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COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

RAPHAEL JEU 

 MEMORANDUM OPINION*

v. Record No. 0511-97-4 PER CURIAM 

 OCTOBER 7, 1997 

HYATT REGENCY RESTON and 

 EMPLOYERS INSURANCE OF WAUSAU 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (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 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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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.