                    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



                                 4
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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