Virginia Code § 65.2-306: What the Willful Misconduct Statute Actually Says

 

How to Get Workers Compensation When the Employer Alleges You Failed to Follow a Safety Rule

 

The willful misconduct defense – most often raised as an alleged safety rule violation under Virginia Code § 65.2-306 – is a common reason Virginia employers deny workers compensation claims after a work injury. It sounds like a death sentence for your case. But it usually isn’t. Here’s how to beat it.

 

You got hurt at work. You filed a claim for workers compensation benefits. And now the claims adjuster says the insurer won’t pay for medical care or provide wage-loss payments because the injury happened when you violated a safety rule. 

 

Seeing or hearing these words feels final. But in my experience, it rarely is. 

 

I spent the first part of my career on the other side of these cases, defending insurers and employers when they raised willful misconduct as a defense. Searching for potential violations of safety rules was an important task, especially in nursing, trucking, and construction accident cases. I know how adjusters and defense attorneys build these files, what they look for during your deposition and in answers to interrogatories, and how they present the defense at a hearing. I also know how often the evidence doesn’t actually support what the defendant claims. 

 

Don’t get me wrong – the willful misconduct defense under Virginia Code § 65.2-306 is real. And it exists for a reason. But the bar the employer must clear to use to defeat your claim is much higher than most people – including claims adjusters and insurance defense lawyers – understand. This article explains what the defense requires, where employers often fail, and what you should do to overcome the willful misconduct defense. 

 

If you have questions, call or text me at 804-251-1620 or 757-810-5614. The consultation is free.

 

Virginia Code § 65.2-306: What is Willful Misconduct? 

 

Virginia is a no-fault workers compensation state. You can recover benefits even if you performed your work carelessly or dangerously and suffered an injury. Negligence is not a bar to your case.

 

There are exceptions, and § 65.2-306 lists them. You cannot receive compensation or medical treatment when the injury results from one of the following:

 

    • Willful misconduct or intentional self-inflicted injury
    • An attempt to hurt another
    • Intoxication (alcohol or drugs)
    • Willful failure to use a safety appliance
    • Willful breach of any reasonable rule or regulation adopted by the employer and brought to the employee’s attention before the incident.
    • Use of a nonprescribed controlled substance

 

The part of this statute most often raised by employers and insurers – especially in construction, manufacturing, trucking, and nursing injury cases – is number five: failure to follow a safety rule. That’s what this article focuses on.

 

The employer has the burden of proof on every element of the willful misconduct defense. They must offer evidence and earn the denial. You don’t have to prove anything, 

 

The Four Elements the Employer Must Prove to Show Your Injury Resulted from the Failure to Follow a Safety Rule

 

1. The safety rule was reasonable. It must be specific enough that an employee would know how to follow it. Vague instructions to “follow safety procedures” aren’t good enough; they’re a policy statement. The Commission looks for a specific requirement. For example, in one case, the Commission found a verbal order not to put hands or fingers near the rollers constituted a specific safety rule because a witness testified, “If [the rollers] squish dough, they will squish fingers.” 

 

2. You knew about the rule before the work accident. Usually the employer must prove actual verbal or written communication of the rule to win on a willful misconduct defense. But in some cases, the Commission has the license to infer that an employee knew of a violated safety rule – often when the evidence showing an employee should have known about the rule outweighs their testimony that they were ignorant of it. If the employer’s only evidence of notice is training that happened after the accident – or a safety manual written in a language the worker doesn’t speak or updated after the injury – the employer’s willful misconduct defense fails.

 

3. The rule was for the employee’s benefit. Litigation rarely focuses on this element because most safety rules satisfy it on their face. But it’s part of the employer’s burden of proof under the Virginia Workers Compensation Act.

 

4. The employee intentionally violated the rule. This element is where employers and insurers often overreach. They don’t have to prove that you intended to hurt yourself; however, they must prove that you deliberately performed the forbidden act and that it was not simply carelessness. The Commission has said this repeatedly. A few years ago, I used the employer’s lack of evidence that my client intentionally failed to clip a lanyard to negotiate a six-figure workers compensation settlement in a case involving a fall from a height on a construction site. 

