Larry J. Sparks v. Moore's Quality Snacks

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Frank and Clements
LARRY J. SPARKS
MEMORANDUM OPINION*
v. Record No. 2272-00-3 PER CURIAM
JANUARY 23, 2001
MOORE'S QUALITY SNACKS AND
INSURANCE COMPANY OF THE
STATE OF PENNSYLVANIA
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(D. Edward Wise, Jr.; Arrington, Schelin &
Herrell, P.C., on brief), for appellant.
(Scott C. Ford; McCandlish Kaine, P.C., on
brief), for appellees.
Larry J. Sparks (claimant) contends that the Workers'
Compensation Commission erred in finding that he failed to prove
that he sustained an injury by accident arising out of his
employment on August 16, 1999. 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. See Rule 5A:27.
"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).
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
However, unless we can say as a matter of law that claimant's
evidence sustained his burden of proof, the commission's
findings are binding and conclusive upon us. See Tomko v.
Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835
(1970).
"The claimant [has] the burden of establishing, by a
preponderance of the evidence, and not merely by conjecture or
speculation, that [he] 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 [his] 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, Ltd. v. Johns, 228 Va. 249,
253, 321 S.E.2d 287, 289 (1984).
In ruling that claimant failed to prove that his accident
arose out of his employment, the commission found as follows:
There is no evidence that the steps where
the claimant fell were defective. Likewise
there is no evidence that a condition of the
work precipitated the fall. The claimant
was only carrying a switch that weighed
between two and three ounces. There was no
testimony that this interfered with his
ability to traverse the stairway. The sole
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basis for the claimant's fall arising out of
the employment is his testimony that grease
and oil on his work boots caused him to
slip. At the time of the accident, claimant
told Mr. McKemy and Mr. Wells that he did
not know what caused him to fall. Likewise,
the claimant gave a recorded statement on
September 9, 1999, saying the accident
happened so fast that he did not know what
caused it. . . . It was not until several
days after his recorded statement that the
claimant decided to examine his boots and
determined that there was grease and oil on
them. The claimant then concluded that this
must have caused him to fall. The claimant
first mentioned this in the January 24,
2000, deposition and then at Hearing.
At the Hearing, the claimant examined
the boots and said that there was oil and
grease on the soles. However, Mr. Wells and
Mr. McKemy's examinations revealed no such
residue. Likewise, the Deputy Commissioner
personally inspected the boots, visually and
by touch, finding no grease or evidence of
it in the treads. We, likewise, have
examined the boots and find no grease or oil
residue, only the dried debris that was
noted by the Deputy Commissioner. Both Mr.
Wells and Mr. McKemy have testified that the
oil used in the production of potato chips
does not dry if it gets on anything. They
likewise testified that in the waste water
area where the claimant testified he got the
grease on his shoes, there is only a sticky
watery starch mixture. The starch dries
quickly and falls off. In addition, the
process was modified in 1999. The oil and
grease are not contained in the waste water
area, but rather in the cook or packaging
area. We note the claimant has not been in
this Waste Water Department since the Friday
prior to his accident. The claimant at no
time advised the employer of his theory, nor
is it mentioned in the medical reports.
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Based upon the conflict between claimant's testimony and
his earlier reports regarding his accident, and the testimony of
Wells and McKemy, the commission, as fact finder, was entitled
to conclude that "we cannot find that the claimant fell on the
steps as a result of grease or oil on his shoes." Absent
claimant's testimony that there was grease or oil on his boots,
no evidence established that any condition of claimant's
workplace either caused or contributed to his fall. In
addition, no evidence established that a defect in the steps
caused him to fall. Accordingly, we cannot find as a matter of
law that claimant proved he sustained an injury by accident
arising out of his employment on August 16, 1999.
For these reasons, we affirm the commission's decision.
Affirmed.
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