COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

JOHN M. HACKETT 

v. Record No. 0666-95-2 MEMORANDUM OPINION*

 PER CURIAM 

ACE ELECTRIC COMPANY OCTOBER 17, 1995 

AND 

FEDERATED MUTUAL INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Robert L. Flax; Flax, Embrey & Stout, on brief), 

 for appellant. 

 (Robert M. McAdam; M. Scott Fell; Wooten & Hart, P.C., 

 on brief), for appellees. 

 The sole issue on this appeal is whether the Workers' 

Compensation Commission (commission) erred in finding that John 

M. Hackett (claimant) failed to prove that he sustained an injury 

by accident arising out of his employment on October 13, 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. 

 On appellate review, we construe the evidence in the light 

most favorable to the party prevailing below. R.G. Moore Bldg. 

Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 

(1990). To recover benefits, claimant must establish that he 

suffered an injury by accident "arising out of and in the course 

of his employment," Code § 65.2-101, and "that the conditions of 

 

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

designated for publication. 
 2 

the workplace or some significant work-related exertion caused 

the injury." Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 

482, 484, 382 S.E.2d 305, 306 (1989). "The phrase arising 'out 

of' refers to the origin or cause of the injury." County of 

Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 

(1989). "Whether an injury arises out of the employment is a 

mixed finding of law and fact and is reviewable by the appellate 

court." Plumb Rite, 8 Va. App. at 483, 382 S.E.2d at 305. 

However, unless we conclude that claimant proved, as a matter of 

law, that his employment caused his injury, the commission's 

finding is binding and conclusive on appeal. Tomko v. Michael's 

Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970). 

 The commission ruled that claimant's knee injury did not 

arise out of a risk or hazard of his employment. In so ruling, 

the commission stated: 

[T]he claimant's work activity did not 

contribute in any significant way to the 

injury. He was not required to squat for a 

prolonged period of time. He was not working 

in an awkward position, and there was no 

significant exertion involved. The tools he 

was carrying did not affect his balance. 

 The evidence showed that claimant did not engage in any 

significant exertion, his action of squatting to measure the 

conduit did not involve an awkward position, nor did any 

condition peculiar to his workplace cause his injury. Although 

claimant was performing a work-related activity when the injury 

occurred, no condition of the workplace or additional exertion 
 3 

necessitated by work caused the injury. We are, therefore, 

unable to find that claimant proved as a matter of law that his 

injury arose out of his employment. 

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

 Affirmed.