COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bumgardner and Senior Judge Baker 

SUNNYSIDE PRESBYTERIAN RETIREMENT 

 COMMUNITY AND HEALTHCARE PROVIDERS 

 GROUP SELF-INSURANCE ASSOCIATION 

 MEMORANDUM OPINION*

v. Record No. 0828-98-3 PER CURIAM 

 AUGUST 18, 1998 

PEARL D. ROYER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Cathleen P. Welsh; Wharton, Aldhizer & 

Weaver, on brief), for appellants. 

Appellants submitting on brief. 

 (A. Thomas Lane, Jr., on brief), for 

appellee. Appellee submitting on brief. 

 Sunnyside Presbyterian Retirement Community and its insurer 

(hereinafter referred to as "employer") appeal from a decision of 

the Workers' Compensation Commission ("commission") holding that 

Pearl D. Royer ("claimant") proved that she sustained an injury 

by accident arising out of her employment on December 10, 1996. 

For the following reasons, we reverse the commission's decision. 

 On December 10, 1996, claimant worked for employer as a 

housekeeping assistant. Claimant usually exited from her 

workplace straight out of the front entrance/exit doors and 

through an archway without turning. But, on December 10, 1996, 

claimant's husband, who was picking her up from work, had parked 

his vehicle to the right of employer's business and down a hill. 

 

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

designated for publication. 
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 As claimant exited her workplace, she saw her husband's vehicle 

at the bottom of the hill. As she turned to her right to walk 

down the hill, she tripped over the corner of a rectangular 

concrete planter located in front of a pillar, and fell. 

Claimant stated that she caught the tip of her right foot and 

that she was not looking at the planter at the time, although she 

knew it was present. Claimant stated that, "I came out and I 

just touched the top, just tipped it a little bit with my foot. 

I didn't quite step out far enough. Raised my foot and I just 

touched enough to trip me." She further stated: I just didn't 

step away from them far enough. You know, I didn't look down to 

say, oops, I've got to avoid this flower pot. I was just looking 

to see if I could see my husband. And I thought I had got away 

from it far enough, and I just touched it, barely touched it. 

But it was enough to unbalance me. 

 Claimant had worked for employer for approximately six years 

at the time of her injury, and she was aware of the planter's 

location in front of employer's business. She admitted that the 

area had adequate lighting and that there was nothing wrong with 

the ground, the concrete, or the planter. As a result of her 

fall, claimant alleged that she sustained a right shoulder 

injury. 

 Dwight Miller, an architect familiar with the site of 

employer's business, made a drawing of the entrance, showing the 

location of the pillars, planters, and entrance/exit way. 
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According to Miller, the placement of the planter did not violate 

the building code or any custom in the area. 

 The commission, in reversing the deputy commissioner, found 

that claimant's evidence proved that her fall arose from a 

condition of her employment. The commission found that claimant 

"identified the particular danger which caused her injury, i.e., 

a concrete planter designed to make the employer's building more 

inviting to the public." Based upon this finding, the commission 

concluded that "[t]here is therefore a nexus between her 

employment conditions and her injury." 

 "The commission's decision that an accident arises out of 

the employment involves a mixed question of law and fact and is 

thus reviewable on appeal." Southside Virginia Training Ctr. v. 

Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995). 

 "The claimant had 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 . . . the employment." Central State Hosp. v. Wiggers, 

230 Va. 157, 159, 335 S.E.2d 257, 258 (1985). The claimant "must 

show that a condition of the workplace either caused or 

contributed to her fall." Shell, 20 Va. App. at 202, 455 S.E.2d 

at 763. This analysis "excludes an injury which cannot fairly be 

traced to the employment as a contributing proximate cause and 

which comes from a hazard to which the [claimant] would have been 

equally exposed apart from the employment." R & T Investments,
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Ltd. v. Johns, 228 Va. 249, 253, 321 S.E.2d 287, 289 (1984). 

"[O]ur inquiry must be whether credible evidence supports a 

finding that a defect . . . or a condition of [the claimant's] 

employment caused her to fall down . . . and injure herself." 

Shell, 20 Va. App. at 203, 455 S.E.2d at 763. 

 The planter was not, per se, a hazard of claimant's 

workplace, and she was still required to prove that she tripped 

over the planter as a result of an employment-related risk or 

hazard. The uncontroverted evidence was that the planter was not 

defective and that claimant was well aware of its location in 

front of employer's business. No evidence proved that the 

planter created a risk or hazard connected with claimant's 

employment, or that the accident was caused by some facet of 

claimant's job responsibilities. Accordingly, in the absence of 

credible evidence that claimant's accident arose out of her 

employment, the commission's ruling is reversed and the claim 

dismissed. 

 Reversed and dismissed.