                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Willis


JASON SHORTT
                                                                 MEMORANDUM OPINION*
v.     Record No. 1973-03-2                                          PER CURIAM
                                                                   NOVEMBER 18, 2003
LDC MASONRY, INC. AND
ERIE INSURANCE COMPANY


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 (William F. Karn; Butler Williams & Skilling, P.C., on brief), for
                 appellant.

                 (Daniel E. Lynch; John T. Cornett, Jr.; Williams & Lynch, on brief),
                 for appellees.


       Jason Shortt (claimant) contends the Workers’ Compensation Commission erred in

finding he failed to prove his February 14, 2002 injury by accident occurred in the course of his

employment. Upon reviewing the record and the parties’ briefs, we conclude that this appeal is

without merit. Accordingly, we summarily affirm the commission’s decision. Rule 5A:27.

       On appeal, we view the evidence in the light most favorable to LDC Masonry, Inc.

(employer), the party prevailing before the commission, together with all reasonable inferences

that may be drawn. See Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525

S.E.2d 55, 56 (2000).

       In December 2001, claimant began working for employer as a brick mason on a large

commercial project for the Henrico Water Treatment Plant. David Sharp, who drove a forklift

for employer, provided claimant with a ride to and from work each day. Sharp was required to


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
be at work at 6:30 a.m. Claimant’s regular work hours were from 7:00 a.m. until 3:30 p.m.

However, if the temperature was less than thirty-seven degrees, the brick masons could not start

laying brick until it got warmer. Laborers began work first thing in the morning regardless of the

outside temperature. On cold days, when claimant got to work early with Sharp, he “s[at] in the

car and wait[ed] a half hour or 45 minutes.”

       On February 14, 2002, claimant arrived at work with Sharp at 6:45 a.m. The outside

temperature at that time was nineteen degrees. At the end of the prior workday, claimant’s

supervisor, Frank Coluccio, had told claimant and the other brick masons that they were not

going to start laying brick until 9:00 a.m. on February 14, 2002, because the temperature was

going to be too cold. Claimant and Sharp exited Sharp’s car, and Sharp began to warm up a

forklift. Claimant stood in front of the car. It was cold and windy. Claimant saw Frankie

Dodson, a laborer, on a scaffold in front of him, struggling to transfer bricks from one level to a

higher level. Claimant hollered to Dodson and asked if he needed help. Dodson responded,

“yes,” so, claimant went to help him.

       Claimant and Dodson stocked one level with bricks from the level below, and claimant

was on the way up to the next level when the scaffold railing came off in his hand and he fell and

broke his left ankle and right foot. Claimant’s accident occurred around 8:00 a.m., after he had

been on the scaffolding for approximately forty-five minutes. Claimant admitted there were

more than ten laborers on the job site that morning and that employer did not hire him to help

laborers. He also stated that “it [was] unusual for a spoiled brick layer to help out a laborer . . . .”

Claimant admitted another laborer could have helped Dodson. Claimant assumed he was going

to get paid for the time he spent helping Dodson, because while he was working on the

scaffolding, Coluccio and a man named “Larry” walked by and looked at claimant, but did not

say anything. Claimant testified that Coluccio passed by him two to three times.

                                               -2-
       Claimant had not signed in to work before his accident. He assumed he would have

signed in around 9:00 a.m. Employer did not pay claimant for the work he performed on

February 14, 2002. Claimant assumed that “being up there on the scaffolding and being seen,

that [he] would have been paid for that subsequent to [his] fall.” Claimant testified that no one

associated with employer ever directly told him not to help a laborer. He contended that he had

performed labor tasks on other mornings, as instructed by employer, while he was waiting for

laborers to make the mortar and that he was paid for that work. Those tasks involved making

saw cuts and setting up scaffolding. He admitted that those occasions did not occur before they

could begin laying bricks because it was too cold, but rather they happened because the laborers

did not have the mortar ready at the time the brick masons were supposed to start work at 7:00

a.m. Employer paid claimant twenty dollars per hour, while Dodson, a skilled laborer, was paid

between eleven and twelve dollars per hour.

       Coluccio, employer’s superintendent, testified that the brick masons were not to report

for work until 9:00 a.m. on February 14, 2002, due to the expected cold temperature. Coluccio

testified that he always started and stopped the work of the brick masons. Coluccio stated that

the brick masons were not expected to be working in any capacity before “they get the green

light from [him]” to start working. Coluccio stated that claimant was not “on the clock” nor was

he being paid for his time when he fell off the scaffolding at 8:00 a.m. on February 14, 2002.

