COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
CHARLES ALAN STATON
v. Record No. 0338-96-3 MEMORANDUM OPINION *
PER CURIAM
THOMAS E. CONNER T/A AUGUST 6, 1996
TONY E. CONNER ROOFING & GUTTERING
AND UNINSURED EMPLOYER'S FUND
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(John P. Vita, on brief), for appellant.
(James S. Gilmore, III, Attorney General;
Robert L. Walker, Assistant Attorney General;
John J. Beall, Jr., Assistant Attorney
General, on brief), for appellee Uninsured
Employer's Fund.
No brief for appellee Thomas E. Conner t/a
Tony E. Conner Roofing & Guttering.
Charles Alan Staton ("claimant") contends that the Workers'
Compensation Commission ("commission") erred in finding that (1)
he was not working as an employee of Thomas E. Conner t/a Tony E.
Conner Roofing & Guttering ("Conner Roofing") when he sustained
his August 13, 1993 injury by accident; and (2) his participation
on a softball team sponsored by Conner Roofing was not so closely
tied to his employment as to require a finding that his August
13, 1993 injury by accident arose out of and in the course of his
employment. Upon reviewing the record and the briefs of the
parties, we conclude that this appeal is without merit.
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission's decision. Rule
5A:27.
I.
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).
Claimant bore the burden of proving that an employer/employee
relationship existed on August 13, 1993 at the time of his
industrial accident. Craddock Moving & Storage Co. v. Settles,
16 Va. App. 1, 3, 427 S.E.2d 428, 430 (1993), aff'd, 247 Va. 165,
440 S.E.2d 613 (1994). Unless we can say as a matter of law that
claimant's evidence sustained his burden of proof, the
commission's findings are binding and conclusive upon us. Tomko
v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,
833 (1970).
"'[W]hen services or labor are rendered voluntarily without
a promise of compensation or remuneration of any kind, express or
implied, then the one providing the services or labor has
supplied them gratuitously and is not covered by the Act.'"
Jackson v. Ratcliff Concrete Co., 8 Va. App. 592, 594, 382 S.E.2d
494, 495 (1989) (quoting Charlottesville Music Ctr., Inc. v.
McCray, 215 Va. 31, 35, 205 S.E.2d 674, 678 (1974)).
The commission ruled that claimant failed to prove that an
employer/employee relationship existed between him and Conner
Roofing at the time of his injury by accident. In so ruling, the
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commission found that claimant was not Conner Roofing's employee,
but rather, he was "a volunteer working in a joint enterprise
with the other members of the softball team" when his industrial
accident occurred.
This finding is supported by the testimony of claimant,
Miller, Montgomery, Cooper, Clark, and Conner. Their testimony
established that Conner did not pay any of the workers, including
claimant, for their time spent working on August 13, 1993 on the
Sorrells' roofing job. The record supports the commission's
finding that the claimant and the other workers performed the
Sorrells' job as a fund-raising project to benefit the softball
team, and the workers used the money earned from the job to pay
softball team expenses.
The record supports the commission's finding that claimant
voluntarily rendered his services to perform the Sorrells'
roofing job without receiving compensation or wages from Conner
Roofing. Accordingly, the commission did not err in finding that
claimant was a volunteer and was not Conner Roofing's employee at
the time of his August 13, 1993 injury by accident, which
occurred while he worked on the Sorrells' job.
II.
A finding by the commission that an injury did not arise out
of and in the course of employment is a mixed finding of law and
fact and is properly reviewable on appeal. City of Richmond v.
Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).
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"We [have held] that an injury sustained as a result of
recreational activity arises out of employment only when the
activity is an accepted and normal activity within the
employment." Mullins v. Westmoreland Coal Co., 10 Va. App. 304,
307, 391 S.E.2d 609, 611 (1990).
The dispositive question is whether the . . .
recreational function is so closely
associated with the employment to be
considered an incident of it. Among the
other factors which bear upon that
determination . . . are the degree to which
the employer derives a benefit from the
activity, the degree of sponsorship and
participation by the employer, whether the
activity occurs on premises associated with
the employment, when the activity occurs in
relation to work, and the frequency or period
over which the activity has been conducted.
Kim v. Sportswear, 10 Va. App. 460, 465-66, 393 S.E.2d 418, 421
(1990).
Conner Roofing's sole involvement with the softball team was
to pay entry fees. No evidence showed that Conner Roofing
required or actively encouraged its employees to play on the
softball team or to work on softball team jobs. In fact, some of
the players on the team were not employed by Conner Roofing. No
evidence showed that pay, advancement, or benefits were in any
way connected to team membership. In addition, no evidence
indicated that Conner Roofing derived any substantial benefit
from the softball team, other than possible publicity caused by
having the company name on the player's hats. The team was
organized by and consisted of voluntarily participating employees
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and non-employees, and it was not a part of Conner Roofing's
business activities. Conner Roofing limited its role to
financial sponsorship of entry fees.
Based upon this record, we conclude that the commission did
not err in finding that claimant's evidence did not sustain his
burden of proving that his injury arose out of and in the course
of his employment.
For these reasons, we affirm the commission's decision.
Affirmed.
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