                     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

                               - 2 -
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.




                    - 3 -
     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.




                               - 4 -
