COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

CHARLES ALAN STATON 

v. Record No. 0338-96-3 MEMORANDUM OPINION*

 PER CURIAM 

THOMAS E. CONNER T/A AUGUST 6, 1996 

 TONY E. CONNER ROOFING & GUTTERING 

 AND UNINSURED EMPLOYER'S FUND 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (John P. Vita, on brief), for appellant. 

 (James S. Gilmore, III, Attorney General; 

Robert L. Walker, Assistant Attorney General; 

John J. Beall, Jr., Assistant Attorney 

General, on brief), for appellee Uninsured 

Employer's Fund. 

 No brief for appellee Thomas E. Conner t/a 

Tony E. Conner Roofing & Guttering. 

 Charles Alan Staton ("claimant") contends that the Workers' 

Compensation Commission ("commission") erred in finding that (1) 

he was not working as an employee of Thomas E. Conner t/a Tony E. 

Conner Roofing & Guttering ("Conner Roofing") when he sustained 

his August 13, 1993 injury by accident; and (2) his participation 

on a softball team sponsored by Conner Roofing was not so closely 

tied to his employment as to require a finding that his August 

13, 1993 injury by accident arose out of and in the course of his 

employment. Upon reviewing the record and the briefs of the 

parties, we conclude that this appeal is without merit. 

 

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

designated for publication. 
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Accordingly, we summarily affirm the commission's decision. Rule 

5A:27. 

 I. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

Claimant bore the burden of proving that an employer/employee 

relationship existed on August 13, 1993 at the time of his 

industrial accident. Craddock Moving & Storage Co. v. Settles, 

16 Va. App. 1, 3, 427 S.E.2d 428, 430 (1993), aff'd, 247 Va. 165, 

440 S.E.2d 613 (1994). Unless we can say as a matter of law that 

claimant's evidence sustained his burden of proof, the 

commission's findings are binding and conclusive upon us. Tomko 

v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 

833 (1970). 

 "'[W]hen services or labor are rendered voluntarily without 

a promise of compensation or remuneration of any kind, express or 

implied, then the one providing the services or labor has 

supplied them gratuitously and is not covered by the Act.'" 

Jackson v. Ratcliff Concrete Co., 8 Va. App. 592, 594, 382 S.E.2d 

494, 495 (1989) (quoting Charlottesville Music Ctr., Inc. v. 

McCray, 215 Va. 31, 35, 205 S.E.2d 674, 678 (1974)). 

 The commission ruled that claimant failed to prove that an 

employer/employee relationship existed between him and Conner 

Roofing at the time of his injury by accident. In so ruling, the 
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commission found that claimant was not Conner Roofing's employee, 

but rather, he was "a volunteer working in a joint enterprise 

with the other members of the softball team" when his industrial 

accident occurred. 

 This finding is supported by the testimony of claimant, 

Miller, Montgomery, Cooper, Clark, and Conner. Their testimony 

established that Conner did not pay any of the workers, including 

claimant, for their time spent working on August 13, 1993 on the 

Sorrells' roofing job. The record supports the commission's 

finding that the claimant and the other workers performed the 

Sorrells' job as a fund-raising project to benefit the softball 

team, and the workers used the money earned from the job to pay 

softball team expenses. 

 The record supports the commission's finding that claimant 

voluntarily rendered his services to perform the Sorrells' 

roofing job without receiving compensation or wages from Conner 

Roofing. Accordingly, the commission did not err in finding that 

claimant was a volunteer and was not Conner Roofing's employee at 

the time of his August 13, 1993 injury by accident, which 

occurred while he worked on the Sorrells' job. 

 II. 

 A finding by the commission that an injury 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). 
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"We [have held] that an injury sustained as a result of 

recreational activity arises out of employment only when the 

activity is an accepted and normal activity within the 

employment." Mullins v. Westmoreland Coal Co., 10 Va. App. 304, 

307, 391 S.E.2d 609, 611 (1990). 

 The dispositive question is whether the . . . 

recreational function is so closely 

associated with the employment to be 

considered an incident of it. Among the 

other factors which bear upon that 

determination . . . are the degree to which 

the employer derives a benefit from the 

activity, the degree of sponsorship and 

participation by the employer, whether the 

activity occurs on premises associated with 

the employment, when the activity occurs in 

relation to work, and the frequency or period 

over which the activity has been conducted. 

Kim v. Sportswear, 10 Va. App. 460, 465-66, 393 S.E.2d 418, 421 

(1990). 

 Conner Roofing's sole involvement with the softball team was 

to pay entry fees. No evidence showed that Conner Roofing 

required or actively encouraged its employees to play on the 

softball team or to work on softball team jobs. In fact, some of 

the players on the team were not employed by Conner Roofing. No 

evidence showed that pay, advancement, or benefits were in any 

way connected to team membership. In addition, no evidence 

indicated that Conner Roofing derived any substantial benefit 

from the softball team, other than possible publicity caused by 

having the company name on the player's hats. The team was 

organized by and consisted of voluntarily participating employees 
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and non-employees, and it was not a part of Conner Roofing's 

business activities. Conner Roofing limited its role to 

financial sponsorship of entry fees. 

 Based upon this record, we conclude that the commission did 

not err in finding that claimant's evidence did not sustain his 

burden of proving that his injury arose out of and in the course 

of his employment. 

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

 Affirmed.