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COURT OF APPEALS OF VIRGINIA
Present:    Judges Willis, Annunziata and Senior Judge Coleman∗
Argued at Richmond, Virginia
DAN RIVER, INC.
OPINION BY
v.    Record No.  0723-00-2                                         JUDGE ROSEMARIE ANNUNZIATA
                                                                    FEBRUARY  13,  2001
HENRY JUNIOR GIGGETTS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
James A.L. Daniel  (Martha White Medley;
Elizabeth B. Carroll; Daniel, Vaughan,
Medley & Smitherman, P.C., on brief), for
appellant.
J. Gregory Webb  (Michie, Hamlett, Lowry,
Rasmussen & Tweel, P.C., on brief), for
appellee.
The appellant, Dan River, Inc., contends on appeal that the
appellee, Henry Junior Giggetts, is not entitled to workers'
compensation benefits because:                                      (1) Giggetts' willful misconduct
precludes compensation, pursuant to Code  §  65.2-306;  (2)
Giggetts did not experience a compensable injury by accident
that arose out of, as well as in the course of, his employment;
(3) Giggetts' alleged disability was caused by a pre-existing
condition; and  (4) Giggetts failed to market his remaining
capacity to work.    For the reasons that follow, we affirm.
∗ Judge Coleman participated in the hearing and decision of
this case prior to the effective date of his retirement on
December  31,  2000 and thereafter by his designation as a senior
judge pursuant to Code  §  17.1-401.




BACKGROUND
Consistent with well-accepted principles, we view the
evidence and the inferences that may be drawn from that
evidence, in the light most favorable to Giggetts, the party
prevailing below.    Metro Mach. Corp. v. Lamb,  33 Va. App.  187,
191,  532 S.E.2d  337,  338  (2000).    Giggetts worked for Dan River,
Inc. as a long-distance or "over the road" truck driver during
the period relevant to this appeal.    On November  17,  1998,
Giggetts left Danville, Virginia, made a delivery in Morgan,
North Carolina, and was proceeding to Lake City, South Carolina,
when he was involved in an accident.    Giggetts was rounding a
curve on a two-lane road in drizzling rain and drifting fog,
when he saw a two-ton truck with its brake lights on, proceeding
very slowly about twenty feet in front of him.    The estimated
speeds of Giggetts' truck and the two-ton truck were forty miles
per hour and five to fifteen miles per hour, respectively.    The
posted speed limit was fifty-five miles per hour.    Realizing he
could not stop his truck in time, Giggetts steered to the right
in order to avoid a collision and injury to the two-ton truck's
occupants, and to avoid a collision with a school bus that was
traveling toward Giggetts in the opposite lane.
Giggetts' truck struck a culvert pipe with its front wheel,
lifted into the air, and came back down, hitting the culvert
pipe again upon impact.    Believing that his truck was going to
go back across the road, Giggetts jerked the truck to the right




to avoid hitting the two-ton truck or the school bus, causing
the truck to jackknife and come to rest in a residential yard.
Giggetts stated that when his truck left the road the second
time, his truck "gave  [him] a great big shook or shake or
whatever because the quickness of the stopping with my seatbelt
jerked me."    In describing the "jerk," Giggetts stated that the
jerk was violent and involved a whipping motion from left to
right.
Giggetts did not experience any pain until an hour and
one-half to two hours later, reporting to Dan River that he was
experiencing "sharp pains running down both of  [his] legs."    He
was treated at a local hospital the day of the accident.    At the
time of the hearing, Giggetts reported continuous pain in his
back and left leg, the need to take sleep medication, and the
inability to drive.    He testified that he was able to work
around his house, but that he had difficulty standing or sitting
for long periods of time.
Shortly after the accident, Dan River suspended Giggetts.
In January  1999 Giggetts applied for unemployment benefits
through the Virginia Employment Commission.    He was told that in
order to receive benefits, he must be willing and able to work.
Thereafter, Giggetts applied for several jobs, but was unable to
obtain employment.
ANALYSIS




On appeal, we are bound by findings of fact made by the
Workers' Compensation Commission if credible evidence in the
record supports those findings.    A.G. Van Metre, Jr., Inc. v.
Gandy,  7 Va. App.  207,  215,  372 S.E.2d  198,  203  (1988).    We view
the evidence in the light most favorable to Giggetts, the party
prevailing below.    Southland Corp. v. Gray,  18 Va. App.  366,
369,  444 S.E.2d  19,  21  (1994).    The commission's decision will
not be overturned unless plainly wrong or without evidence to
support it.    Id.
I.
Willful Misconduct
Under Virginia law, an employee cannot receive compensation
under the Workers' Compensation Act when his or her injury is
the result of either willful misconduct or willful breach of a
rule or regulation adopted by the employer.    Code  §  65.2-306(A).
To establish this defense, the employer must prove:                         (1) the
rule was reasonable;  (2) the employee knew of the rule;  (3) the
rule was for the employee's benefit; and  (4) the employee
intentionally performed the forbidden act.    Buzzo v. Woolridge
Trucking, Inc.,  17 Va. App.  327,  332,  437 S.E.2d  205,  208
(1993).    "[W]hether  [the employee's] conduct in the abstract
constitutes willful misconduct is a mixed question of fact and
law and is reviewable by this Court on appeal."    Id. at  333,  437
S.E.2d at  209.