 

Remember: The employer carries the burden on all four elements. You don’t have to prove anything.

 

What Happens When the Safety Rule Defense Goes to the Full Commission: Davenport v. D&D Mechanical Inc. (2026)

 

In March 2026, the Virginia Workers Compensation Commission reversed a willful misconduct finding in a case I handled: Davenport v. D&D Mechanical Inc., Jurisdiction Claim No. 2022026000. Here is a copy – vwc-VA02000038627-Judicial Opinion (3). 

 

My client, Y.D., is a union iron worker with years of welding experience. In June 2022, he was performing carbon arc welding – a process that uses a torch and high-pressure air to cut through metal, sending molten slag into the air around the worker. A piece of that slag entered his left ear canal and burned his eardrum.

 

D&D’s carrier raised the willful misconduct defense, arguing Y.D. had violated a safety rule by continuing to work after his earplugs slipped out. A deputy commissioner agreed and, on remand, barred the claim entirely.

 

But the full Commission reversed and remanded for entry of an award.

 

The defense didn’t fail because of a technical error or a bad witness performance. It failed because the employer couldn’t prove the first two elements – and their own witnesses made that case for us.

 

Their Key Witness Was an OSHA Trainer Who Had Trained My Client

 

P.K. was an OSHA outreach trainer for Y.D.’s union and a manager for the employer. He’s the person who trained Y.D. during onboarding. And after the incident. P.K. filled out the Safety & Health Incident Report. When the form asked whether the injured employee had followed the applicable rules or procedures, P.K. checked “yes” and wrote that earplugs are not required when burning or welding.

 

At the hearing, P.K. testified that earplugs are not required for welding and burning, that the applicable OSHA standard for fire and spark exposure is earmuffs – not earplugs – and that he could not confirm any rule requiring earplug use in this type of work.

 

That was the employer’s witness.

 

The employer’s safety director, J.W., testified that hearing protection was required in high-noise areas designated at 85 decibels or above. When asked specifically whether hearing protection was required for the kind of flying slag that injured Y.D., his answer was: “Not particularly.”

 

The employer’s safety manual included language regarding “specific hearing protection” near molten metal – but never specified what that protection was or mentioned earplugs. A separate Welding, Cutting, and Burning Safety Manual was silent on the subject.

 

What the Commission Said About Negligence

 

The Commission didn’t care whether the employer’s version of events – that Y.D. knew the earplug had fallen out but continued to work – was more plausible. Such acts do not bar a workers comp claim.

 

“Continued labor in the face of known danger does not bar his entitlement to recovery.” – Virginia Workers’ Compensation Commission, Davenport v. D&D Mechanical Inc. (2026)

 

Negligence – even gross negligence – is not willful misconduct. The statute requires an intentional violation of a known, specific rule. Disregard of a known risk is not the same thing, and the Commission drew that line clearly.

 

The defense collapsed because the employer did not have a rule specific enough to survive the elements, and because the person it called to establish the rule – an OSHA trainer – testified that the rule didn’t exist.

 

Here is the legal framework that determines why defenses like D&D’s fail – and how to apply it to your case.

 

Five Ways to Overcome the Safety Rule Defense

 

If the employer raises this defense in your case, the first thing to know is that their allegation is the beginning, not the end. They must still prove all four elements, and then some. 

 

Here are ways I’ve helped injured workers overcome a willful misconduct defense that alleges a violation of a safety rule. See which ones might apply to your claim.

 

1. The Employer’s Notice of Its Intent to Raise the Willful Misconduct Defense Was Untimely or Too Vague

 

Rule 1.10 of the Virginia Workers Compensation Commission’s Rules requires the employer to tell you and the Commission that it intends to rely on a willful misconduct defense at least 15 days before your evidentiary hearing and to state “the particular act relied upon as showing willful misconduct.” 

 

If the employer fails to comply with this requirement, you should object to the defense at the hearing and on the record. You can successfully have the defense stricken, making it easier to win your case. 

