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Wyle v. Professional Services Industries Inc.6/18/1991
MOON, J.
685 Barry H. Wyle seeks reversal of an Industrial Commission decision denying him benefits because of his willful misconduct. We hold that the evidence was not sufficient to show that he was guilty of willful misconduct by failing to report an OSHA violation. However, we reverse and remand for the Industrial Commission to re-consider whether his willful misconduct of voluntary intoxication was a proximate cause of his injuries.
Code § 65.1-38 provides in pertinent part:
No compensation shall be allowed for an injury or death (1) Due to the employee 's willful misconduct.... (3) Due to intoxication, or (4) Due to willful failure or refusal to use a safety appliance or perform a duty required by statute or the willful breach of any rule or regulation adopted by the employer and approved by the Industrial Commission and brought prior to the accident to the knowledge of the employee .
The burden of proof shall be upon him who claims an exemption or forfeiture under this section.
Barry Wyle was employed by Professional Services Industries (PSI) as a roofing inspector for a period of four months prior to his injury on August 12, 1988. He was aware that PSI had a rule about working under the influence of alcohol and that the rule was enforced. He had previously been reprimanded about his drinking activities. He was a long time alcoholic and drank daily. His duties included the observation and inspection of roofs in the process of demolition and replacement by contractors. He routinely
climbed up and down ladders. The commission made a finding that "as a part of his duties he was to observe safety violations and report them to the job foreman and then submit something in writing to insure their correction."
Wyle admitted that on the day prior to his injury he drank a six pack of twelve ounce beers and nearly a whole bottle of gin before 11:30 p.m., but he claimed that he drank nothing thereafter. His wife testified that on August 12, he was intoxicated at 2:00 a.m., although he could speak coherently. She did not see him again before he left home for work. He drove from his home to the site of work at Drew Elementary School where Roofer's, Inc., one of his employer 's clients, was working on a roof. Wyle had been working there over a three week period. When he arrived at the work site, he reviewed the project with another of his employer's inspectors. In the process he climbed the ladder to the roof.
Wyle later ascended a different ladder to speak to Tom Riser, a foreman with Roofer's, Inc. On direct examination, Wyle testified that when he went up the ladder he did not notice that it was not tied off and did not have safety grips, a violation of OSHA regulations. However, on cross-examination, Wyle admitted that he noticed the ladder was not properly tied off when he went up the ladder but decided not to mention it to the foreman as he had ascended it before without difficulty. Mr. Riser testified that during the discussion with Wyle, Wyle told him that he had a tooth pulled the night before and had stopped the pain "with a bottle." In addition, Wyle told him that he had taken something for it that morning and had "gotten a bottle." Riser said that Wyle smelled like he had just had a drink of whiskey. When Wyle stepped on the ladder to descend to the ground, the ladder slipped backward two or three feet. Wyle tried to grab onto the edge of the roof but fell to the ground twelve feet below.
Wyle contended that, although he was suffering a hangover that morning, he could not have prevented the fall if he had been sober. In direct contradiction, Mr. Ri
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