COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Kelsey and Senior Judge Hodges
JULIA DIANNE KITZMILLER
MEMORANDUM OPINION*
v. Record No. 1506-02-4 PER CURIAM
NOVEMBER 19, 2002
PIZZA HUT AND
AIU INSURANCE COMPANY/
AMERICAN INT'L ADJUSTMENT CO.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael F. Heaney; LegalAssist P.L.L.C., on
brief), for appellant.
(S. Vernon Priddy III; Sands Anderson Marks &
Miller, on brief), for appellees.
Julia Dianne Kitzmiller (claimant) contends the Workers'
Compensation Commission erred in finding that she failed to
prove she sustained an injury by accident arising out of her
employment on June 21, 2001. Upon reviewing the record and the
parties' briefs, we conclude that this appeal is without merit.
Accordingly, we summarily affirm the commission's decision.
Rule 5A:27.
"The commission's decision that an accident arises out of
the employment involves a mixed question of law and fact and is
thus reviewable on appeal." Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
However, unless we can say as a matter of law that claimant's
evidence sustained her burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
"The claimant [has] the burden of establishing, by a
preponderance of the evidence, and not merely by conjecture or
speculation, that she suffered an injury by accident which arose
out of . . . the employment." Central State Hosp. v. Wiggers,
230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). The claimant
"must show that a condition of the workplace either caused or
contributed to her fall." Shell, 20 Va. App. at 202, 455 S.E.2d
at 763. This analysis "excludes an injury which cannot fairly
be traced to the employment as a contributing proximate cause
and which comes from a hazard to which the [claimant] would have
been equally exposed apart from the employment." R & T
Investments, Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287,
289 (1984).
Claimant, who delivers pizzas for employer, testified that
on June 21, 2001, she delivered a pizza to a house. As she was
leaving the house after she had delivered the pizza, she walked
down a stairway, stepped onto the grass and slipped and fell.
She testified that the slip occurred suddenly, but she could not
identify any hazards present in the area where she fell. She
admitted that the area was well lit, the grass was not wet, and
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that there was nothing present to cause her to trip. She stated
that she "just slipped and fell. That's it."
In ruling that claimant failed to prove that her accident
arose out of her employment, the commission found as follows:
[T]he evidence shows that the claimant was
simply walking on grass when she slipped and
fell. The claimant denied the presence of
any hazards or any condition peculiar to her
work that caused her to fall and injure
herself. Because no evidence establishes a
causal connection between the conditions of
the claimant's employment and her fall, we
find the claimant failed to prove that her
injury arose out of her employment.
Based upon this record, the commission, as fact finder, was
entitled to conclude that claimant's evidence failed to sustain
her burden of proof. No evidence established that any hazard or
condition associated with claimant's workplace either caused or
contributed to her fall. In fact, the evidence showed that
claimant could not attribute her slip and fall to any particular
cause. Accordingly, we cannot find as a matter of law that
claimant proved she sustained an injury by accident arising out
of her employment on June 21, 2001.
For these reasons, we affirm the commission's decision.
Affirmed.
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