COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Bray and Senior Judge Hodges 

Argued at Alexandria, Virginia 

COMMERCIAL COURIER EXPRESS, INC. 

 and MICHIGAN MUTUAL INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1973-96-4 JUDGE RICHARD S. BRAY 

 MARCH 25, 1997 

DAVID CAIRNS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Cecil H. Creasey, Jr. (Sands, Anderson, 

Marks & Miller, on brief), for appellants. 

 No brief or argument for appellee. 

 Commercial Courier Express, Inc. and Michigan Mutual 

Insurance Company (collectively employer) appeal a decision of 

the Virginia Workers' Compensation Commission awarding benefits 

to David Cairns (claimant) for certain accidental injuries. On 

appeal, employer contends that the commission erroneously 

concluded that the accident arose from claimant's employment and 

implicitly found a causal relationship with claimant's "deep vein 

thrombosis." While we agree that the injury arose from 

employment, we remand the issue of causation for specific 

adjudication by the commission. 

 The parties are fully conversant with the record, and this 

memorandum opinion recites only those facts necessary to a 

disposition of the appeal. 

 

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

designated for publication. 
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 Guided by well-established principles, we construe the 

evidence in the light most favorable to the party prevailing 

below, claimant in this instance. See Crisp v. Brown's Tysons 

Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916 

(1986). "If there is evidence, or reasonable inferences can be 

drawn from the evidence, to support the Commission's findings, 

they will not be disturbed on review, even though there is 

evidence in the record to support a contrary finding." Morris v. 

Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348 

S.E.2d 876, 877 (1986); see Code § 65.2-706. 

 To prevail, claimant "must prove: (1) an injury by accident, 

(2) arising out of and (3) in the course of his employment." 

Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 

828, 830 (1988); see Code § 65.2-101. "The phrase arising 'in 

the course of' refers to the time, place, and circumstances under 

which the accident occurred," whereas "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). "[T]he 

arising out of test excludes 'an injury which 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.'" Id. at 183-84, 

376 S.E.2d at 75 (quoting United Parcel Service v. Fetterman, 230 

Va. 257, 258-59, 336 S.E.2d 892, 893 (1985)). Claimant must 
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establish "that the conditions of the workplace or . . . some 

significant work related exertion caused the injury." Plumb Rite 

Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 

306 (1989). 

 "The actual determination of causation is a factual finding 

that will not be disturbed on appeal," if supported by credible 

evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 

S.E.2d 814, 817 (1989); see Code § 65.2-706. However, whether an 

injury arises out of employment is a mixed question of law and 

fact reviewable upon appeal." See Park Oil v. Parham, 1 Va. App. 

166, 168, 336 S.E.2d 531, 532 (1985). 

 Here, relying upon Marion Correctional Treatment Center v. 

Henderson, 20 Va. App. 477, 458 S.E.2d 301 (1995), the commission 

concluded that claimant's injury arose from employment. In 

Henderson, a correctional officer, responsible for "[a]ll . . . 

security and safety of the inmates and the other employees" at 

the institution, determined that "tower officers" were "alert" by 

routinely waving while he walked about the facility. Id. at 480, 

458 S.E.2d at 303. Immediately prior to the accident, Henderson 

had "acknowledged tower two," began to descend stairs, and 

slipped on the third or fourth step while "observing tower one." 

Id. at 479-80, 458 S.E.2d at 302-03. In affirming an award of 

benefits, we noted that: 

 Observation of the guard towers was one of the security 

functions of his employment. The way in which he 

performed this aspect of his job increased his risk of 

falling on this occasion and directly contributed to 

cause his fall and injury. He would not have been 
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equally exposed to the risk apart from his duty to 

observe the guard towers and provide security at the 

facility. [His] injury occurred because of the 

performance of his job duties in a particular manner. 

Therefore, the cause of the injury was not "unrelated 

to any hazard common to the workplace." 

Id. at 480-81, 458 S.E.2d at 303 (quoting Fetterman, 230 Va. at 

259, 336 S.E.2d at 893) (citations omitted). 

 Similarly, claimant in this instance was not specifically 

required to look for the truck while descending stairs, but was 

clearly responsible for "[m]aintaining a fleet of 82 trucks[,] 

taking care of [and] . . . supervising the drivers." Claimant 

testified that he fell because he was "[t]rying to do [two workrelated] things at once, look out the window [for the driver] and 

walk down the stairs." Thus, like Henderson, "[t]he way in which 

[claimant] performed this aspect of his job increased his risk of 

falling on this occasion and directly contributed to cause his 

fall . . . . [His] injury occurred because of the performance of 

his job duties in a particular manner." Id. 

 Accordingly, we affirm the commission's decision that the 

accident arose from claimant's employment. However, because the 

commission did not address employer's contention that the 

evidence was insufficient to prove a causal relationship between 

the accident and alleged injury, we remand for resolution of that 

issue. 

 Affirmed in part and remanded in part.