COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Felton and Senior Judge Willis

JASON SHORTT MEMORANDUM OPINION * v. Record No. 1973-03-2 PER CURIAM NOVEMBER 18, 2003 LDC MASONRY, INC. AND ERIE INSUR ANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION (William F. Karn; Butle r Williams & Skilling, P.C., on brief), for appellant. (Daniel E. Lynch; John T. Cornett, Jr.; Williams & Lynch, on brief), for appellees.
Jason Shortt (claimant) contends the Workers’ Compensation Commission erred in finding he failed to prove his February 14, 2002 injury by accident occurred in the course of his employment. Upon reviewing the re cord and the parties’ briefs, we conclude that this appeal is without merit. Accordingly, we summarily a ffirm the commission’s decision. Rule 5A:27. On appeal, we view the evidence in the light most favorable to LDC Masonry, Inc. (employer), the party prevailing before the commission, together with all reasonable inferences that may be drawn. See Great Eastern Resort Corp. v. Gordon , 31 Va. App. 608, 610, 525 S.E.2d 55, 56 (2000). In December 2001, claimant began working for employer as a brick mason on a large commercial project for the Henrico Water Treatm ent Plant. David Sharp, who drove a forklift for employer, provided claimant with a ride to and from work each da y. Sharp was required to

* Pursuant to Code § 17.1- 413, this opinion is not designated for publication.- 2 - be at work at 6:30 a.m. Cl aimant’s regular work hours were from 7:00 a.m. until 3:30 p.m. However, if the temperature was less than thirty -seven degrees, the brick masons could not start laying brick until it got warmer. Laborers began work first thing in the morning regardless of the outside temperature. On cold days, when claimant got to work early with Sharp, he “s[at] in the car and wait[ed] a half hour or 45 minutes.” On February 14, 2002, claimant arrived at work with Shar p at 6:45 a.m. The outside temperature at that time was nineteen degrees . At the end of the prior workday, claimant’s supervisor, Frank Coluccio, had to ld claimant and the other bric k masons that they were not going to start laying brick until 9:00 a.m. on February 14, 2002, because the temperature was going to be too cold. Claimant and Sharp exit ed Sharp’s car, and Sh arp began to warm up a forklift. Claimant stood in front of the car. It was cold and windy. Claimant saw Frankie Dodson, a laborer, on a scaffold in fr ont of him, struggling to transf er bricks from one level to a higher level. Claimant hollered to Dodson a nd asked if he needed help. Dodson responded, “yes,” so, claimant went to help him. Claimant and Dodson stocked one level with bricks from the level below, and claimant was on the way up to the next leve l when the scaffold railing came off in his hand and he fell and broke his left ankle and right f oot. Claimant’s accident occurr ed around 8:00 a.m., after he had been on the scaffolding for approximately forty-five minutes. Claimant admitted there were more than ten laborers on the job site that mo rning and that employer did not hire him to help laborers. He also stated that “it [was] unusual for a spoiled brick layer to he lp out a laborer . . . .” Claimant admitted another laborer could have helped Dodson. Claimantassumed he was going to get paid for the time he spent helping Dodson, because while he was working on the scaffolding, Coluccio and a man named “Larry” wa lked by and looked at claimant, but did not say anything. Claimant testified that Coluccio passed by him two to three times.- 3 - Claimant had not signed in to work before his accident. He assumed he would have signed in around 9:00 a.m. Empl oyer did not pay claimant fo r the work he performed on February 14, 2002. Claimant assumed that “bei ng up there on the scaffolding and being seen, that [he] would have been paid for that subseque nt to [his] fall.” Claimant testified that no one associated with employer ever directly told him not to help a laborer. He contended that he had performed labor tasks on other mornings, as instructed by employer, while he was waiting for laborers to make the mortar and that he was pa id for that work. Those tasks involved making saw cuts and setting up scaffolding. He admitted that those occasions did not occur before they could begin laying bricks because it was too col d, but rather they happened because the laborers did not have the mortar ready at the time the br ick masons were supposed to start work at 7:00 a.m. Employer paid claimant twenty dollars per hour, while Dodson, a skilled laborer, was paid between eleven and tw elve dollars per hour. Coluccio, employer’s superintendent, testified that the brick masons were not to report for work until 9:00 a.m. on February 14, 2002, due to the expected cold temperature. Coluccio testified that he always starte d and stopped the work of the bric k masons. Coluccio stated that the brick masons were not expected to be work ing in any capacity before “they get the green light from [him]” to start working. Coluccio stat ed that claimant was not “on the clock” nor was he being paid for his time when he fell off the scaffolding at 8:00 a.m. on February 14, 2002. Coluccio testified that the brick masons were notexpected to offer any assistance to laborers on the job. He denied asking claimant to do any task that would be