 

2. The Alleged Safety Rule Wasn’t Specific Enough

 

Safety manuals and training with boilerplate “follow all safety rules” or “lift safely” language do not establish a rule under this statute. Unless the employer can point to a specific written requirement for your safety, the willful misconduct defense fails on the first element.

 

For example, in Davenport, the employer’s manual referenced “specific hearing protection” near molten metal but did not name earplugs. That vagueness was fatal.

 

3. The Violation Didn’t Cause the Injury

 

Maybe you ignored a safety rule. But that violation had nothing to do with how you were hurt. For example, you failed to use a safety harness when working on a scaffold, but your shoulder injury occurred when a forklift crashed into you after you reached the ground safely.

 

In these situations, the failure to follow a safety rule will not bar you from receiving compensation because the violation had nothing to do with the injury.

 

Similarly, we have successfully resolved work-related car crash cases in which the employee was not wearing a seat belt by having the treating physician opine that the injury would have occurred regardless of seat belt use.

 

4. The Employer Didn’t Actually Enforce the Rule

 

A safety rule that exists on paper but gets ignored in practice isn’t good enough under the Commission’s case law.

 

Only if the employer kept the safety rule alive with bona fide enforcement – regular discipline or correction when employees have violated it – will the Commission uphold a willful misconduct defense.

 

Discovery is critical here. Interrogatories and document requests aimed at past discipline records, incident reports, and supervisor observations can establish – or disprove – consistent enforcement. I’ve seen cases where the company had a written rule and zero enforcement history. You can overcome that.

 

5. Emergency Circumstances Forced the Violation

 

Virginia workers compensation law recognizes that you may face an impossible choice as an employee – complete the job without the right equipment, or ignore an emergency. If you sustain an injury in this situation, you can recover compensation even though you did not follow a known safety rule and that failure caused your injury.

 

For example, I’ve obtained workers comp for a union lineman who violated an OSHA safety rule after his employer failed to provide the required safety equipment, and he had to act in an emergency (restoring electrical power to someone who relied on powered medical equipment for survival).

 

The Commission can award benefits even when a safety rule is technically violated, if the circumstances that forced the violation were outside your control.

 

What to Do If the Carrier Raises the Willful Misconduct Defense

 

So you’ve received the employer’s notice stating you violated a safety rule, either through a Commission filing or in the employer’s answers to discovery.

 

Here’s what to do:

 

The incident report is your most important document. Request it immediately.

 

Why? Because the employer’s manager or safety director fills it out in the hours after your accident – before the carrier’s lawyers get involved, before the claims adjuster discusses litigation strategy with the employer, and before anyone decides which safety rule to raise to avoid paying what you’re entitled to. In Davenport, the employer’s own manager, an OSHA trainer, checked the box that my client followed the applicable rules and wrote that earplugs aren’t required when burning or welding. That was their witness.

 

From there, start building your case around the four elements the employer must prove. Use the discovery process to answer these questions:

 

What rule do they claim you violated, and is it in writing with enough specificity to constitute a rule – not just a general instruction to “work safely”?

 

When does the employer claim it told you about the rule – and can it produce documentation showing that communication happened before the accident, not after?

 

What does the incident report actually say? If the safety rule isn’t mentioned there, that silence matters.

 

Who trained you, and what will they actually testify? As the Davenport case showed, the person who trained you may turn out to be your best witness.

 

How often did the employer discipline employees for violating this specific rule? Zero enforcement history is a meaningful gap in their proof.

 

The employer’s incident report, filled out in the hours after your accident, is often the most honest document in the file. Request it early.

 

Get a Direct Answer About Your Case

 

If your workers comp claim has been denied or challenged because of an alleged safety rule violation, I can tell you whether the employer has actually met their burden – and what your options look like from here.

 

Call or text me at 804-251-1620 or 757-810-5614. We’ll get back to you within one business day. The consultation is free, and I work on contingency – you don’t pay unless I recover for you.

 

In the meantime, you can read about other cases I’ve handled at cpollardlaw.com/case-results, or learn more about how Virginia workers compensation claims work at cpollardlaw.com/virginia-workers-compensation.