COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Salem, Virginia 

DESHAZO OIL COMPANY, INC. AND 

 FEDERATED MUTUAL INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1989-02-3 JUDGE RUDOLPH BUMGARDNER, III 

 MARCH 4, 2003 

JOHN HENRY DILLON, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Robert M. McAdam (Jones & Glenn, P.L.C., on 

brief), for appellants. 

 John W. Swezey for appellee. 

 Deshazo Oil Company contends the Workers' Compensation 

Commission erred in finding John Henry Dillon, Jr. sustained an 

injury by accident. The employer lists six issues on appeal,1

but they primarily restate the single contention that the 

commission erred in relying solely on hearsay statements to 

 

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

designated for publication. 

1

 The employer states the following questions: 1) whether 

the evidence is sufficient to prove the injury arose out of and 

in the course of the employment; 2) whether the evidence 

supports the finding that the disability was due to an 

aggravation of a pre-existing condition; 3-4) whether the 

commission erred as a matter of law in resorting to hearsay 

statements contained in the medical reports and Claim for 

Benefits to award benefits; 5) whether the commission 

erroneously relied on Pence Nissan Oldsmobile v. Oliver, 20 

Va. App. 314, 456 S.E.2d 541 (1995); and 6) whether the 

commission erred as a matter of law in admitting the claim form. 
establish causation. Concluding the commission did err, we 

reverse. 

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

to the worker. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 

211, 212, 390 S.E.2d 788, 788 (1990). On December 21, 1999, the 

worker, a propane delivery driver, injured himself when he 

slipped on a customer's deck. The worker testified, "[a]s I 

started off the deck after leaving the ticket, I slipped at the 

last section of the deck, falling, and landed on my head and 

shoulders on the bottom step." 

 On January 19, 2000, Dr. Mahoney examined the worker. He 

recorded the following history: "slipped on a frosted deck and 

fell down the stairs. He said that he stepped onto the deck and 

his feet shot out from underneath him and he fell . . . ." The 

Claim for Benefits recited the worker "slipped and fell off wet 

deck." 

 The deputy commissioner concluded, "the injury arose out of 

the employment as the claimant was on the deck pursuant to 

making a delivery and that the act of slipping and falling arose 

out of a risk of employment." The full commission affirmed the 

award on different grounds. It noted that while the worker did 

not provide direct evidence that the wet deck caused his fall, 

he nonetheless proved he "slipped and fell as a result of a wet 

substance on the deck." The commission viewed the medical 

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history and the claim form as supplementing the worker's 

testimony and sufficient to prove causation. 

Whether an accident arises out of the employment is a mixed 

question of law and fact reviewable on appeal. Mullins v. 

Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611 

(1990). "[I]n order for a fall on stairs to be compensable 

there must be a defect in the stairs or claimant must have 

fallen as a result of a condition of the employment." County of 

Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783, 

784-85 (2001). In this case, the worker did not allege there 

was a defect; consequently, the worker had to show that a 

condition of the workplace either caused or contributed to his 

fall. County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 

S.E.2d 73, 76 (1989). 

The worker testified he slipped and fell, but he elaborated 

no further, although nothing indicates he was unable to recall 

details of the fall. He offered no evidence that the manner in 

which he performed the work caused his fall. Marion 

Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 481, 

458 S.E.2d 301, 303 (1995). Proving a fall at work, even at an 

unfamiliar location, does not prove a causative danger of the 

workplace. Southside Virginia Training Ctr. v. Shell, 20 

Va. App. 199, 203-04, 455 S.E.2d 761, 763 (1995). 

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The worker's testimony lacked any detail that suggested a 

condition of his employment caused his fall. "[W]hen the 
claimant, who is in a position of being able to explain the 

occurrence, fails to present evidence which establishes that the 

injury arose out of the employment the claim for compensation 

must be denied." Memorial Hosp. v. Hairston, 2 Va. App. 677, 

682, 347 S.E.2d 527, 529 (1986). The commission may consider 

statements in medical histories "to explain the basis of the 

doctor's opinion, or to impeach (as with a prior inconsistent 

statement), or to corroborate (as with a prior consistent 

statement) the claimant's testimony." McMurphy Coal Co. v. 

Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995). The 

statements may not, however, be relied upon to determine how an 

accident occurred. Board of Supervisors of Henrico County v. 

Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986). 

In Martin, the worker slipped on a soapy floor, injured his 

knee, but filed his claim after the statute of limitations 

expired. The worker stipulated that the injury was caused by 

the last accident. The commission awarded benefits despite the 

delay in filing by ruling the injury was an aggravation of an 

earlier compensable injury. 3 Va. App. at 142, 348 S.E.2d at 

541. This Court held the commission impermissibly used the 

medical history to prove causation. The history was 

impermissible hearsay when used by the worker as substantive 

evidence to refute a stipulation or unequivocal testimony at 

trial. 

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In Miller, the medical history contradicted the worker's 

testimony about the way the accident occurred. This Court held 

the commission erred in failing to consider the medical evidence 

as impeaching the worker's testimony. 20 Va. App. at 59-60, 455 

S.E.2d at 267. 

In Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456 

S.E.2d 541 (1995), a worker gave his doctors inconsistent 

reports of how his injury occurred. The commission refused to 

consider these medical histories in deciding how the accident 

occurred. This Court reversed because the commission failed to 

consider the medical history as a party admission when 

evaluating the worker's evidence. 

The series of cases holds that medical histories may be 

used when it is offered against a party as an admission or when 

used to impeach or corroborate the declarant's testimony. In 

this case, the worker testified he slipped and fell without 

suggesting a cause for the fall. Neither his statement recorded 

in the medical history nor that asserted in the claim form can 

supply what his testimony failed to broach. The statements were 

not party admissions offered as evidence against him, nor did 

they corroborate his testimony. They could not corroborate 

evidence that did not exist.2 

 

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2

 The worker did not identify alternative causes of the fall 

and introduce the statements to support one cause or the other. 

For example, there is no evidence of snow or ice on the ground, 

whether it had recently rained, or whether a different substance 
The worker cannot use the medical histories as the sole 

means of sustaining his burden of proof. See Martin, 3 Va. App. 

at 144-45, 348 S.E.2d at 542; Pence, 20 Va. App. at 318, 456 

S.E.2d at 543. Similarly, assertions in a claim form cannot be 

the sole proof of the claim asserted therein. The form provides 

notice to the employer of its potential liability, activates the 

worker's right to compensation, and invokes the jurisdiction of 

the commission. Binswanger Glass Co. v. Wallace, 214 Va. 70, 

73, 197 S.E.2d 191, 194 (1973). The worker still has the 

burden to present evidence proving the claim. 21 Michie's 

Jurisprudence, Worker's Compensation § 66, 304 (1997) ("no rule 

of liberality will take the place of required proof"). 

 The commission erred in finding the worker proved a 

condition of employment caused or contributed to the fall. 

Accordingly, we reverse the commission's decision but need not 

consider the employer's other assignments of error. 

 Reversed.

 

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was on the deck. Cf. Jennings v. UEC Catalytic, Inc., 74 Va. WC 

76 (1995) (employee's testimony that he slipped and fell and 

that either red oil or rain water was on stairs sufficient to 

prove claim).