                     COURT OF APPEALS OF VIRGINIA


Present: Judges Clements, Agee∗ and Felton
Argued at Richmond, Virginia


EDWARD RAY JONES
                                            MEMORANDUM OPINION∗∗ BY
v.   Record No. 1766-02-2                JUDGE JEAN HARRISON CLEMENTS
                                               SEPTEMBER 9, 2003
VIRGINIA ELEVATOR COMPANY, INC. AND
 COMMONWEALTH CONTRACTORS GROUP
 SELF-INSURANCE ASSOCIATION


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Gregory O. Harbison (Elizabeth C. Griffin;
             Geoffrey R. McDonald & Associates, on brief),
             for appellant.

             R. Ferrell Newman (Thompson, Smithers,
             Newman, Wade & Childress, on brief), for
             appellees.


     Edward Ray Jones (claimant) appeals a decision of the

Workers' Compensation Commission (commission) denying his claim

for temporary total disability benefits and medical benefits

from Virginia Elevator Company, Inc. and Commonwealth

Contractors Group Self-Insurance Association (collectively,

employer).     On appeal, claimant contends the commission erred in

finding that the injury by accident he suffered did not arise


     ∗
       Justice Agee participated in the hearing and decision of
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.
     ∗∗
       Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
out of and in the course of his employment.   Finding no error,

we affirm the commission's decision.

     As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, this opinion recites only those facts and incidents of

the proceedings as are necessary to the parties' understanding

of the disposition of this appeal.

                          I.   BACKGROUND

     "By well established principles, we view the evidence in

the record in the light most favorable to the party prevailing

before the commission."   Boys and Girls Club of Virginia v.

Marshall, 37 Va. App. 83, 85, 554 S.E.2d 104, 105 (2001).   So

viewed, the evidence established that claimant worked for

employer for seven years as an elevator constructor.   Employer's

business involved the removal and installation of elevators.     On

March 12, 2001, claimant was working at a job site in Farmville,

Virginia removing an old elevator and installing a new one.

Needing some hydraulic fittings and other equipment for the

project, claimant called David C. Wilson, the operations manager

at the employer's main office in Richmond, Virginia, and

requested the parts.   Informed by Wilson that the delivery truck

was unavailable, claimant told him he would "swing by" and pick

up the needed parts on his way home after attending a union

meeting in Richmond that evening.    Claimant arranged with Wilson


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for the parts to be placed in a wheelchair lift in the parking

lot of employer's main office.

        Wilson testified that the material and equipment needed at

a job site were sometimes delivered by truck to the site and

sometimes picked up at the main office by the workers

themselves.    Wilson further testified that the workers were not

obligated to come to employer's main office after hours to pick

up parts or materials but acknowledged they were free to do so

and did so routinely for out-of-town jobs when they could not

make it to the office during regular business hours.

        Claimant arrived at the premises of the main office around

9:30 p.m.    It was dark and raining at the time.   Spanning the

front of the parking lot was an eight-foot-high chain link

security fence, on top of which were three strands of barbed

wire.    The fence had a gate that was secured after hours by a

combination lock.    The company's employees were given the

combination of the lock so they could access the lot to pick up

parts or materials after hours, if needed.    Claimant intended to

enter the lot through the gate by unlocking the combination

lock.    Although claimant knew the combination, he was unable,

after several attempts, to open the lock.    Claimant then

attempted to access the lot by climbing over the security fence.

As he did so, he became entangled in the barbed wire at the top

of the fence and fell into the lot, injuring his left heel.


                                 - 3 -
Although he had climbed the fence previously, claimant never

told employer he had done so.1

     Claimant testified that he could not have picked up the

parts the next morning during business hours and timely arrived

at the job site.   Claimant's co-worker at the job site, Steven

Davis, testified that, although the parts requested by claimant

were needed to continue to the next step of the project, their

work at the job site would not have come to a halt without them.

     Finding claimant's injury did not arise out of and in the

course of his employment, the deputy commissioner denied

claimant's request for compensation benefits.   Upon review, the

commission affirmed the deputy commissioner's decision.   This

appeal by claimant followed.

