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A city of Danville employee is being given another opportunity to gain workers’ compensation benefits after a deputy commissioner denied his claim because of the employee’s willful misconduct in not following driver safety rules at work.

Claude Averett does not dispute the findings that he failed to wear a seatbelt and used a cell phone while operating the city’s vehicle on the day of an auto accident in which he says he suffered back, neck and shoulder injuries. He also acknowledges that his actions were a willful violation of the employer’s safety policies.

There was video evidence of him violating the safe driving rules.

However, the full Virginia Workers’ Compensation Commission (VWCC) has sent his claim back to the deputy commissioner because the deputy did not make other required key factual findings before denying Averett’s claim.

Averett maintains that the evidence did not support a finding that his injuries were caused by his willful misconduct or safety violations, and therefore the deputy commissioner erred in denying benefits.

The VWCC noted that the state’s code bars an employee’s compensation claim for an injury caused by the employee’s willful misconduct, willful failure to use a safety appliance as required by statute, or the willful breach of any reasonable rule or regulation adopted by the employer and brought to the knowledge of the employee before the accident.

The VWCC found the deputy had not made any findings as to what injuries, if any, the city employee suffered as a result of the accident. Additionally, the deputy commissioner made no findings as to whether the willful violations of the employer’s safety rules were the proximate cause of any injuries Averett suffered. “These findings are a prerequisite to concluding the claimant’s entitlement to compensation is barred,” the VWCC concluded.

The VWCC thus reversed the denial of the claim on the basis that it was barred by the claimant’s willful misconduct and remanded the matter to the deputy commissioner to make the necessary factual findings.

Topics Workers' Compensation Talent