dissenting.
I respectfully disagree with the holding of the majority that extends, without legislative authorization, the presumption applicable in unexplained death cases to non-death cases where the nature of the injuries renders the employee neurologically disabled and unable to recall the details of the accident. I further disagree with the majority and agree with the finding of the Industrial Commission that Helmes failed to prove that the accident arose out of her employment because the evidence fails to establish “the critical link between the conditions of the workplace and the injury.”
*205In 1938 the Supreme Court adopted the unexplained death presumption:
Where an employee is found dead as the result of an accident at his place of work or near by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master’s business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident, and that it arose out of and in the course of his employment.
Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504, 504 (1938). During the ensuing fifty years, the Supreme Court has not applied the unexplained death presumption to non-death cases in the absence of specific legislation creating such a presumption. See Code § 65.1-47.1 (presumption as to death or disability from respiratory disease, hypertension or heart disease). In fact, the Supreme Court has refused to expand the presumption to include non-death cases when confronted with the occasion to do so. See Metcalf v. A.M. Express Moving Systems, Inc., 230 Va. 464, 468-69, 339 S.E.2d 177, 180 (1986).
In Metcalf, an assault case, the Supreme Court refused to decide whether it would apply the presumption to any non-death cases. The Court held that the presumption did not apply in any event because for it to be available “there must be an absence of contrary or conflicting evidence . . . and the circumstances which form the basis of the presumption must be of sufficient strength from which the only rational inference to be drawn is that death arose out of and in the course of the employment.” Id. at 469, 339 S.E.2d at 180.
In reaching its decision, the majority also does not accept the findings of fact of the Industrial Commission, as we are required to do. Code § 65.1-98. The commission found that the road was not dangerous and that the evidence was insufficient to establish a cause for the car accident. The commission further found that no probable cause was established to account for the sudden reaction by the driver; there was no evidence that the car had mechanical deficiencies, although no investigation of its condition was conducted because the car was destroyed following the accident; there *206was no evidence to suggest the existence of an employment-caused hazard m the roadway; and there was no evidence that animals which populated the area created an emergency or that the animals were so numerous that they constituted a special risk of the employment. Based upon these findings, the commission, citing County of Chesterfield v. Johnson, 237 Va. 180, 376 S.E.2d 73 (1989), denied compensation because the evidence failed to establish “the critical link between the conditions of the workplace and the injury.” Id. at 186, 376 S.E.2d at 76.
In United Parcel Service v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985), the Supreme Court said that “[a]n accident arises out of the employment when there is a causal connection between the claimant’s injury and the conditions under which the employer requires the work to be performed.” Id. at 258, 336 S.E.2d at 893. The Court further said that the “arising out of’ test excluded “an injury which comes from a hazard to which the employee would have been equally exposed apart from the employment. The causative danger must be peculiar to the work, incidental to the character of the business, and not independent of the master-servant relationship.” Id. at 258-59, 336 S.E.2d at 893. In Johnson, the Supreme Court said that “[i]n Virginia, we apply the ‘actual risk’ test to determine whether workplace injuries are compensable. . . . We do not apply the positional risk test used in other jurisdictions where simply being injured at work is sufficient to establish compensability.” 237 Va. at 185, 376 S.E.2d at 75-76 (citations omitted).
Upon the facts of this case, I find credible evidence in the record to support the findings of the Industrial Commission and none to support the findings of the majority. Although the evidence establishes that deer were seen occasionally on the roadway, as they are in all parts of Virginia, it is pure surmise and speculation to find that they caused this accident. The majority further found that the presence of wild animals on the roadway represented a hazardous condition of employment to which Helmes was exposed by virtue of her employment. The majority has decided “that the only rational inference to be drawn from the evidence is that the accident arose out of Helmes’ employment.” This factual determination is contrary to the findings of the commission. The commission specifically found that the evidence did not establish any link between the conditions of the workplace and the injury.
*207In summary, I would not extend the unexplained death presumption to non-death cases. I would find that the claimant did not prove by a preponderance of the evidence that there was a causal connection between her injury and the conditions under which the employer required her work to be performed. For these reasons, I would affirm the decision of the Industrial Commission.