Izela E. Paz v. McDonald's Store 01638

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
IZELA E. PAZ
v. Record No. 1970-96-4 MEMORANDUM OPINION *
PER CURIAM
McDONALD'S STORE #01638 JANUARY 14, 1997
AND
AMERICAN MANUFACTURERS
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Eric S. Wiener, on brief), for appellant.
(Edward H. Grove, III; Brault, Palmer, Grove,
Zimmerman, White & Mims, on brief), for
appellees.
Izela E. Paz (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that she
failed to prove she sustained an injury by accident arising out
of her employment. 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. Rule
5A:27.
"To prove the 'arising out of' element, [in a case involving
injuries sustained from falling down stairs at work,] claimant
must show that a condition of the workplace either caused or
contributed to her fall." Southside Virginia Training Ctr. v.
Shell, 20 Va. App. 199, 202, 455 S.E.2d 761, 763 (1995) (citing
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
County of Chesterfield v. Johnson, 237 Va. 180, 184, 376 S.E.2d
73, 76 (1989)). "Whether 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). However, unless we
conclude that claimant proved, as a matter of law, that her
employment caused her injury, the commission's finding is binding
and conclusive on appeal. Tomko v. Michael's Plastering Co., 210
Va. 697, 699, 173 S.E.2d 833, 835 (1970).
Although claimant was in the course of her employment when
her injury occurred, her evidence did not show that any defect in
the stairs, the presence of any foreign substance on the stairs,
or any condition peculiar to her workplace caused her to fall
down the steps and injure herself. Although claimant and her
witness testified that there was grease and water on employer's
kitchen floor, no evidence showed that claimant had grease or
water on her shoes when she fell or that claimant had any
problems walking through the kitchen before she descended the
stairs. Moreover, employer's witness testified that she examined
the stairs immediately following claimant's fall and did not
observe any grease, water, or foreign substance on the floor or
stairs. Because no evidence showed a causal connection between
the conditions of claimant's employment and her fall, we are
unable to find that she proved as a matter of law that her injury
arose out of her employment.
2
For the reasons stated, we affirm the commission's decision.
Affirmed.
3