COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
AUTUMN N. D. PAKRAVAN
MEMORANDUM OPINION*
v. Record No. 1960-00-1 PER CURIAM
JANUARY 16, 2001
PIZZA HUT, INC. AND
ZURICH INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(W. Ware Morrison; W. Ware Morrison, P.C., on
briefs), for appellant.
(Joseph F. Giordano; Dana L. Plunkett;
Semmes, Bowen & Semmes, P.C., on brief), for
appellees.
Autumn N.D. Pakravan (claimant) contends that the Workers'
Compensation Commission erred in finding that she failed to
prove that she sustained an injury by accident arising out of
her employment on June 26, 1998. 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.
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 Hospital 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 on June 26, 1998, while working for
employer as a cook, she was on her way to the kitchen while
carrying an empty pizza pan. At that time, she slipped, "went
back" and hit the back of her head. She did not identify any
substance on the floor or any defect in the floor that might
have caused the fall. She did not know what she hit her head
on. She did not attribute her fall to carrying the pizza pan.
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She could not recall any of the medical treatment she received
after the accident.
James Aydlett, employer's assistant manager, testified in
his deposition that he witnessed claimant's fall. He stated
that claimant was carrying two pizza pans and that her job did
not require that she rush. He stated that claimant was walking
normally at the time and that she looked like she "was losing
her balance and she was reaching behind to grab the trash can to
steady her" when she fell. Aydlett did not see any substance on
the floor where claimant fell.
Claimant's medical records reflect that on July 2, 1998,
she told Dr. Robert Nash that she was carrying a pizza in her
left hand and she slipped on water on the floor. On September
3, 1998, claimant told Dr. Robert Hansen that she slipped on a
wet floor while working at Pizza Hut on June 26, 1998. On
September 4, 1998, Dr. Thomas Pellergrino noted that claimant
had slipped and fallen at work on June 26, 1998, hitting her
head on a counter.
In ruling that claimant failed to prove that she sustained
an injury by accident arising out of her employment on June 26,
1998, the commission found as follows:
[T]he claimant testified that she slipped
and fell. She did not identify the
substance on which she fell. . . . The
claimant produced no evidence that she
slipped on any substance or object on the
ground. On the contrary, the evidence shows
that the claimant does not know what
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happened. . . . Here, the claimant could
not state that she had actually slipped on
any substance. . . . She simply stated that
she slipped and fell. She was carrying an
empty pizza pan but there was no evidence
that the pan caused the claimant to lose her
balance or otherwise contribute to the fall.
There was no testimony that the claimant was
in a hurry, or not performing her assigned
duties. In fact, her assistant manager,
Adylett [sic], testified that her job did
not require her to rush. . . . Adylett
[sic], who witnessed the fall, stated that
the claimant was walking normally and lost
her balance. Adylett [sic] did not observe
any substance on the floor where the
claimant fell.
Based upon the testimony of claimant and Aydlett, the
commission, as fact finder, was entitled to conclude that "the
facts in this case do not indicate that a condition of the floor
caused or contributed to the fall." In light of the testimony
of claimant and Aydlett, we cannot find as a matter of law that
claimant proved that she sustained an injury by accident arising
out of her employment on June 26, 1998.
Claimant argues that the medical histories should have been
used by the commission to find that she proved she sustained an
injury by accident arising out of her employment. We disagree.
[I]n Board of Supervisors of Henrico County
v. Martin, 3 Va. App. 139, 348 S.E.2d 540
(1986), the claimant's hearing testimony
proved that his accident was not
compensable. The commission nonetheless
decided otherwise and relied on the
claimant's medical histories given to his
physician as proof of how the accident
occurred. We held that the commission's
findings violated Massie v. Firmstone, 134
Va. 450, 462, 114 S.E. 652, 656 (1922),
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which stated that a party is bound by his or
her unequivocal testimony at trial.
Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 318, 456
S.E.2d 541, 543 (1995). In this case, claimant's unequivocal
testimony proved that her accident was not compensable.
Accordingly, the commission did not err in refusing to rely upon
the medical histories as proof of how the accident occurred.
See id.
For these reasons, we affirm the commission's decision.
Affirmed.
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