COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Frank
DONALD JAMES JOHNSON
MEMORANDUM OPINION*
v. Record No. 2266-99-2 PER CURIAM
JANUARY 18, 2000
COUNTY OF HENRICO POLICE and
COUNTY OF HENRICO
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Malcolm Parks; Maloney, Huennekens, Parks,
Gecker & Parsons, P.C., on brief), for
appellant.
(Ralph L. Whitt, Jr.; Michael P. Del Bueno;
Williams, Lynch & Whitt, P.C., on brief), for
appellees.
Donald James Johnson ("claimant") contends that the
Workers' Compensation Commission (commission) erred in finding
that he failed to prove that he sustained an injury by accident
arising out of his employment on September 12, 1998. 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. See Rule 5A:27.
On appeal, we view the evidence in the light most favorable
to the prevailing party below. See R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). To
* Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
recover benefits, claimant must establish that he suffered an
"injury by accident arising out of and in the course of his
employment," Code § 65.2-101, and "that the conditions of the
workplace or some significant work related exertion caused the
injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,
484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out of'
refers to the origin or cause of the injury." County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74
(1989). "Whether an injury arises out of the employment is a
mixed question of law and fact and is reviewable by the
appellate court." Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at
305. However, unless we conclude that claimant proved, as a
matter of law, that his injury arose out of his employment, the
commission's finding is binding and conclusive upon us. See
Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d
833, 835 (1970).
On September 12, 1998, while in the course of his
employment as a police officer, claimant was approached by
another police officer, who clapped claimant on the back and
lower neck, as a form of greeting, without any intention to hurt
claimant. Claimant felt immediate pain and later sought medical
treatment for injuries sustained as a result of the incident.
In denying claimant's application, the commission found as
follows:
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[W]e have no evidence that [claimant's] work
exposed him to any enhanced risk of being
greeted by a clap on the back. Nor is there
any evidence that this type of greeting
benefited the employer or the employee's
work as a police officer. Although there is
no direct evidence, we can infer that such a
greeting is motivated through friendship,
but need not make such a finding in order to
decide this case. . . .
[Claimant] has failed to prove that the
greeting which injured him was other than
personal in nature. . . . A clap on the
back in greeting is more akin to the
friendly "goosing" in [Richmond Newspapers
v.] Hazelwood, [249 Va. 369, 457 S.E.2d 56
(1995)] than it is to horseplay, which is
defined as "rough or boisterous play or
pranks." Also, we decline to find such a
greeting constitutes an assault, or that it
was directed at the claimant due to the
employment. To the contrary, such a
friendly act pervades the common human
intercourse of life both inside and outside
the workplace, with no special relationship
to the employment.
(Citation omitted.)
The commission's factual findings and the inferences fairly
deducible from those findings are amply supported by the record.
Accordingly, they are binding on appeal. No evidence indicated
that the officer who "clapped" claimant on the back and neck did
so with any intent to engage in playful or prankish behavior,
such that his actions could be considered horseplay. In
addition, no evidence brought this case within the ambit of a
compensable assault case. Rather, the undisputed evidence
proved that the injury was caused by the personal greeting of
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one police officer to another and did not arise from an actual
risk connected with claimant's employment. Contrary to
claimant's argument, no evidence showed that the greeting was
directed at claimant because of his employment as a police
officer or that it benefited the employer in any manner.
Accordingly, we cannot find as a matter of law that claimant's
evidence sustained his burden of proving that his injury arose
out of his employment.
For these reasons, we affirm the commission's decision.
Affirmed.
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