Gary W. Ritenour v Merit Janitorial Services, etal

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Koontz, Bray and Annunziata
GARY W. RITENOUR
v. 	Record No. 0406-95-3 	MEMORANDUM OPINION*
PER CURIAM
MERIT JANITORIAL SERVICES 	JULY 18, 1995
AND
SELECTIVE INSURANCE COMPANY OF AMERICA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(George L. Townsend; Chandler, Franklin & O'Bryan, on
brief), for appellant.
(P. Dawn Bishop; Jennifer G. Marwitz; Sands, Anderson,
Marks & Miller, on brief), for appellees.
Gary W. Ritenour contends that the Worker's Compensation
Commission erred in finding that Merit Janitorial Services
("employer") and its insurer proved that his willful misconduct
proximately caused his May 18, 1994 burn injuries. 	Upon
reviewing the record and the briefs of the parties, we conclude
that this appeal is without merit. 	Accordingly, we summarily
affirm the commission's decision. 	Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. 	R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
Factual findings made by the commission will be upheld on appeal
if supported by credible evidence. 	James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
*Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

2
On May 18, 1994, the claimant was severely burned when a
flash fire occurred while he was using acetone and a buffing
machine to remove the wax build-up from a bathroom floor.
Stephen Himmelright, the claimant's employer, testified that he
had warned the claimant two weeks earlier about the dangers
associated with the use of acetone and had instructed the
claimant not to use a buffing machine with the acetone. 	The
claimant had worked with acetone a week before the accident,
using a manual scraper instead of a buffing machine to remove the
floor's residue. 	Himmelright also instructed the claimant on the
evening of the accident not to use a buffing machine with
acetone, no matter how long the job took to complete. 	The
claimant testified that Himmelright told him to use the acetone
with the buffing machine or find other employment.
Code § 65.2-306(1) bars compensation for an injury or death
caused by the employee's willful misconduct or self-inflicted
injury. 	"Willful misconduct requires something more than
negligence. 	'[It] . . . imports something more than a mere
exercise of the will in doing the act. 	It imports a wrongful
intention.'" 	Uninsured Employer's Fund v. Keppel, 1 Va. App.
162, 164, 335 S.E.2d 851, 852 (1985) (citation omitted).
In denying the claimant's application, the commission found
that the employer's testimony was more credible than the
claimant's testimony. 	The determination of a witness'
credibility is within the exclusive purview of the fact finder.

3
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363
S.E.2d 433, 437 (1987). 	The commission found that the employer's
testimony was more consistent with the other facts proven. 	Based
upon this record, the commission's credibility determination will
not be disturbed on appeal.
The testimony of the employer and the Fire Chief provides
sufficient credible evidence to support the commission's finding
that the claimant's injury proximately resulted from his willful
misconduct. 	The employer testified that the claimant was
instructed on several occasions, including the evening of the
accident, that he was not to use a buffing machine with acetone
because of the dangerous nature of the inherently volatile
solvent. 	The claimant's willful disregard of these instructions
proximately caused his subsequent injuries. 	The Fire Chief
testified that the flash fire was caused by the use of acetone, a
flammable liquid, with the buffing machine.
The claimant's contention that the commission erred by not
applying the test set forth in Spruill v. C.W. Wright Constr.
Co., 8 Va. App. 330, 381 S.E.2d 359 (1989), is without merit.
The employer's defense arose under Code § 65.2-306(1), not Code
§ 65.2-306(5).1 Moreover, the commission could have reasonably
inferred from the evidence that the claimant knew that using
1Code § 65.2-306(5) bars compensation where an employee
willfully breaches any reasonable rule or regulation adopted by
the employer and brought to the employee's knowledge before the
accident.

4
acetone with a buffing machine was dangerous. 	The claimant, who
had ten years of experience cleaning floors, admitted that he
knew not to smoke while using acetone because it was flammable.
In addition, the employer told the claimant not to use acetone
with the buffing machine because it was dangerous.
For these reasons, we affirm the commission's decision.
Affirmed.