COURT OF APPEALS OF VIRGINIA
Present: Judges Beales, Chafin and O’Brien Argued at Fredericksburg, Virginia

SABRINA LEWIS MEMORANDUM OPINION * BY v. Record No . 1977-17-4 JUDGE MAR Y GRACE O’BRIEN JUNE 5, 2018 COVENANT HOLDINGS GROUP, LLC AND FLAGSHIP CITY INSURANCE COMPANY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION W. David Falcon, Jr. (Ackerman & Falcon LLP, on brief), for appellant. Andrew M. Alexander (Michael S. Bliley; Siciliano, Ellis, Dyer & Boccarosse PLC, on brie f), for appellees.

Sabrina Lewis (“claimant”) appeals a decision from the Workers ’ Compensation Commission (“the Commi ssion”) denying her claim for benefits fr om Covenant Holdings Group, LLC (“employer”). She contends t hat the Commission erred by fi nding she did not prove that her injury arose out of an actual risk of her employment. She furt her asserts that the Commission erred by “failing to draw a reasonable i nference from the evidence re garding the floor on which [she] slipped.” Finding no error, we affirm. BACKGROUND Claimant was employe d as a shift manager of a Denny’s restaura nt, owned by the employer. On April 27, 2016, while carryin g frozen soup out of a walk-in freezer, claimant slipped and fell forward onto both knees. At the hearing, claimant described th e injury as follows: I was coming out of the freezer and usually w e take out the – l ike from the freezer – the frozen f ood. And I was holding the soup s, like

