join, dissenting.
Because the majority construes the “actual risk test” to support an award of workers’ compensation benefits for all unexplained injuries suffered in the course of employment on a street or highway, we respectfully dissent.
In order to recover, Hill must prove, by a preponderance of the evidence, (1) an injury by accident,1 (2) arising out of and (3) in the course of his employment. Baggett Transp. Co. v. Dillon, 219 Va. 633, 636, 248 S.E.2d 819, 821 (1978); see Code § 65.2-101. Employer’s challenge to the sufficiency of Hill’s evidence to establish his claim presents “a mixed question of law and fact . . . properly reviewable on appeal” to this Court. Sentara Leigh Hosp. v. Nichols, 13 Va. App. 630, 633, 414 S.E.2d 426, 428 (1992) (en banc). Thus, “we must determine whether the Commission’s findings from the facts presented are sufficient in law to justify the award of compensation.” Baggett, 219 Va. at 637, 248 S.E.2d at 822.
The “arising out of” proof, indispensable to Hill’s recovery, must establish “a causal connection between the conditions under which the work is required to be performed and the resulting injury” that is “apparent to the rational mind upon consideration of all the circumstances.” Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938) (quoting In re McNicol, 215 Mass. 497, 499, 102 N.E. 697, 697 (1913)); see also United Parcel Serv. v. Fetterman, 230 Va. 257, 258-59, 336 S.E.2d 892, 893 (1985). The injury must have “followed as a natural incident of the work” and resulted from an “exposure occasioned by the nature of the employment.” United Parcel, 230 Va. at 258, 336 S.E.2d at 893. The evidence must show “something more” than the occurrence of an “accident . . . during the period of the employment,” Norfolk & Washington Steamboat Co. v. Holladay, 174 Va. 152, 158, 5 S.E.2d 486, 489 (1939), and the “peculiar circumstances of each case are crucial,” especially when, “as here, the injury *437. . . occurs at a place other than the employer’s premises.” Sentara, 13 Va. App. at 633, 414 S.E.2d at 428.
However, “presence on the street or highway” necessitated by employment poses a risk to the employee which generally has not required evidence of an “increased hazard peculiar to the work and not common to the public.” Immer & Co. v. Brosnahan, 207 Va. 720, 725, 152 S.E.2d 254, 257 (1967). Recognizing the inherent dangers of the highway to anyone whose “work necessitates” such exposure, an “actual risk test” has developed in “street cases.” Id. at 725-26, 152 S.E.2d at 257-58; see also Norfolk & Washington Steamboat Co., 174 Va. at 159, 5 S.E.2d at 489; Cohen v. Cohen’s Dep’t Store, 171 Va. 106, 110, 198 S.E. 476, 477-78 (1938); Railway Express Agency v. Lewis, 156 Va. 800, 809-10, 159 S.E. 188, 191 (1931); Dreyfus & Co. v. Meade, 142 Va. 567, 574, 129 S.E. 336, 338 (1925). Injury under these circumstances is deemed to arise “in the course of the employment,” provided (1) the employee’s “duties . . . require ... [a] presence upon the public streets,” and (2) the “injury arose from an actual risk of that presence upon the streets.” Sentara, 13 Va. App. at 634, 414 S.E.2d at 428. We find the second element of the test dispositive of this appeal.
While the “actual risk test” assists Hill in proving the requisite nexus between employment and the myriad threats of the highway, his evidence must, nevertheless, relate his injury to a street risk which is compensable, thereby eliminating the “possibility” of causes “totally unrelated” to the street risks of employment. Park Oil Co. v. Parham, 1 Va. App. 166, 170, 336 S.E.2d 531, 534 (1985); see Hill City Trucking, Inc. v. Christian, 238 Va. 735, 739, 385 S.E.2d 377, 379-80 (1989); Baggett, 219 Va. at 643-44, 248 S.E.2d at 825. The necessity of such proof distinguishes the “actual risk” concept from the “positional risk doctrine,” long disfavored in Virginia. Baggett, 219 Va. at 640, 248 S.E.2d at 823; Hill City Trucking, 238 Va. at 739, 385 S.E.2d at 379; Dreyfus & Co., 142 Va. at 573-74, 129 S.E. at 337-38.
We do not disagree with the conclusion that Hill adequately established an injury by accident during the course of his employment. However, his evidence fails to “explain the circumstances of the accident” sufficiently to connect the occurrence to a compensable street risk. Pinkerton’s, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, *438648 (1991).2 We indulge no presumption or inference that dispenses with proof that an unexplained highway accident “arose out of” employment. See id. at 381, 410 S.E.2d at 648.3 “The burden of supplying evidence from which the inference can be legitimately drawn that the injury arose out of. . . employment, rests upon the claimant,” and “[a]n award based upon surmise or conjecture will be set aside.” Sullivan v. Suffolk Peanut Co., 171 Va. 439, 443, 199 S.E. 504, 506 (1938); see Memorial Hosp. v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527, 529 (1986). Hill urges us not only to imagine causation but to exclude all noncompensable possibilities from the fantasy.
We are mindful that factual findings of the commission, based on credible evidence, are conclusive and binding upon this Court. Fairfax Hosp. v. DeLaFleur, 221 Va. 406, 410, 270 S.E.2d 720, 722 (1980); Code § 65.2-706 (former Code § 65.1-98). If “reasonable inferences” may be drawn from credible evidence, “they will not be disturbed by this Court on appeal.” Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988). However, before circumstantial evidence “‘may serve as the basis from which further inference of fact may be drawn,’” it first “must establish a fact,” reliance upon which is not to be “extremely attenuated.” Johnson v. Commonwealth, 15 Va. App. 73, 77, 422 S.E.2d 593, 595 (1992) (citations omitted). While the record may establish Hill’s injury in an automobile accident in the course of employment, this evidence does not support factual inferences in explanation of the accident, proof of which is essential to an award.
We recognize that the Act “should be liberally construed to carry out . . . [its] humane and beneficial purposes,”- but the General Assembly has not “authorize[d] the amendment, alteration or extension of its provisions” by either the commission or this Court. Baggett, 219 Va. at 637, 248 S.E.2d at 822. Hill simply failed to prove by a preponderance of the evidence that his injuries arose from employment, and we would, therefore, reverse the decision of the commission.
Hill’s proof of injury by accident is not a substantive issue in this case.
Contrary to the majority opinion, the commission noted that it “did not base [its] decision” in the instant case on Helmes because that case was then “pending before the Supreme Court of Virginia.”
The vehicular accident in Pinkerton's did not occur on a public roadway.