COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Baker and Overton∗

Argued at Norfolk, Virginia 

SMITHFIELD PACKING COMPANY, INC. AND 

 TRAVELERS INDEMNITY COMPANY OF ILLINOIS 

 OPINION BY 

v. Record No. 0402-98-1 JUDGE RICHARD S. BRAY 

 FEBRUARY 23, 1999 

U. W. CARLTON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 William W. Nexsen; J. Derek Turrietta 

(Stackhouse, Smith & Nexsen, on brief), for 

appellants 

 Alan P. Owens for appellee. 

 ∗

Judge Overton participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

January 31, 1999 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401, recodifying Code 

§ 17-116.01:1. 

 Smithfield Packing Company, Inc. and its insurer 

(collectively employer) appeal a decision of the Workers' 

Compensation Commission (commission) awarding benefits to U.W. 

Carlton (claimant) for an injury to his foot. On appeal, 

employer complains that the commission erroneously determined 

that the accident arose from employment and that the claim was 

not barred by willful misconduct. We disagree and affirm the 

award. 

 Upon review, we construe the evidence in the light most 

favorable to the party prevailing below, claimant in this 

instance. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. 

App. 503, 504, 339 S.E.2d 916, 916 (1986). Factual findings by 
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the commission that are supported by credible evidence are 

conclusive and binding upon this Court. See Code § 65.2-706(A); 

Rose v. Red's Hitch & Trailer Servs., Inc., 11 Va. App. 55, 60, 

396 S.E.2d 392, 395 (1990). "In determining whether credible 

evidence exists, [this Court will] 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) (citation 

omitted). "The fact that there is contrary evidence in the 

record is of no consequence if there is credible evidence to 

support the commission's finding." Id.

 The record discloses that claimant, while operating a 

tractor trailer for employer and undertaking a right turn, had 

driven "partially into the left lane" of the highway, a movement 

necessary to make a "wide" turn, "in a tight corner." During the 

maneuver, claimant observed a motorcycle approaching "a good 

piece [from] behind" and to the right, which "just kept speeding 

up," and stopped the truck to allow the motorcycle to pass. Once 

beyond the truck, the driver, William Pettit, "stopped in front 

. . ., got off his motorcycle, [and] came around to [claimant's] 

door," "hollering . . . 'Didn't you see me?'" Pettit "pull[ed] 

up on the truck trying to get in the door[,] . . . reached in and 

grabbed [claimant's] arm . . . [and] started pulling [him]." 

When claimant "fell out of the truck on to the ground[,] . . . 

[Pettit] was trying to kick [him] and [they] started tussling." 
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As claimant attempted "to get up [he] felt the truck roll over 

[his] foot," resulting in the subject injury. 

 In awarding the disputed benefits to claimant, the 

commission found that: 

 the need to occupy part of two lanes to 

negotiate a turn in a tractor trailer and the 

difficulty in seeing a small object such as a 

motorcycle on the right side are all risks 

peculiar to the claimant's employment as a 

truck driver. 

 We also agree that the altercation was 

business related. It is clear Mr. Pettit was 

angry because he was almost run over by a 

truck of which the claimant was the driver. 

There is no evidence that Pettit and the 

claimant knew each other or that the incident 

arose from anything other than a potential 

collision between a motorcycle and the 

tractor trailer that the claimant was driving 

for his employer. 

The commission also concluded "that the claimant was not the 

aggressor and therefore not precluded from receiving compensation 

benefits . . . . Mr. Pettit precipitated the events that 

culminated in the actual injury by stopping and approaching the 

claimant in a very angry manner." 

 I. 

 "To qualify for workers' compensation benefits, an 

employee's injuries must result from an event 'rising out of' and 

'in the course of' the employment." Pinkerton's, Inc. v. Helmes, 

242 Va. 378, 380, 410 S.E.2d 646, 647 (1991); see Code 

§ 65.2-101. Employer does not dispute that claimant suffered an 

injury by accident occurring "in the course of" employment, but 

asserts that claimant failed to prove that such injury "arose out 
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of" employment. It is well established that "[w]hether an 

accident arises out of employment is a mixed question of law and 

fact and is . . . reviewable upon appeal." Mullins v. 

Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611 

(1990) (citation omitted). 

 In determining if an accident arises out of the employment, 

Virginia applies 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 (1994) (citations omitted); see, e.g., 

Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 

S.E.2d 377, 379 (1989); Park Oil Co., Inc. v. Parham, 1 Va. App. 

