A Rehearing En Banc was granted in this case on May 16, 1995. 

COURT OF APPEALS OF VIRGINIA 

Present: Judge Benton, Senior Judges Cole and Hodges 

Argued at Richmond, Virginia 

BURNADINE Y. CHANDLER 

 MEMORANDUM OPINION* BY 

v. Record No. 1572-94-2 JUDGE JAMES W. BENTON, JR. 

 APRIL 11, 1995 

ARA FOOD SERVICES, INC., and 

 RELIANCE INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 B. Mayes Marks, Jr. (Marks & Lee, P.C., 

 on brief), for appellant. 

 James G. Muncie, Jr. (Midkiff & Hiner, P.C., 

 on brief), for appellees. 

 Burnadine Y. Chandler contends on appeal that the Workers' 

Compensation Commission erred in finding that her slip and fall 

injury did not arise out of her employment. We reverse the 

decision. 

 Chandler arrived for work at 6:15 a.m. on a rainy January 

day. The parking area provided by her employer was dark and wet. 

 When she exited her motor vehicle and took a couple of steps, 

her "foot just slipped out from up under" her. She fell and 

sustained injuries for which she received medical treatment. 

 When asked what she slipped upon, Chandler testified that 

the pavement was "wet" and that she saw "nothing but water." She 

also said that she may have slipped on oil. Her husband did not 

see her fall, but he described the surface of the parking lot as 

 

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

designated for publication. 
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being "slick, it was slippery, had a lot of water on it, mud." A 

security officer who filled out an accident report examined the 

spot and saw nothing on the pavement other than wetness. 

 In finding that her injury arose out of her employment, the 

deputy commissioner relied upon the initial panel decision in 

Jones v. Colonial Williamsburg Found., 8 Va. App. 432, 382 S.E.2d 

300 (1989), aff'd en banc, 10 Va. App. 521, 392 S.E.2d 848 

(1990). The deputy commissioner found that Chandler's fall was 

"not unexplained." In addition, the deputy commissioner found 

that Chandler's injury was caused by the wet condition of the 

pavement on her employer's premises and awarded her temporary 

total disability benefits for a five month period. 

 The full commission, with a dissent, ruled that the injury 

did not arise out of Chandler's employment. In reversing the 

deputy commissioner's decision, the commission reasoned that 

Chandler "could not identify anything on the sidewalk itself as 

causing the fall other than ordinary rainwater," and found, 

therefore, that she was not exposed to a greater risk of injury 

than the general public. 

 The sole issue on appeal is whether Chandler's injury arose 

out of her employment. The employer concedes that Chandler's 

injury arose in the course of her employment but contends that 

her injury did not arise out of her employment. 

 The issue in this case is controlled by this Court's 

decision in Jones. In the initial panel decision in Jones, this 
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Court held that an employee who injured her leg after slipping on 

a wet step suffered an injury by accident that arose out of and 

in the course of her employment. 8 Va. App. at 439, 382 S.E.2d 

at 304. Jones was throwing away personal trash in the employer's 

trash dumpster prior to reporting to work. "After throwing the 

trash from the top step into the dumpster, she turned to go 

toward the tavern, slipped on the wet step of the trash house, 

and injured her leg." Id. at 435, 382 S.E.2d at 302. In 

analyzing whether Jones' injury arose out of her employment, the 

opinion observed that "[a]n injury 'arises out of' the employment 

'when there is apparent to the rational mind upon consideration 

of all the circumstances, a causal connection between the 

conditions under which the work is required to be performed and 

the resulting injury.'" Id. (citation omitted). 

 Upon rehearing en banc, we affirmed those rulings and 

stated: 

 In the present case, Mrs. Jones' injury was 

sustained when she slipped and fell because 

of a wet step leading to the trash 

receptacle. . . . Mrs. Jones' injury arose 

because of the wet and slippery condition on 

the employer's premises. Accidents such as 

the one sustained by Jones during the course 

of her employment always have been considered 

compensable. 

10 Va. App. at 523, 392 S.E.2d at 850. Nothing in Jones

discussed the origin of the water or qualified the right to 

recover because of the origin of the water. See also Wetzel's 

Painting & Wallpapering v. Price, 19 Va. App. 158, 449 S.E.2d 500 
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(1994); Prince v. Pan American World Airways, 6 Va. App. 268, 368 

S.E.2d 96 (1988). 

 In reversing the deputy commissioner's opinion, the 

commission did not find that Chandler's fall was not caused by 

the wet condition of the pavement. Rather, the commission simply 

disregarded this fact and held that the evidence did not prove 

any defect in the pavement. As in Jones, Chandler's slip and 

fall was caused by the wet condition of her employer's premises. 

 Accordingly, the evidence proved that her injury arose out of 

her employment. 

 For this reason, we reverse the commission's findings. 