Coluccio testified that the brick masons were not expected to offer any assistance to laborers on

the job. He denied asking claimant to do any task that would be considered a laborer’s task. He

explained that the task of cutting bricks, which could be done by laborers or brick masons, was

left to the discretion of the masons. They could perform that task if they needed to do so in order

to continue working, rather than wait for a laborer. Coluccio denied seeing claimant on the

scaffolding at any time on the morning of February 14, 2002 before his accident, but agreed that

                                              -3-
he may have walked by. Claimant never asked Coluccio if he could start work early that

morning to help out Dodson. The work that claimant was doing when he fell was typically

performed by a laborer, not a brick mason. Coluccio estimated that there could have been up to

twenty-five laborers on the job site that morning. Coluccio denied that the work claimant was

performing when he was injured was beneficial to employer.           He described Dodson as a

“qualified man” who “could have done the job and had the time to get the job done.”

       “To qualify for workers’ compensation benefits, an employee’s injuries must result from

an event ‘arising out of’ and ‘in the course of’ the employment.” Smithfield Packing Co., Inc. v.

Carlton, 29 Va. App. 176, 180, 510 S.E.2d 740, 742 (1999) (quoting Pinkerton’s, Inc. v. Helmes,

242 Va. 378, 380, 410 S.E.2d 646, 647 (1991)). “Whether an injury arises out of and in the

course of employment involves a mixed question of law and fact, which we review de novo on

appeal.” Blaustein v. Mitre Corp., 36 Va. App. 344, 348, 550 S.E.2d 336, 338 (2001). However,

the findings of fact made by the commission are binding upon us when supported by credible

evidence. See Ablola v. Holland Rd. Auto Center, Ltd., 11 Va. App. 181, 183, 397 S.E.2d 541,

542 (1990).

       “An injury ‘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.’” Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (citation

omitted).

                        “If the voluntary act of an employee which causes an injury
               is sufficiently related to what the employee is required to do in
               fulfilling his contract of service, or is one in which someone in a
               like capacity may or must do in the interest of his employer’s
               business, the fact that the employee was not actually required to
               perform the act will not impair his right to recover compensation.”

Id. at 564, 186 S.E.2d at 65 (citation omitted).
                                              -4-
       Based upon this record, the commission ruled that claimant failed to prove his injuries

occurred in the course of his employment. In so ruling, the commission found as follows:

                       The claimant testified that the employer did not direct him
              to help the laborer prior to his scheduled start time of 9:00 a.m. on
              the morning of February 14, 2002. The claimant also testified that
              he was hired as a brick mason, not as a laborer. Mr. Coluccio
              testified that Frankie Dodson was a qualified laborer and that there
              were approximately twenty-five laborers working that morning.
              The evidence establishes that the claimant, a skilled brick mason,
              was not required to move bricks up on the scaffold as part of his
              job duties, nor was he required to work before 9:00 a.m. on that
              particular day. We conclude that the claimant was not where he
              was reasonably expected to be, and was not reasonably fulfilling
              the duties of his employment at the time of the accident.

       Credible evidence supports the commission’s conclusion that employer could not

reasonably expect claimant to be working before 9:00 a.m. on February 14, 2002, nor could

employer reasonably expect claimant to be assisting a laborer to move bricks up on to the

scaffolding before work hours that day.      Claimant arrived at work early that day as an

accommodation to himself, not employer, because Sharp provided claimant a ride to work.

Claimant, an hourly-paid employee, had not signed in to work before his accident and was not

being paid by employer at that time. On February 13, 2002, claimant’s supervisor told him that

he would not begin work until 9:00 a.m. the next day due to the expected cold temperatures,

which would prevent laborers from making mortar before that time. Claimant admitted that

brick masons did not normally assist laborers and that he was not hired to help laborers.

Employer did not authorize or instruct claimant to assist the laborers in moving bricks up on to

scaffolding before 9:00 a.m. on February 14, 2002.

       Based upon this record, employer could not reasonably expect claimant to have been

working on scaffolding assisting a laborer before 9:00 a.m. on February 14, 2002, and claimant

was not reasonably fulfilling the duties of his employment or doing something reasonably

incidental thereto when he incurred his injuries. Employer did not authorize or instruct claimant
                                            -5-
to assist Dodson. Moreover, claimant’s voluntary act was not sufficiently related to his duties as

a brick mason, or one that a brick mason might or must do in the interest of employer’s business.

Credible evidence proved that there were many laborers on the job site who could have assisted

Dodson.

       For these reasons, we affirm the commission’s decision that claimant’s injuries did not

occur in the course of his employment.

                                                                                        Affirmed.




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