COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

ROBERT AROL SANDERS (DECEASED), 

 PAMELA SANDERS (WIDOW), AMY 

 REBECCA GARWOOD, VANESSA SANDERS 

 AND KIMBERLY SANDERS 

 MEMORANDUM OPINION*

v. Record No. 1083-98-3 PER CURIAM 

 NOVEMBER 24, 1998 

FRIENDSHIP AMBULANCE SERVICE, INC. 

 AND EMPLOYERS INSURANCE OF WAUSAU 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Gerald F. Sharp; Browning, Lamie & Sharp, on 

brief), for appellants. 

 (Michael F. Blair; Penn, Stuart & Eskridge, 

on brief), for appellees. 

 Pamela Sanders, Amy Rebecca Garwood, Vanessa Sanders and 

Kimberly Sanders, the dependents of Robert Arol Sanders, contend 

the Workers' Compensation Commission erred in finding that (1) 

the dependents failed to prove Sanders' death arose out of and in 

the course of his employment and (2) the death presumption did 

not apply. Upon reviewing the record and the briefs of the 

parties, we conclude that this appeal is without merit. 

Accordingly, we summarily affirm the commission's decision. See

Rule 5A:27. 

Facts

 The facts are undisputed. Sanders was the president of 

Friendship Ambulance Service, Inc., a corporation engaged in the 

 

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

designated for publication. 
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business of transporting patients to medical providers throughout 

southwestern Virginia. Friendship's transport business was 

primarily conducted using land-based vehicles. Although 

Friendship owned an airplane, it did not transport patients in 

it. Whenever Friendship was required to transport a patient by 

airplane, it either rented or chartered an airplane from another 

business. 

 Sanders used Friendship's airplane to fly the corporation's 

employees to various meetings and seminars. In addition, Sanders 

used the airplane for personal trips and occasionally transported 

passengers in the airplane who were not employees of Friendship. 

 He reimbursed Friendship for the cost of the transportation for 

his personal ventures. 

 On May 25, 1995, Sanders was killed while piloting 

Friendship's airplane. At the time, Sanders was transporting 

Donnie Dean, an employee of an engineering firm, to Richmond. 

Although Sanders had numerous business contacts in Richmond, no 

evidence showed that Sanders was flying to Richmond for a purpose 

other than to transport Dean. Dean was traveling to Richmond to 

attend a meeting concerning one of the engineering firm's 

projects. Deonna Payne, an employee of the engineering firm, 

made the arrangements for Sanders to transport Dean and testified 

that Friendship was to send the engineering firm an invoice for 

the cost of the transportation. 

 The commission denied the dependent's claim for benefits. 
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 I. 

 "In order to establish entitlement to compensation benefits, 

the claimant must prove, by a preponderance of the evidence, an 

injury by accident which arose out of and in the course of his 

employment." Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383 

S.E.2d 761, 764 (1989). An 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.'" Bradshaw v. Aronovitch, 170 Va. 329, 

335, 196 S.E. 684, 686 (1938) (quoting In re McNicol, 102 N.E. 

697, 697 (Mass. 1913)). "'[A]n accident occurs in the 'course of 

employment' when it takes place within the period of employment, 

at a place where the employee may be reasonably expected to be, 

and while [the employee] is reasonably fulfilling the duties 

of . . . employment or is doing something which is reasonably 

incidental thereto.'" Thore v. Chesterfield County Bd. of 

Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990) 

(quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396 

(1962)). 

 A finding by the commission that an injury did or did not 

arise out of and in the course of employment is a mixed finding 

of law and fact and is properly reviewable on appeal. See City 

of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261 

(1985). On an appeal from the commission's decision, we view the 
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evidence in the light most favorable to the prevailing party 

below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 

212, 390 S.E.2d 788, 788 (1990). Thus, we note that the 

commission found as follows when it denied the dependents' 

application: 

 It is clear from the evidence that no 

one knew exactly why Mr. Sanders was flying 

to Richmond on May 25, 1995. Although there 

is a possibility that his destination may 

have been for business purposes upon arriving 

in Richmond, Virginia, this fact is 

speculative at best. The fact that, as the 

claimant argues, the employer presented no 

evidence that Mr. Sanders was not on a 

business trip at the time of the crash, is 

not controlling because "the burden 

. . . [is] not upon the employer to prove 

that . . . [the employee's] injury did not 

arise out of his employment; the burden of 

proof . . . [is] upon . . . [the employee] to 

prove how the injury occurred and that it is 

compensable." 

(Quoting Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 

387, 363 S.E.2d 433, 440 (1987)). 

 The commission's finding concerning the purpose of the trip 

is supported by credible evidence in the record. Ronald Freeman, 

the vice president of Friendship, testified that Friendship's 

airplane had never been used to transport patients. The evidence 

also proved that Sanders occasionally used the airplane for 

personal purposes. No evidence proved that Sanders was 

transporting Dean for reasons related to Sanders' employment or 

that Sanders had a business purpose for the trip to Richmond. 

Thus, the evidence failed to show that Sanders was fulfilling the 
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duties of his employment with Friendship or doing something 

reasonably incidental to his employment at the time of his death. 

 Any conclusion that Sanders' trip to Richmond was for an 

employment-related purpose would be based on pure speculation. 

 In short, the evidence failed to prove a causal connection 

between the conditions under which Sanders' work was to be 

performed and the fatal airplane crash. Therefore, we cannot say 

as a matter of law that the dependents' evidence sustained their 

burden of proof. See Tomko v. Michael's Plastering Co., 210 Va. 

697, 699, 173 S.E.2d 788, 788 (1970). 

 II. 

 The Supreme Court of Virginia has outlined the death 

presumption as follows: 

 Where an employee is found dead as the 

result of an accident at his place of work or 

near by, 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. 

Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504, 

506 (1938). However, the death presumption applies only if there 

is an absence of evidence contrary to the conclusion that the 

death arose out of the employment. See Hopson v. Hungerford Coal 

Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948). 

 In refusing to apply the death presumption to the 
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circumstances of this case, the commission found as follows: 

 [T]here was evidence that Mr. Sanders was 

carrying a passenger who was at least sharing 

the cost of the trip. This passenger was in 

no way related to the ambulance business. 

Evidence at the hearing also demonstrated 

that this employer was not licensed to carry 

passengers in this fashion. The passenger 

was not a patient being transported as part 

of the business. Other than statements made 

to witnesses, the day before the fatal 

flight, that Mr. Sanders was flying to 

Richmond, there is insufficient evidence 

presented that he was otherwise engaged in 

any business of the employer. As a result, 

there is no evidence that Mr. Sanders was 

actually performing a task connected with his 

employment at the time of his death. 

These findings of fact are supported by credible evidence and 

point to evidence contrary to a conclusion that the death arose 

out of Sanders' employment. See id.

 Sanders died in an airplane crash while transporting Dean 

for a purpose wholly unrelated to the business of Friendship. 

Friendship was not in the business of transporting non-patient 

passengers for pay, and it had been fined on a prior occasion for 

doing so without a license. Although Dean was expected to pay 

Friendship for flight expenses, that arrangement was not 

sufficient to prove that the flight was made by Sanders for 

business rather than personal purposes. Sanders had authority to 

use the airplane for personal flights; he had done so in the 

past; and he reimbursed Friendship for the expenses incurred in 

his personal use of the airplane. 

 Based upon this record, the commission could reasonably 
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infer that Sanders was on a private mission at the time of his 

death. Finding no causal connection between Sanders' death and 

his employment, the commission did not err in refusing to apply 

the death presumption. Therefore, we affirm the commission's 

decision. 

Affirmed.