166, 169, 336 S.E.2d 531, 533 (1985). "Consequently, an accident 

arises out of the employment when it is apparent to a rational 

mind, under all attending circumstances, that a causal connection 

exists between the conditions under which the work is required to 

be performed and the resulting injury." Lipsey, 248 Va. at 61, 

445 S.E.2d at 107 (citations omitted); see, e.g., R & T 

Investments, Ltd. v. Johns, 228 Va. 249, 252, 321 S.E.2d 287, 289 

(1984); Marketing Profiles, Inc. v. Hill, 17 Va. App. 431, 434, 

437 S.E.2d 727, 729 (1993). 

 Accordingly, to be entitled to an award arising from an 

assault, a claimant must establish "that the assault was directed 

against him as an employee, or because of his employment." 

Continental Life Ins. Co. v. Gough, 161 Va. 755, 760, 172 S.E. 

264, 266 (1934) (citations omitted); see Reamer v. Nat'l Serv. 
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Indus., 237 Va. 466, 470, 377 S.E.2d 627, 629 (1989); Park Oil 

Co., 1 Va. App. at 170, 336 S.E.2d at 533-34. "'[A] showing that 

the probability of assault was augmented . . . because of the 

peculiar character of the claimant's job'" supplies the requisite 

causal connection. R & T Investments, Ltd., 228 Va. at 253, 321 

S.E.2d at 289 (citation omitted); Roberson v. Whetsell, 21 Va. 

App. 268, 271, 463 S.E.2d 681, 683 (1995) (citation omitted); see

Reamer, 237 Va. at 470, 377 S.E.2d at 629 ("A physical assault 

may constitute an 'accident' . . . when it appears that it was a 

result of an actual risk arising out of employment."). 

 Here, Pettit's furious attack on claimant was triggered by 

claimant's "need to occupy part of two lanes to negotiate a turn 

in a tractor trailer and the difficulty in seeing a small object 

such as a motorcycle on the right side," impersonal circumstances 

directly attributable to the duties of his employment and clearly 

satisfying the "arising out of" prong of compensability. 

Employer's reliance on Hill City and Metcalf v. A.M. Exp. Moving 

Systems, Inc., 230 Va. 464, 339 S.E.2d 177 (1986), is misplaced. 

 In contrast to the instant circumstances, claimants in both Hill 

City and Metcalf failed to establish the requisite nexus between 

the risks of employment and the assaults there in issue. 

 II. 

 Employer next contends that claimant is barred from recovery 

because his seat belt was unfastened at the time of the injury in 

violation of employer's safety rules. Code § 65.2-306 provides, 

in relevant part: 
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 A. No compensation shall be awarded . . . 

for an injury . . . caused by: 

 * * * * * * * 

 (5) The employee's willful breach of any 

reasonable rule or regulation adopted by the 

employer and brought, prior to the accident, 

to the knowledge of the employee; 

 * * * * * * * 

 B. The person or entity asserting any of the 

defenses in this section shall have the 

burden of proof with respect thereto. 

"As specified in Code § 65.2-306(B), employer ha[s] the burden to 

prove that claimant's conduct, which caused his injury, was in 

'willful' disregard of a reasonable rule established by employer 

. . . ." Brockway v. Easter, 20 Va. App. 268, 271, 456 S.E.2d 

159, 161 (1995) (emphasis added). 

 Whether the rule is reasonable and applies to 

the situation from which the injury results, 

and whether the claimant knowingly violated 

it, is a mixed question of law and fact to be 

decided by the commission and reviewable by 

this Court. But the questions of whether an 

employee is guilty of willful misconduct and 

whether such misconduct is a proximate cause 

of the employee's accident are issues of 

fact. 

Brockway, 20 Va. App. at 271-72, 456 S.E.2d at 161 (citation 

omitted). Upon review of the record, the commission found that 

claimant willfully violated employer's safety rule, but, 

nevertheless, allowed recovery because employer failed to prove 

that the violation caused claimant's injury. We agree. 

 As the commission noted, "seat belts are designed to lessen 

or avoid injuries that occur during the operation of a motor 
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vehicle." Claimant's injuries arose from a deliberate attack on 

his person which occurred "after [he] was out of the truck's 

cab," circumstances totally unrelated to those safety 

considerations which underpinned employer's seat belt rule. 

 Accordingly, the commission correctly found that claimant's 

injury arose from his employment and the attendant award was not 

barred by willful misconduct. 

 Affirmed.