COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Bumgardner and
Senior Judge Hodges
BARBARA W. BARCLIFT
MEMORANDUM OPINION*
v. Record No. 0374-01-1 PER CURIAM
JULY 17, 2001
KEMPSVILLE PRESBYTERIAN CHURCH AND
CHURCH MUTUAL INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Gregory E. Camden; Montagna, Klein & Camden,
L.L.P., on brief), for appellant.
(S. Vernon Priddy III; P. Dawn Bishop; Sands,
Anderson, Marks & Miller, on brief), for
appellees.
Barbara W. Barclift (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 March 25, 1999. 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. See 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.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995).
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 testified that she slipped on the carpeting at
work and fell. She stated that she "knew it had something to do
with the carpet, because you just don't fall." She claimed the
carpet was "in very bad shape" and that it had "ripples" in it.
However, she did not testify that her fall was caused by one of
the ripples. In fact, she admitted that she did not fall in an
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area where there were ripples, and she stated "that's not what
I'm claiming that I fell on." She testified that "in [her]
heart" she always believed that the carpet was the cause of her
fall, but that she could not prove it.
In her recorded statement to employer's insurer on March
29, 1999, she stated that she "had walked in [her] secretary's
office and turned to go back and when [she] did, [her] feet slid
out from under [her] and [she] pitched forward." In her second
recorded statement to employer's insurer on June 18, 1999,
claimant said as follows:
I have worked in that area for over five
years and had not fallen. I honestly don't
know what made me fall. Believe me, I have
racked my brain and tried to figure out
something or to remember something, and the
carpet in the room is not great, but its not
terrible up where I fell . . . . I think it
is just one of those things we're never
going to know what happened.
In ruling that claimant failed to prove that her accident
arose out of her employment, the commission found as follows:
The condition of the carpeting is of no
moment unless the claimant can prove that
the defect caused her to fall. She said
that she "knew [the fall] had to have
something to do with the carpet, because you
don't just fall." However, people can and
do "just fall." This is not a compensable
event under the Act. The case also does not
turn on whether she said she "slipped" on
something or "tripped" over something in the
workplace. Her belief that the carpet was
responsible for her fall is speculative.
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Based upon this record, the commission, as fact finder, was
entitled to conclude that "[s]peculation is insufficient to
carry the claimant's burden of proof. As she cannot say
definitively that she tripped over a defect in the carpeting,
her claim must be and is denied." No evidence established that
any hazard or condition associated with claimant's workplace
either caused or contributed to her fall. Specifically, no
evidence established that a defect in the carpeting caused her
to fall. In addition, no evidence proved that she tripped over
or slipped on something on the carpeting. Accordingly, we
cannot find as a matter of law that claimant proved she
sustained an injury by accident arising out of her employment on
March 25, 1999.
For these reasons, we affirm the commission's decision.
Affirmed.
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