                           II.   ANALYSIS

     To recover benefits under the Workers' Compensation Act, an

employee must prove "by a preponderance of the evidence that he

suffered an injury by accident 'arising out of and in the course

of [his] employment.'"   Falls Church Const. Corp. v. Valle, 21

Va. App. 351, 359-60, 464 S.E.2d 517, 522 (1995) (alteration in

original) (quoting Code § 65.2-101).   Claimant argues, on appeal,


     1
       Although employer presented evidence of claimant's
consumption of alcohol on the evening in question, the
commission expressly noted that it "ma[d]e no finding regarding
the claimant's alleged intoxication and its relationship to the
incident in question." As neither party challenges the
commission's ruling in that regard, the matter is not before us
on appeal. See Calvin v. Calvin, 31 Va. App. 181, 184 n.2, 522
S.E.2d 376, 377 n.2 (1999).
                              - 4 -
that he is entitled to compensation benefits because he proved his

injury arose out of and in the course of his employment.   We

disagree.

                 A finding by the [c]ommission that an
            injury arose out of and in the course of
            employment is a mixed finding of law and
            fact and is properly reviewable on appeal.
            Upon appellate review, this Court will
            uphold findings of fact made by the
            [c]ommission when supported by credible
            evidence.

Dublin Garment Co., Inc. v. Jones, 2 Va. App. 165, 167, 342

S.E.2d 638, 638 (1986) (citations omitted).   "Accordingly, we

must determine whether the facts presented are sufficient as a

matter of law to justify the [c]ommission's finding" that

claimant's injury did not arise out of and in the course of his

employment.   Id. at 167, 342 S.E2d at 639.

     "The phrase 'arising out of' pertains to the origin or

cause of the injury."   Combs v. Virginia Elec. & Power Co., 259

Va. 503, 508, 525 S.E.2d 278, 282 (2000).

            An injury "arises 'out of' the employment,
            when there is apparent to the rational mind
            upon consideration of all the circumstances,
            a causal connection between the conditions
            under which the work is required to be
            performed and the resulting injury. Under
            this test, if the injury can be seen to have
            followed as a natural incident of the work
            and to have been contemplated by a
            reasonable person familiar with the whole
            situation as a result of the exposure
            occasioned by the nature of the employment,
            then it arises 'out of' the employment."



                                - 5 -
Id. (quoting In re Employers' Liab. Assur. Corp., Ltd., 102 N.E.

697, 697 (Mass. 1913)).   To determine whether an injury arose

out of the employment, "we apply an 'actual risk test,' meaning

that the employment must expose the employee to the particular

danger causing the injury, notwithstanding the public's exposure

generally to similar risks."   Id. at 510, 525 S.E.2d at 282.

     By contrast, "'[t]he phrase arising in "the course of"

[employment] refers to the time, place, and circumstances under

which the accident occurred.'"    Id. at 511, 525 S.E.2d at 283

(second alteration in original) (quoting County of Chesterfield

v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989)).   "[A]n

accident occurs in the 'course of employment' when it takes

place within the period of employment, at a place where the

employee may be reasonably expected to be, and while he is

reasonably fulfilling the duties of his employment or is doing

something which is reasonably incidental thereto."   Connor v.

Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 (1962).

     Here, testimony revealed that it was customary for

employees to pick up parts or materials after hours at the

employer's main office by using the combination lock to unlock

the gate in the fence at the front of the office's parking lot.

Thus, had claimant been injured while executing that accepted

method of picking up parts after hours, his injury would have

been compensable.


                                 - 6 -
     That was not what happened in this case, however.    The

evidence established that claimant sustained his injury when,

failing to unlock the combination lock, he then climbed up the

eight-foot-high security fence in the dark and in the rain,

became entangled in the barbed wire at the top of the fence, and

consequently fell into the lot.   The evidence further

established that claimant was not required to pick up parts or

materials at employer's main office after hours and that his

work at the job site would not have stopped if he had not picked

up the parts that night.   Furthermore, the evidence established

that claimant never told employer that he had previously climbed

the security fence to access the lot.   Moreover, no evidence was

presented suggesting that employer knew that claimant or anyone

else had ever climbed the fence to access the lot.

     We conclude that this credible evidence is sufficient, as a

matter of law, to justify the commission's determination that

claimant's injury did not arise out of and in the course of his

employment.    As the commission noted, while it may have been an

accepted practice for employees to pick up parts after hours at

the employer's main office by unlocking the gate, clearly doing

so by scaling the eight-foot-high security fence topped with

barbed wire, in the dark, while it was raining "was not a duty

required of [claimant] or his job" and, thus, not "a risk of his

employment."   Likewise, atop a barbed wire fence that was


                                - 7 -
obviously intended to keep people out of the lot was not a place

where employer would reasonably expect claimant to be.

     Thus, we hold the commission did not err in concluding that

claimant's injury did not arise out of and in the course of his

employment.   Accordingly, we affirm the commission's decision.

                                                         Affirmed.




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