COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Elder and Fitzpatrick 

CHARLES RAY WARLITNER (DECEASED), 

 MARIE W. HALL, and RIVERSIDE 

 HEALTHCARE ASSOCIATION, INC., t/a 

 RIVERSIDE REGIONAL MEDICAL CENTER MEMORANDUM OPINION*

 PER CURIAM 

v. Record No. 2958-96-1 MARCH 25, 1997 

McDONALD'S McCOPCO NO. 05161/ 

 McDONALD'S CORPORATION 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Phillips M. Dowding, on briefs), for 

appellants. 

 (Scott C. Ford; Midkiff & Hiner, on brief), 

for appellee. 

 Charles R. Warlitner, deceased, by and through his sister, 

Marie Hall, and Riverside Healthcare Association, Inc., t/a 

Riverside Regional Medical Center, appeal a decision of the 

Workers' Compensation Commission (commission) denying their 

application alleging a February 23, 1995 injury by accident 

resulting in Warlitner's death. Appellants contend that the 

commission erred in refusing to apply the presumption found in 

Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 

(1958), that the injuries which resulted in Warlitner's death 

arose out of his employment. Finding no error, we affirm the 

commission's decision. 

 On appeal, we view the evidence in the light most favorable 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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to the prevailing party below. R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

 So viewed, the evidence established that on February 23, 

1995, Warlitner worked for McDonald's Corporation (the 

restaurant) as a maintenance worker. On the morning of February 

23, 1995, when Warlitner reported for work, his duties required 

that he clean the restaurant's bathrooms and the cement floor of 

the corral.1 At approximately 8:15 a.m., Warlitner was found 

lying unconscious on his left side on the corral floor with his 

body near an empty soft drink tank. 

 Before discovering that he had been injured, Vangeline 

Mattison, the restaurant's assistant manager, had last seen 

Warlitner outside the restaurant preparing to take a bag of trash 

to the corral. Mattison found the bag of trash by the back door 

to the restaurant. Mattison denied that there was any grease on 

the ground in the corral area where Warlitner was lying. Joann 

Gould, the restaurant's manager, testified that she did not 

observe any grease in the area where Warlitner was found. 

 Mattison testified that Warlitner had missed a day from work 

during the week before his accident. She recalled that Warlitner 

had a cold and was coughing and breathing heavily at work. Lori 

Staples, a manager trainee, recalled that on approximately 

 

 1The "corral" was an area behind the restaurant surrounded 

by a seven-foot high wooden fence where the restaurant stored 

its dumpsters, a large grease can, and empty soft drink 

canisters. One of Warlitner's job duties was to take trash and 

empty soft drink canisters to the corral. 
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February 16, 1995, Warlitner complained of dizziness and had a 

bad cold. Warlitner had a family history of heart attacks and 

aneurysms. 

 Gould, who rode with Warlitner in the ambulance to the 

hospital, stated that Warlitner did not appear to know why he had 

fallen. Warlitner's physician diagnosed Warlitner as suffering 

from a traumatic brain injury with a brain contusion, hemorrhage, 

and a skull fracture. Warlitner remained a patient in Riverside 

Regional Hospital until he died on March 20, 1995. In an autopsy 

report, Dr. Faruk Presswalla reported the cause of Warlitner's 

death as a "[p]ulmonary embolus complicating basal skull fracture 

with cerebral contusion due to a fall." 

 Mattison, Gould, and Marie Hall visited Warlitner during his 

hospitalization. Each of these witnesses stated that although 

Warlitner was conscious and able to communicate at times, he was 

never able to remember how the accident occurred. 

 The commission denied the application, finding that the 

evidence failed to show that a condition of Warlitner's workplace 

caused his injury or that the Alvis presumption applied. 

Therefore, the commission concluded that the evidence failed to 

prove that Warlitner's injuries arose out of his employment. 

 A claimant must prove that an injury arose out of and in the 

course of his employment to qualify for any benefits under the 

Workers' Compensation Act. See Pinkerton's, Inc. v. Helmes, 242 

Va. 378, 380, 410 S.E.2d 646, 647 (1991). "A 'critical link' 
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must exist between the conditions of the workplace and the injury 

in order for the injury to qualify as 'arising out of' the 

employment." Id. In this case, the cause of Warlitner's 

accident is unknown. As the commission noted, appellants could 

not point to any evidence which indicated that Warlitner's fall 

was caused by a risk of his employment. Therefore, only if 

appellants are entitled to a presumption that Warlitner's 

injuries arose out of his employment are they entitled to 

workers' compensation benefits. 

 In Alvis, the Supreme Court held: 

 We have long since adopted the rule to the 

effect that where an employee is found dead

as the result of an accident at his place of 

work or nearby, 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. 

Alvis, 200 Va. at 171-72, 104 S.E.2d at 738 (emphasis added). 

In Pinkerton's, the Supreme Court held that the Alvis presumption 

is limited to death cases, and is not applicable to an 

unexplained accident case. Pinkerton's, 242 Va. at 381, 410 

S.E.2d at 648. 

 We find that the commission correctly refused to apply the 

Alvis presumption. The presumption does not apply to a case such 

as this one, where Warlitner was not found dead at the scene of 

the accident, but rather died approximately one month later. 
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 Because appellants' evidence did not as a matter of law 

sustain their burden of proving that Warlitner's injuries arose 

out of his employment, we affirm the commission's decision. 

 Affirmed.