considered a laborer’s task. He explained that the task of cutting bricks, which could be done by laborers or brick masons, was left to the discretion of the masons. They could perform that task if they needed to do so in order to continue working, rather than wait for a la borer. Coluccio denied seeing claimant on the scaffolding at any time on the morning of Februa ry 14, 2002 before his acci dent, but agreed that- 4 - he may have walked by. Claimant never aske d Coluccio if he could start work early that morning to help out Dodson. The work that claimant was doing whenhe fell was typically performed by a laborer, not a brick mason. Colucci o estimated that there could have been up to twenty-five laborers on the job si te that morning. Coluccio denied that the work claimant was performing when he was injured was beneficial to employer. He described Dodson as a “qualified man” who “could have done the j ob and had the time to get the job done.” “To qualify for workers’ compensation benefits , an employee’s injuries must result from an event ‘arising out of’ and ‘in the course of’ the employment.” Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 180, 510 S.E.2d 740, 742 (1999) (quoting Pinkerton’s, Inc. v. Helmes , 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991)). “Whether an injury arises out of and in the course of employment involves a mixed quest ion of law and fact, which we review de novo on appeal.” Blaustein v. Mitre Corp., 36 Va . App. 344, 348, 550 S.E.2d 336, 338 (2001). However, the findings of fact made by the commission are binding upon us when supported by credible evidence. See Ablola v. Holland Rd. Auto Center, Ltd. , 11 Va. App. 181, 183, 397 S.E.2d 541, 542 (1990). “An injury ‘occurs in the “course of employ ment” when it takes place within the period of employment, at a place where the employee may be reasonably expected to be, and while he is reasonably fulfilling the duties of his employment or is doing something which is reasonably incidental thereto.’” Lucas v. Lucas, 212 Va. 561, 563, 186 S.E.2d 63, 64 (1972) (citation omitted). “If the voluntary act of an employee which causes an injury is sufficiently related to what the employee is required to do in fulfilling his contract of service, or is one in which someone in a like capacity may or must do in the interest of his employer’s business, the fact that the empl oyee was not actually required to perform the act will not impair hi s right to recover compensation.” Id. at 564, 186 S.E.2d at 65 (citation omitted).- 5 - Based upon this record, the commission ruled th at claimant failed to prove his injuries occurred in the course of his employment. In so ruling, the commission found as follows: The claimant testified that th e employer did not direct him to help the laborer prior to his sc heduled start time of 9:00 a.m. on the morning of February 14, 2002. Th e claimant also testified that he was hired as a brick mason, not as a laborer. Mr. Coluccio testified that Frankie Dodson was a qualified laborer and that there were approximately twenty-five laborers working that morning. The evidence establishes that the claimant, a skilled brick mason, was not required to move bricks up on the scaffold as part of his job duties, nor was he required to work before 9:00 a.m. on that particular day. We conclude th at the claimant was not where he was reasonably expected to be, and was not reasonably fulfilling the duties of his employment at the time of the accident. Credible evidence supports the commissi on’s conclusion that employer could not reasonably expect claimant to be working before 9:00 a.m. on Fe bruary 14, 2002, nor could employer reasonably expect claimant to be assi sting a laborer to move bricks up on to the scaffolding before work hours that day. Clai mant arrived at work early that day as an accommodation to himself, not employer, because Sharp provided claimant a ride to work. Claimant, an hourly-paid employee, had not signed in to work before his accident and was not being paid by employer at that time. On Febr uary 13, 2002, claimant’s supervisor told him that he would not begin work until 9: 00 a.m. the next day due to the expected cold temperatures, which would prevent laborers from making mortar before that time. Claimant admitted that brick masons did not normally assist laborers and that he was not hired to help laborers. Employer did not authorize or instruct claimant to assist the laborers in moving bricks up on to scaffolding before 9:00 a.m. on February 14, 2002. Based upon this record, employer could not re asonably expect claimant to have been working on scaffolding assisti ng a laborer before 9:00 a.m. on February 14, 2002, and claimant was not reasonably fulfilling the duties of his employment or doing something reasonably incidental thereto when he incurred his injuries . Employer did not authorize or instruct claimant- 6 - to assist Dodson. Moreover, clai mant’s voluntary act was not suffici ently related to his duties as a brick mason, or one that a brick mason might or must do in the interest of employer’s business. Credible evidence proved that there were many la borers on the job site w ho could have assisted Dodson. For these reasons, we affirm the commission’s decision that claimant’s injuries did not occur in the course of his employment. Affirmed.