COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Frank and Clements 

BERTHA L. FENNELL, WIDOW OF 

 JAMES MATHEW FENNELL (DECEASED) 

 MEMORANDUM OPINION*

v. Record No. 2711-01-1 PER CURIAM 

 FEBRUARY 12, 2002 

TARMAC VIRGINIA AND 

 INSURANCE COMPANY OF THE 

 STATE OF PENNSYLVANIA 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Thomas F. Hennessy; Thomas F. Hennessy, 

P.C., on brief), for appellant. 

 (Ralph L. Whitt, Jr.; Michael P. Del Bueno; 

Whitt & Associates, on brief), for appellees. 

 

 Bertha L. Fennell ("claimant"), widow of James Mathew 

Fennell ("the decedent"), contends the Workers' Compensation 

Commission erred in finding that (1) she failed to prove that 

the decedent's death was causally related to a work-related 

accident occurring on July 21, 1998; (2) the applicable statute 

of limitations accrued as of July 21, 1998 and, therefore, the 

claim was time-barred; and (3) the death presumption did not 

apply to this case. Upon reviewing the record and the parties' 

briefs, we conclude that this appeal is without merit. 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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Accordingly, we summarily affirm the commission's decision. 

Rule 5A:27. 

Background

 On October 30, 1998, Frank Schmitz, the decedent's 

supervisor, found the decedent, a truck mechanic, dead at his 

workplace. On the morning of October 30, 1998, Schmitz received 

a report that the decedent had not reported for work although 

his pickup truck had been seen. Upon investigating further, 

Schmitz found the decedent's body in a chair in the office area 

with a pool of blood around the base of the chair. Schmitz saw 

a spot of blood that had been wiped up at the entrance to the 

tool room, but there was no trail of blood, no evidence of an 

accident, and no indication of foul play. The decedent was 

holding a piece of gauze in his right hand. He was wearing a 

moccasin on his right foot and a work boot on his left foot. 

These facts indicated to Schmitz that the decedent had been 

getting ready to leave work the evening of October 29, 1998, 

because he always changed his shoes before leaving. 

 Schmitz knew that claimant had sustained an injury at work 

on July 21, 1998, but he did not know of any ongoing problems, 

medical treatment, or lost time from work. 

 A July 21, 1998 report from Maryview Hospital indicated 

that the decedent had a history of varicose veins and that he 

struck his left leg with a socket wrench, causing immediate, 

profuse bleeding. An examination revealed a four-centimeter 
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puncture wound, which was sutured. On August 7, 1998, the 

sutures were removed. The record contained no further 

indication of medical treatment. 

 The autopsy report listed the decedent's cause of death as 

"Exsanguination due to erosion of an arteriovenous malformation 

of the left lateral leg." The medical examiner observed 

arteriovenous malformations extending along the left lateral 

calf for a length of five inches and at the medial left knee. 

The death certificate listed the same cause of death as the 

autopsy report. 

I. and III. 

 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. Pinkerton's, Inc. v. Helmes, 242 

Va. 378, 380, 410 S.E.2d 646, 647 (1991). "Whether an injury 

arises out of the employment is a mixed question of law and fact 

and is reviewable by the appellate court." Plumb Rite Plumbing

Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 

(1989). 

 The claimant argues she proved that the decedent's death 

was caused by his July 21, 1998 accident, and in the 

alternative, that the commission should have accorded her a 

presumption that the decedent's death arose out of his 

employment based on the death presumption. 
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 In Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E. 

504 (1938), the Supreme Court set forth the requirements for 

applying the death presumption as follows: 

 Where an employee is found dead as a 

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 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. 

Id. at 444, 199 S.E. at 506. 

 The commission found that the evidence failed to prove that 

the decedent's death resulted from an accident. In addition, 

the commission found that the death presumption did not apply in 

this case. 

 Here, unlike Sullivan, no evidence established that the 

decedent was found dead as the result of an accident at his 

place of work or nearby at a place where his duties may have 

called him. The fact that the decedent was found dead in his 

chair at work did not prove that his death occurred as the 

result of an accident. The only evidence concerning the cause 

of the decedent's death was the autopsy report and death 

certificate, which showed that his death resulted from 

"Exsanguination due to erosion of an arteriovenous malformation 

of the left lateral leg." 
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 Based upon this record, the commission did not err in 

finding that the death presumption did not apply and that 

claimant failed to prove that the decedent's death resulted from 

an injury by accident arising out of his employment. 

II. 

 Because our rulings on the first and third questions 

presented by claimant dispose of this appeal, we need not 

address the statute of limitations issue. 

 For the reasons stated, we affirm the commission's 

decision. 

Affirmed.