 Reversed and remanded. 
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COLE, J., dissenting. 

 I respectfully disagree with the decision of the majority 

finding that the claimant sustained an injury arising out of her 

employment. The majority finds that Jones v. Colonial 

Williamsburg Found., 10 Va. App. 521, 392 S.E.2d 848 (1990) (en 

banc), controls the decision in this case. Finding that Jones is 

not dispositive of the issues, I would affirm the decision of the 

commission. 

 After fully reviewing the testimony of the witnesses, the 

commission stated that "the Deputy Commissioner found that the 

claimant slipped on wet pavement within the Philip Morris 

compound while attempting to enter the building for work with the 

pathway such as that it would be considered a part of the 

employer's premises. . . . We agree with this finding of fact." 

 The commission disagreed with the conclusion drawn by the deputy 

commissioner that because the pavement was wet due to the rain 

the accident arose out of the claimant's employment. The 

commission found that the claimant did not prove a causal 

connection between the employment and the injury. 

 The commission quoted at length from the Supreme Court case 

of Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 

(1938), to the effect that the claimant must prove that the 

accident arose out of the employment and to do this she must 

prove "a causal connection between the conditions under which the 

work is required to be performed and the resulting injury." 
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 The commission then stated that Virginia has long ago 

rejected the "positional risk" doctrine and stated: 

 The common denominator in these situations is 

that the employer should [be] held 

responsible where it in some manner created a 

risk of injury or overlooked the risk to the 

detriment of the employees. Such is not the 

case here when the risk encountered was 

simply walking in rain without any evidence 

that the pavement was defective and when the 

claimant could not identify anything on the 

sidewalk itself as causing the fall other 

than ordinary rainwater, which must be 

considered as a causative danger common to 

the neighborhood. 

 The commission stated that it had long ago adopted the 

following position: 

 [I]njuries received from exposure to weather 

conditions, such as heat, cold, ice, snow or 

lightning, are generally classed as risks to 

which the general public is exposed, and not 

within the purview of the Workmen's 

Compensation Acts, although the injured 

person at the time he received his injury, 

may have been performing duties incident to, 

and, in the course of his employment. 

Evans v. Southgate Forwarding and Storage, 90 O.I.C. 76, 80 

(1927). 

 After fully reviewing the law applicable to the case, the 

commission concluded that the claimant was exposed to no greater 

risk of injury than the general public which was out in the rain. 

 Accordingly, it found that the claimant's accident did not arise 

out of her employment. This finding is entirely consistent with 

the principles set forth in Jones v. Colonial Williamsburg and 

numerous other Virginia decisions. 
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 Because the majority bases its decision on Jones, I shall 

discuss that holding and then compare it with this case to show 

that they are distinguishable upon their facts. In Jones, Fay 

Jones was employed by the Colonial Williamsburg Foundation as a 

pantry worker at the King's Arms Tavern. Mrs. Jones and Gloria 

Hundley, a co-worker with whom Jones carpooled on a regular 

basis, parked in the employee's parking lot at the tavern. Jones 

offered to take a small amount of trash out of the car and put it 

in the trash receptacle behind the tavern. Directly behind the 

tavern, approximately fifty to sixty feet from the back entrance 

and several steps off the pathway, but on the property of 

Colonial Williamsburg, there was located a small colonial 

outbuilding with three to four steps which led up and into the 

building. Several dumpsters for depositing trash were located 

inside the building. On the morning that Jones was injured, the 

trash house had been washed out and the steps were wet from the 

washing.1

 Jones walked up the steps and deposited the trash in a 

 

 1The majority states that "[n]othing in Jones discussed the 

origin of the water or qualified the right to recover because of 

the origin of the water." There was no rain water in Jones. The 

only water present in that case originated from the washing of 

the trash house. Fay M. Jones testified that the trash house was 

a "small old colonial house" that had three or four steps going 

up into the trash house. She was going down the steps when she 

fell. She stated: "Somebody had washed the trash house out. The 

steps was wet, and I just slipped and fell." Transcript of 

testimony before Industrial Commission filed in Jones. Although 

the majority opinion in Jones does not specify the origin of the 

"wetness" because there was no dispute concerning it, the 

dissenting opinion clearly states that Jones "climbed three or 

four steps into the trash house which recently had been 'washed 

out.' The steps to the trash house were wet." Jones, 10 Va. 

App. at 525, 392 S.E.2d at 851 (Baker, J., dissenting). 
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dumpster. She exited the house and slipped on the wet steps as 

she was descending them. 

