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JEU v. HYATT REGENCY RESTON, et al.


JEU v. HYATT REGENCY
RESTON, et al.

(unpublished)


OCTOBER 7, 1997
Record No. 0511-97-4

RAPHAEL JEU

v.

HYATT REGENCY RESTON and
EMPLOYERS INSURANCE OF WAUSAU

MEMORANDUM OPINION[1]
PER CURIAM
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Present: Judges Bray, Annunziata and Overton

(Raphael Jeu, pro se, on briefs).

(Lisa C. Healey; Siciliano, Ellis, Dyer and Boccarosse, on
brief), for appellees.


Raphael Jeu (claimant) contends that the Workers’ Compensation
Commission (commission) erred in refusing to award him
compensation benefits on the ground that his injuries did not
arise out of and in the course of his employment, but rather
resulted from his active participation in horseplay with a
co?worker. 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. Rule
5A:27.

"A finding by the Commission that an injury [did or 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." Dublin Garment Co., Inc. v. Jones, 2 Va.
App. 165, 167, 342 S.E.2d 638, 638 (1986). Findings of fact made
by the commission will be upheld on appeal if supported by
credible evidence. See James v. Capitol Steel Constr.
Co.
, 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
"In determining whether credible evidence exists, the
appellate court does not retry the facts, reweigh the
preponderance of the evidence, or make its own determination of
the credibility of the witnesses." Wagner Enters., Inc.
v. Brooks
, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).

The commission held that the evidence did not support
claimant’s assertion that his co-worker, Mostafa Hanif, assaulted
him. Rather, the commission found that the evidence proved that
claimant and Hanif engaged in mutual horseplay, which was not
condoned by the employer and which resulted in claimant’s
injuries. In so ruling, the commission found as follows:

Hanif was prone to giving "bear hugs" and there is
no indication that he lifted the claimant with any malicious
intent. Rather, the evidence indicates that the claimant and
Hanif were engaged in horseplay which escalated beyond that of
previous horseplay between the two parties. Prior to the injury,
the claimant was hitting Hanif with a towel and fully engaged in
activities leading up to the incident, including what appeared to
be playing "tag" five to ten minutes before the
incident. Evidence from employees and the restaurant manager
indicated that horseplay was not condoned by the employer.

The commission’s findings are supported by the testimony of
Deborah Peruzzotti, the employer’s assistant restaurant manager,
and claimant’s co-workers, Catherine Leveroni, Redozane
Benbatoul, and Hanif. Because credible evidence supports the
commission’s factual findings, we will not disturb them on
appeal. Based upon these findings, the commission could
reasonably conclude that claimant and Hanif were engaged in
mutual horseplay which caused claimant’s injuries. "Where
co?workers mutually participate in [horseplay] the resulting
injury is not an ‘injury by accident’ as contemplated by [the
Act]." Jones, 2 Va. App. at 168, 342 S.E.2d at 639.

For these reasons, we affirm the commission’s decision.

Affirmed.

 

 

FOOTNOTES:

[1] Pursuant to Code ? 17-116.010 this opinion is
not designated for publication.

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