* Pursuant to Code § 17.1-413, th is opinion is not designated fo r publication.UNPUBLISHED- 2 - the frozen food in my hand and I was comin g out of the freezer and I slipped and hurt – and as I slipp ed my both knees I was fallen [sic] and my both knees were hurting. And then I struggled to get up and then I finished whatever I was doing. At the hearing, claimant did not indicate what caused her to sl ip. She informed the morning manager, Mohamed Ershad, that she fell in the freezer, but she continued to work full-time until May 31, 2016. C laimant testified that during that time, she ex perienced difficultie s standing, sitting, and performing her regular duties at work. Upon learning of the incident, Ershad cr eated a handwritten re port stating that when “employee was coming out . . . f rom the freezer, employee slipp ed and fell on knees.” The report did not mention any contributin g factor that caused claimant’s fall. At the hearing, Ershad testified that when claimant informed him about the accident “she told [h im] that she slipped [but] there was no water.” Claimant had suffered from knee pain since 2005 . In 2007, a d octor diagnosed her with “bilateral knee medial compartmental degenerative arthritis.” A different doctor recommended total knee replacement in 2 012. During a 2015 ph ysical, claimant “co mplain[ed] of pain in both knees all the time” and stated that he r “knees and ank les often swell .” Claimant te stified that following her fall, she experienced mor e severe pain in her knees. Dr. Jeannette Tao treated claimant in May 2016 for the injurie s she sustained when she fell. Dr. Tao’s notes reflected that cl aimant “[h]as now been experie ncing some falls at work due to her pain.” However, at the hearing, claimant denied telling Dr. Ta o that she fell as a result of any pre-existing pain. Dr. Tao referred claimant to an orthopedic doctor, who noted claimant did not have any swelling in her knees a nd diagnosed her with “[b]ilate ral knee osteoarthrosis.” Claimant subsequently returned to Dr. Tao, who once again noted that cla imant stated she “sustained a fall once at work due to her pain.” In a report, Dr. Tao described claimant’s injury as follows: “[w]hile coming out of the freezer slippe d and hurt both knees. Injured both knees due to slipping.”- 3 - In November 2016, Dr. Nigel A zer at the Anderson Orthopaedic C linic examined claimant at employer’s request. Dr. Azer noted that claimant’s “history is a little bit unclear as she also indicates that her knees have chronically hurt her and caused h er to fall in the past.” He diagnosed her with “[a]dvanced . . . degen erative arthritis of the right and left knees.” Following a hearing, a deputy com missioner awarded benefits to claimant. The commissioner found “it appropria te to infer that claimant’s sli p and fall onto both knees inside of a walk-in freezer . . . resulted in injury to the claimant’s knee s.” The employer appealed the deci sion to the full Commission, whi ch unanimously reversed and vacated the deputy commission er’s decision. The Commissionfound that claimant’s presence in the freezer a rea did not “illu strate a risk of the employmen t,” because claimant “never stated, nor reported to anyone, that anything about the freezer area, or ot herwise, resulted in her slip and fall.” The Commission concluded that “[ a]t most, the medical records a lluded that the claimant fell because of pre-existing pain as opposed to an occupational cond ition.” DISCUSSION To qualify for compensation unde r the Workers’ Compensation Ac t, a claimant must prove by a preponderance of the evidence that the injury arose out of a risk of the employment. Liberty Mut. Ins. Corp. v. He rndon, 59 Va. App. 544 , 555-56, 721 S.E.2d 32, 37-38 (2012). See Code § 65.2-101. “[A]lthough we are bound by the [C]ommission’s und erlying factual findings if those findings are supported by credible evidence, we review de novo the [C]ommission’s ultimate determination as to whether the injury arose out of the claiman t’s employment.” S tillwell v. Lewis Tree Serv., 47 Va. App. 471, 477 , 624 S.E. 2d 681, 683 (2006) (c itations omitted). Therefore, the issue of whether an injury arose out of a claiman t’s employment is a “mixed ques tion of law and fact.” Plumb Rite Plumbing Serv. v. Barbour , 8 Va. App. 482, 4 83, 382 S.E.2d 30 5, 305 (1989).- 4 - Claimant contends that the Comm ission was required to draw a r easonable inference that she slipped and fell due to ice on the floor of the freezer. H owever, a claimant must present sufficient evidence concerning t he circumstances of the injury for the Commission to conclude that the injury arose out of the con ditions of the workplace. See S outhside Va. Training Ctr. v. Shell, 20 Va. App. 199, 203-04, 455 S.E.2d 761, 763-64 (1995) (holding th at the mere fact that a claimant fell at work was not sufficient to m eet claimant’s burden of proof t hat an injury arose out of a risk of employment). “[T]o be compensab le, an injury . . . must be cau sed by the conditions of the workplace.” Barbour, 8 Va. App. at 483, 38 2 S.E.2d at 305. “[ W]hen the claimant, who is in a position of being able to explai n the occurrence, fails to pres ent evidence which establishes that the injury arose out of the employment[,] the claim for compensatio n must be denied.” Mem’l Hosp. of Martinsville v. Hairst on, 2 Va. App. 677, 6 82, 347 S. E.2d 527, 529 (1986). Claimant testified th at she slipped and fe ll in the walk-in fr eezer while carry ing soup. She did not give any reason for her fall, such as ice on the walk-i n freezer floor. She also never suggested that carrying the soup caused her to fall. Additiona lly, none of her medical records indicated that any substance on t he floor caused her to slip. Instead, Dr. Tao noted twice that claimant slipped and fell because of her pre-existing knee pain . Claimant correctly notes that the Commission is en titled to draw reasonable inferences from the e vidence. See Basement Waterproofing & Drainage v. Belan d, 43 Va. App. 352, 358-61, 59 7 S.E.2d 286, 289-90 (2004). However, claimant failed to pres ent sufficient e vidence from wh ich the Commission could infer that ice was present on the walk-in f reezer floor. Th e evidence at the hearing supports the Commission’s finding that claimant fell as a result of pain fro m her pre-existing knee condition. Claimant also assert s that an unsigned do cument entitled “Firs t Report of Injury” (“FROI”) established that her injury arose out of her employment. The p arties agree that the employer’s insurance compan y administratively generated the FROI and that it contains the following language:- 5 - “[claimant] slipped on ice on the floor injuring both knees.” Claimant concedes that the document was never offered as evidence or introduced at the hearing, but she argues that because it was part of the Commission’s record , this Court may tak e judicial notice of it on appeal. Alth ough claimant did not introduce the FROI at the h earing, or ask the Commission to take judicial notice of it, she asks this Court to consider the document as substantive evidence und er Rule of Evidence 2:201(b). Rule 2:201(b) permits a court to take judicial notice of a fac tual matter “at any stage of the proceeding.” See, e.g., Williams v. Commonwealth, 289 Va. 326, 335, 771 S. E.2d 675, 680 (2015). However, “an appellate court may not take judicial notice of . . . documents when they were not relied upon before the court or [ C]ommission below.” Commonwea lth v. Woodward , 249 Va. 21, 23, 452 S.E.2d 656, 6 57 (1995). Further, a court may only “tak e judicial notice of those facts that are either (1) so ‘generally kno wn’ within the jurisdiction or (2) so ‘easily a scertainable’ by reference to reliable sources that reasonably informed people i n the community would not regard them as reasonably subject to di spute.” Taylor v. Commonwealth , 28 Va. App. 1, 7-8, 502 S.E.2d 113, 116 (1998) ( en banc ) (quoting Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 6 98, 703 (1978)). Whether claimant slipped on ice is neither “gener ally known” within the jurisdiction nor “easily ascertainable.” Acco rdingly, we decline to take ju dicial notice of the facts contained in the FROI. Because claimant did not provide sufficient evidence concernin g her fall or the condition of the walk-in freezer floor, the Commission did not err in conclu ding that her injury did not arise out of her employment. Accordingly , we affirm the Commission’s dec ision vacating the award of benefits to claimant. Affirmed.