agree with the Deputy Commissioner's conclusion that the employer's defense of willful misconduct cannot prevail. The record established that Harlow used the knife to try to open his shoe. Harlow knew that according to DOT regulations, he must wear shoes. Harlow knew he was approaching an inspection station. Harlow needed to do something to make his hurting foot more comfortable. We are of the opinion that Harlow's act of cutting a hole in his tennis shoe was reasonable under the circumstances. The employer's rule refers to a weapon, but offers no evidence that the claimant's knife is a "weapon" as contemplated by the rule. We do not consider Harlow's 2 3/4 inch to 3 inch pocket knife a weapon in this context.

Willful misconduct under Va. Code §65.2-306 requires something more than negligence for a claimant's conduct to be proven willful. The employer/carrier must show that the claimant did more than perform an improper act. The employer/carrier must show there was a wrongful intention.

In the instant case, the employer/carrier has not met its burden of proof. Upon review of the evidence, we do not find Harlow willfully undertook the forbidden act. We do not find that Harlow had a wrongful intention when he used the knife to try to loosen his shoe to make his foot more comfortable.

We AFFIRM the Deputy Commissioner's March 29, 1996 Opinion in its entirety. Interest is payable on this award pursuant to Section 65.2-707, Code of Virginia. From compensation accrued, the total sum of $800.00 shall be deducted and paid to Peter D. Eliades, Esquire, for legal services rendered the claimant at hearing and upon review.


This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days.

cc: Irvin R. Harlow
8830 Cumberland Road
New Kent, Virginia 23124