COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Overton 

Argued at Salem, Virginia 

HARDEE'S OF AMHERST 

AND 

BODDIE NOELL ENTERPRISES, INC. 

 MEMORANDUM OPINION* BY 

v. Record No. 0873-97-3 JUDGE JOSEPH E. BAKER 

 DECEMBER 16, 1997 

NANCY J. JOHNSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Monica L. Taylor (Matthew W. Broughton; 

Gentry, Locke, Rakes & Moore, on brief), for 

appellants. 

 No brief or argument for appellee. 

 Hardee's of Amherst and Boddie Noell Enterprises, Inc., 

(employer) appeal from a decision of the Virginia Workers' 

Compensation Commission (commission) awarding benefits to 

Nancy J. Johnson (claimant) for a right-elbow injury sustained as 

a result of a fall that occurred while claimant was at work for 

employer. On appeal, employer contends that the commission erred 

by (1) holding that claimant's fall arose out of her employment 

and (2) failing to consider the history of the accident contained 

in certain medical records to impeach claimant's testimony 

regarding how the accident occurred. For the reasons that 

follow, we reverse the commission's award.1

 

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

designated for publication. 

 1Because our decision rests on the first question presented, 

we do not reach the second one. 
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 As the parties are fully conversant with the record, we 

reference only those facts necessary to a disposition of the 

appeal. 

 At the hearing before the deputy commissioner, claimant 

described the incident as follows: 

 Well, it was very busy that day, it was 

during lunch hour and everything. And I 

turned to get the sandwiches for a customer 

and everything, when I turned real fast I 

went I went, like I went flying across. I 

hit the floor, I landed right on my elbow. 

When asked by the deputy commissioner, "Did your feet slip, is 

that what happened?", she responded, "Yes. I just went flying." 

 Claimant received treatment first at the hospital and then 

from John W. Barnard, M.D. Dr. Barnard's office note of 

March 27, 1996, provides the following history: 

 This is a 39 y/o right-hand dominant w/f with 

a history of seizure disorders who felt dizzy 

today at Hardee's and fell landing directly 

on her right elbow. She remembers the 

accident and does not think she had a 

seizure. She was seen in the ER, x-rays 

[were] taken and she was referred to the 

office for evaluation after being cleared 

from a seizure standpoint. 

 The deputy commissioner found that claimant sustained an 

injury arising out of and in the course of her employment and 

awarded medical benefits. Employer appealed the determination 

that the injury arose out of claimant's employment, and the full 

commission affirmed, with one commissioner dissenting. In its 

opinion, the commission said: 

 The employee was engaged in her usual 

activities during the busy lunch hour at a 
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fast-food restaurant at the time of the fall. 

 Any number of things could have been on the 

floor which would have caused her fall. That 

she cannot identify exactly what she stepped 

on prior to her fall does not defeat her 

claim. 

 We disagree with that statement as related to this case. A 

claimant has "the burden of establishing, by a preponderance of 

the evidence, and not merely by conjecture or speculation, that 

she suffered an injury by accident which arose out of and in the 

course of the employment." Central State Hosp. v. Wiggers, 230 

Va. 157, 159, 335 S.E.2d 257, 258 (1985) (emphasis added). 

 The phrases arising "out of" and arising "in 

the course of" are separate and distinct. We 

have long held that they mean different 

things and that proof of both is essential to 

recovery under the [Workers' Compensation] 

Act. The phrase arising "in the course of" 

refers to the time, place, and circumstances 

under which the accident occurred. The 

phrase arising "out of" refers to the origin 

or cause of the injury. 

County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 

73, 74 (1989) (citation omitted). Our Supreme Court has clearly 

declared that a claimant must prove a "'critical link' . . . 

between the conditions of the workplace and the injury in order 

for the injury to qualify as 'arising out of' the employment." 

Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 

647 (1991) (quoting Johnson, 237 Va. at 186, 376 S.E.2d at 76). 

 On appeal, we are bound by the factual findings of the 

commission if they are supported by credible evidence in the 

record. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. 
- 4 - 

App. 503, 504, 339 S.E.2d 916, 916 (1986); Code § 65.2-706. 

However, "[w]hether 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). 

 We conclude that this case is controlled by the holding in 

Wiggers, 230 Va. 157, 335 S.E.2d 257. In that case, the claimant 

"'turned' or 'twisted' her ankle while walking" to answer a 

telephone. Id. at 158, 335 S.E.2d at 258. She testified that 

she didn't "know if the floor was slippery or what," and merely 

"surmised that the floor might have been slippery from some 

unknown cause" such as floor wax or some foreign substance from 

renovations going on elsewhere in the building. Id. In that 

case, the commission concluded that claimant "turned her ankle 

while walking along a floor made slippery by an unknown substance 

causing the claimant to turn her ankle and suffer an immediate 

injury." Id. However, the Virginia Supreme Court concluded that 

"[t]he record provide[d] no support, beyond the claimant's 

speculation, for these findings," and reversed the commission's 

award. Id. at 158-60, 335 S.E.2d at 258-59. 

 In this case, the record fails to identify the cause of the 

fall with the required specificity, and the commission may not 

speculate what substance, if any, caused claimant to fall. The 

record is devoid of evidence that anything on the floor caused 

claimant to slip, and it contains no indication that claimant was 
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working in an unusual or awkward position or that she was engaged 

in unusual lifting or carrying activities. See id. Compare

Johnson, 237 Va. at 184-86, 376 S.E.2d at 75-76 (holding that 

twist-type injury incurred while turning on ordinary staircase 

did not arise out of employment), with Reserve Life Ins. Co. v. 

Hosey, 208 Va. 568, 569, 159 S.E.2d 633, 634 (1968) (holding that 

injury incurred on rock steps "a little bit higher than usual" 

arose out of employment). This record discloses that claimant's 

accident was an "unexplained fall," which is not compensable 

under Virginia law. See PYA/Monarch and Reliance Ins. Co. v.

Harris, 22 Va. App. 215, 223-24, 468 S.E.2d 688, 692 (1996) 

(compensability of unexplained fall results only from application 

of positional risk doctrine, which has been expressly rejected in 

Virginia in non-death cases in favor of actual risk doctrine) 

(citing Pinkerton's, 242 Va. at 381, 410 S.E.2d at 648). 

 Finding no evidence in the record to establish a sufficient 

causal connection between claimant's work environment and her 

injury, we reverse the holding of the commission and vacate the 

award. 

 Reversed and vacated.