 In Jones, this Court made a comparison between Jones 

slipping on the wet steps of the outbuilding and Johnson falling 

on the steps in County of Chesterfield v. Johnson, 237 Va. 180, 

376 S.E.2d 73 (1989). We said: 

 The Supreme Court said the injury must be caused 

by "the condition of the workplace." . . . In the 

present case, Mrs. Jones' injury was sustained 

when she slipped and fell because of a wet step 

leading to the trash receptacle. Johnson's injury 

was not attributable to a risk or hazard 

associated with the work environment. Mrs. Jones' 

injury arose because of the wet and slippery 

condition on the employer's premises. Accidents 

such as the one sustained by Jones during the 

course of her employment always have been 

considered compensable. 

Jones, 10 Va. App. at 523, 392 S.E.2d at 850 (quoting Johnson, 

237 Va. at 185, 376 S.E.2d at 716). 

 We said in Jones that accidents such as the one sustained by 

Jones during the course of her employment always have been 

considered compensable. This is so because accidents sustained 

during the course of the employment resulting from some natural 

cause does not place liability on the employer. The general rule 

is stated as follows: 

 If an employee is injured by some 

natural force, such as a hurricane, tornado, 

or the like, or is struck by lightning during 

a storm, or drowned as a result of a flood, 

or is injured by falling debris in {?the} 

earthquake, the event does not in and of 

itself fasten liability on the employer. The 

 
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theory is that death or any incapacity to 

work resulting from some natural force, 

operating directly upon the victim without 

the intervention of any other agency or 

instrumentality, arises not out of the 

employment but is due solely to an act of 

God. However, when the nature of the 

employment, or some condition, or environment 

therein, brings into existence a special or 

peculiar risk to the disastrous forces of 

nature, the injury or death of an employee 

may be compensated as a risk of the 

employment. 

E. Blair, Workmen's Compensation § 9.02 (1968); see also 1 

Larson, The Law of Workmen's Compensation, § 8.00 (1990). 

 Our Supreme Court has considered on numerous occasions the 

question whether an injury arose out of employment. See United 

Parcel Serv. v. Fetterman, 230 Va. 257, 336 S.E.2d 892 (1985); 

Central State Hosp. v. Wiggers, 230 Va. 157, 335 S.E.2d 257 

(1985); Richmond Memorial Hosp. v. Crane, 222 Va. 283, 278 S.E.2d 

877 (1981); Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 

S.E.2d 633 (1968); see also, Southside Virginia Training Center 

v. Shell, 20 Va. App. ___, ___ S.E.2d ___ (1995). 

 In County of Chesterfield v. Johnson, 237 Va. 180, 376 

S.E.2d 73 (1989), Johnson had descended steps to the basement 

where he worked to turn off certain water pumps. As he started 

to leave the basement, he remembered that he needed to check a 

certain meter. He turned around on the first step to go back 

down. His knee gave way, and he fell to the floor. The Supreme 

Court rejected Johnson's claim, stating that it did not differ 

from Fetterman, Wiggers and Crane. Specifically, Johnson's claim 
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suffered from the same failing as the other rejected claims: an 

inadequate showing that the work environment contributed to the 

injury. Johnson, 237 Va. at 184, 376 S.E.2d at 75. 

 All of these cases stand for the principle that 

 [a]n accident arises out of the employment when there 

is a causal connection between the claimant's injury 

and the condition under which the employer requires the 

work to be performed. Under this test, an injury 

arises "out of" the employment when it has followed as 

a natural incident of the work and has been a result of 

the exposure occasioned by the nature of the 

employment. Excluded is an injury that 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. The event must appear to 

have had its origin in a risk connected with the 

employment, and to have flowed from that source as a 

rational consequence. 

Fetterman, 230 Va. at 258-59, 336 S.E.2d at 893 (citations 

omitted). 

 I am unable to ascertain from the majority opinion, or from 

a review of the record, any condition of the workplace that 

contributed to the claimant's fall, except the fact that she was 

on the premises. Her presence on the premises, however, is not 

sufficient to satisfy the actual risk test that requires a 

claimant to establish a causal connection between the work 

environment and the injury. Virginia is not a "positional risk" 

jurisdiction. Virginia is an 'actual risk' jurisdiction in which 

an accident, to be compensable, must also be causally related 

with a risk associated with the workplace. County of 

Chesterfield v. Johnson, 237 Va. at 185, 376 S.E.2d at 75-76. 
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"The fact that the injury occurred at work adds nothing and 

answers nothing, when the inquiry is, did the injury arise out of 

the employment. It simply helps prove the 'in the course of' 

prong of the compensability test." Id. at 185, 376 S.E.2d at 76. 

 "Moreover, the claimant has the burden of proving by a 

preponderance of the evidence that the injury was an actual risk 

of the employment." Hill City Trucking, Inc. v. Christian, 238 

Va. 735, 739, 385 S.E.2d 377, 379. Here, there is no evidence in 

the record to show a hazard peculiar to the workplace or 

incidental to claimant's employment. 

 Because I find the majority opinion inconsistent with 

Virginia law, I dissent and would affirm the decision of the 

commission.