COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

LEE ROY HOLMES 

v. Record No. 2402-94-1 MEMORANDUM OPINION*

 PER CURIAM 

R. KENNETH WEEKS ENGINEERS JUNE 6, 1995 

AND 

CONTINENTAL CASUALTY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Stephen M. Smith, on brief), for appellant. 

 (William C. Walker; Donna White Kearney; Taylor & 

 Walker, on brief), for appellees. 

 The sole issue on this appeal is whether Lee Roy Holmes 

(claimant) sustained an injury by accident arising out of his 

employment on June 14, 1993. 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. 

 

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

designated for publication. 

 On June 14, 1993, claimant, a surveyor who worked for 

employer, was sitting on a stool between the sidewalk and the 

street in Virginia Beach, Virginia, sketching a topographic 

survey, when he was suddenly attacked by a pack of dogs. The 

parties stipulated that claimant was in the course of his 

employment at the time of the attack. At the time of the attack, 

claimant was wearing khaki pants, a summer shirt, a red and white 
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blazer, and a traffic vest. Claimant testified that he regularly 

came in contact with dogs both in his work and outside of his 

work. There was some evidence that the dogs may have escaped 

from a house near where claimant was working. 

 The commission denied compensation to claimant on the ground 

that his evidence failed to establish that the dog attack was a 

result of his work, and that he was not at a higher risk of being 

bitten by a dog than the general public. The commission held 

"[t]hat his work caused him to be at the location without other 

evidence of a connection between the employment and the attack is 

not sufficient to qualify for benefits under the Virginia Act." 

 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. City of 

Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 

(1985). "Virginia recognizes the 'actual risk' test which 

requires that the employment subject the employee to the 

particular danger that brought about his or her injury." Lipsey 

v. Case, 248 Va. 59, 61, 445 S.E.2d 105, 106-07 (1994) (citations 

omitted). Thus, 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.'" Bradshaw v. Aronovitch, 170 Va. 329, 335, 

196 S.E. 684, 686 (1938) (citation omitted). 
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 Applying these principles to this case, we find that the 

commission did not err in finding that claimant's evidence did 

not prove that he sustained an injury by accident that arose out 

of his employment. There was nothing about the character or 

nature of his work as a surveyor that "reasonably could have 

exposed or subjected [him] to the danger of being bitten by . . . 

a pet dog." See Lipsey, 248 Va. at 61, 445 S.E.2d at 107. There 

was no evidence of a causal connection between the conditions of 

claimant's required work and his injury. 

 Accordingly, we affirm the commission's decision. 

 Affirmed.