Dan River alleges that Giggetts was driving too fast for
the given weather conditions on the morning of his accident and
that he failed to properly use the truck's braking and steering
systems.    Dan River contends that this conduct constituted a
violation of Federal Motor Carrier Safety Regulations.1    We
disagree.
The evidence in the record supports the commission's
finding that Giggetts was not exceeding the speed limit.    The
posted speed limit on the road on which Giggetts was traveling
was fifty-five miles per hour.    Giggetts testified that he was
traveling forty miles per hour because of patchy fog.    Although
Giggetts' speed was disputed by the employer, the commission
resolved this fact in favor of Giggetts and, because the
evidence supports that conclusion, we will not disturb that
finding on appeal.    Southwest Tire, Inc. v. Bryant,  31 Va. App.
655,  661,  525 S.E.2d  563,  566  (2000).
The evidence also supports the commission's finding that
Giggetts was "performing with the caution necessary under the
conditions," and properly used the vehicle's braking and
steering systems, as required by the Federal Motor Carrier
Regulations.    Giggetts testified that he was traveling below the
posted speed limit because of the fog he had encountered and
1 The parties stipulated that Dan River had adopted the
Federal Motor Carrier Regulations as company rules, and Giggetts
testified that he had received training pertaining to the
regulations.




that, when he entered the last patch of fog before the accident,
he had slowed down.    Although he was unable to stop in time to
avoid the accident that occurred, the conduct described does not
constitute a willful violation of a safety regulation.
Even were we to conclude that the weather conditions
Giggetts encountered dictated a lesser speed, his conduct, at
most, may be characterized as negligent.    However, negligence
alone, even gross negligence, will not support a finding of
willful misconduct.    Buzzo,  17 Va. App. at  332,  437 S.E.2d at
208; Spruill v. C.W. Wright Constr. Co.,  8 Va. App.  330,  334,
381 S.E.2d  359,  361  (1989).
II.
Injury Arising Out of Employment
Dan River next alleges that Giggetts' injury did not "arise
out of" his employment.    See Code  §  65.2-101.    We disagree.
An injury arises out of one's employment if there is a
causal connection between the injury and the "conditions under
which the work is required to be performed."    Metcalf v. A.M.
Express Moving Sys., Inc.,  230 Va.  464,  468,  339 S.E.2d  177,  180
(1986).    Virginia employs the "actual risk test" in determining
whether a work-related injury is compensable.    County of
Chesterfield v. Johnson,  237 Va.  180,  185,  376 S.E.2d  73,  75
(1989).    Under this test, "'[t]he causative danger must be
peculiar to the work, incidental to the character of the
business, and not independent of the master-servant




relationship.'"    Id. at  183-84,  376 S.E.2d at  75  (citation
omitted).    The test excludes injuries "'which the employee would
have been equally exposed to apart from the employment.'"    Id.
at  183,  376 S.E.2d at  75  (citation omitted).
Giggetts' job required him to be on the road in the early
morning hours, driving a tractor-trailer truck during foggy
conditions, exposed to the hazards of driving.    Even if
Giggetts' injury resulted from his negligence, he was exposed to
the risk of being injured in an accident as a result of his job
responsibilities, and the injury he suffered resulted from that
risk.    Therefore, we conclude that Giggetts' injury "arose out
of" his employment.
III.
Pre-existing Condition
Dan River further alleges that Giggetts' injury was the
result of a pre-existing condition and not the result of the
November  17 accident.    We find this allegation to be without
merit.
The reports submitted by the two treating physicians
established that Giggetts' injury was caused by the accident.
Giggetts testified that he suffered a minor back injury in
February  1996.    However, he sought no medical treatment for the
injury and missed no work because of the February  1996 injury.
Although the employer's physician reported that Giggetts was
suffering from a "spinal stenosis" which was "likely old," he




also reported that Giggetts was suffering from a "small disc
herniation."    The employer's physician could not state "with
utmost certainty" when the latter injury had occurred.    The
commission explicitly stated they found the testimony of the
treating physicians to be more persuasive.    Based upon the
evidence introduced, the commission made a factual finding that
Giggetts' present injury was the result of the accident in
question, and not the result of aggravation of his alleged
pre-existing condition.    Because the evidence supports this
finding, we will not disturb it on appeal.    Ogden Aviation Serv.
v. Saghy,  32 Va. App.  89,  101,  526 S.E.2d  756,  762  (2000)
(conflicting medical opinions raise questions of fact to be
resolved by the commission and if supported by credible
evidence, are binding on appeal); WLR Foods, Inc. v. Cardosa,  26
Va. App.  220,  230,  494 S.E.2d  147,  152  (1997)  ("'The fact that
there is contrary evidence in the record is of no consequence.'"
(citation omitted)).
IV.
Marketing Remaining Work Capacity
We also find no merit in the employer's final contention
that Giggetts should be denied compensation because he failed to
market his remaining work capacity.    In Virginia, an employee is
only required to market his or her remaining work capacity if
the employee is not totally disabled.    Gandy,  7 Va. App. at  216,
372 S.E.2d at  203.    Here, the commission made a factual finding




that Giggetts was totally disabled from December  28,  1998 to
March  9,  1999.    This finding is supported by credible evidence.
Although Giggetts looked for other work during that time period,
this fact, alone, is not determinative.    Id.    Therefore,
Giggetts' claim is not barred on the ground that he failed to
market his remaining work capacity.
For the reasons stated above, we affirm the commission's
decision.
Affirmed.

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