                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


DESHAZO OIL COMPANY, INC. AND
 FEDERATED MUTUAL INSURANCE COMPANY
                                          MEMORANDUM OPINION* BY
v.   Record No. 1989-02-3             JUDGE RUDOLPH BUMGARDNER, III
                                               MARCH 4, 2003
JOHN HENRY DILLON, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Robert M. McAdam (Jones & Glenn, P.L.C., on
           brief), for appellants.

           John W. Swezey for appellee.


     Deshazo Oil Company contends the Workers' Compensation

Commission erred in finding John Henry Dillon, Jr. sustained an

injury by accident.   The employer lists six issues on appeal, 1

but they primarily restate the single contention that the

commission erred in relying solely on hearsay statements to



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
     1
       The employer states the following questions: 1) whether
the evidence is sufficient to prove the injury arose out of and
in the course of the employment; 2) whether the evidence
supports the finding that the disability was due to an
aggravation of a pre-existing condition; 3-4) whether the
commission erred as a matter of law in resorting to hearsay
statements contained in the medical reports and Claim for
Benefits to award benefits; 5) whether the commission
erroneously relied on Pence Nissan Oldsmobile v. Oliver, 20
Va. App. 314, 456 S.E.2d 541 (1995); and 6) whether the
commission erred as a matter of law in admitting the claim form.
establish causation.    Concluding the commission did err, we

reverse.

     On appeal, we view the evidence in the light most favorable

to the worker.   R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App.

211, 212, 390 S.E.2d 788, 788 (1990).    On December 21, 1999, the

worker, a propane delivery driver, injured himself when he

slipped on a customer's deck.    The worker testified, "[a]s I

started off the deck after leaving the ticket, I slipped at the

last section of the deck, falling, and landed on my head and

shoulders on the bottom step."

     On January 19, 2000, Dr. Mahoney examined the worker.       He

recorded the following history:     "slipped on a frosted deck and

fell down the stairs.   He said that he stepped onto the deck and

his feet shot out from underneath him and he fell . . . ."      The

Claim for Benefits recited the worker "slipped and fell off wet

deck."

     The deputy commissioner concluded, "the injury arose out of

the employment as the claimant was on the deck pursuant to

making a delivery and that the act of slipping and falling arose

out of a risk of employment."    The full commission affirmed the

award on different grounds.   It noted that while the worker did

not provide direct evidence that the wet deck caused his fall,

he nonetheless proved he "slipped and fell as a result of a wet

substance on the deck."   The commission viewed the medical


                            - 2 -
history and the claim form as supplementing the worker's

testimony and sufficient to prove causation.

        Whether an accident arises out of the employment is a mixed

question of law and fact reviewable on appeal.     Mullins v.

Westmoreland Coal Co., 10 Va. App. 304, 307, 391 S.E.2d 609, 611

(1990).    "[I]n order for a fall on stairs to be compensable

there must be a defect in the stairs or claimant must have

fallen as a result of a condition of the employment."     County of

Buchanan Sch. Bd. v. Horton, 35 Va. App. 26, 29, 542 S.E.2d 783,

784-85 (2001).    In this case, the worker did not allege there

was a defect; consequently, the worker had to show that a

condition of the workplace either caused or contributed to his

fall.     County of Chesterfield v. Johnson, 237 Va. 180, 184, 376

S.E.2d 73, 76 (1989).

        The worker testified he slipped and fell, but he elaborated

no further, although nothing indicates he was unable to recall

details of the fall.    He offered no evidence that the manner in

which he performed the work caused his fall.     Marion

Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 481,

458 S.E.2d 301, 303 (1995).    Proving a fall at work, even at an

unfamiliar location, does not prove a causative danger of the

workplace.     Southside Virginia Training Ctr. v. Shell, 20

Va. App. 199, 203-04, 455 S.E.2d 761, 763 (1995).

        The worker's testimony lacked any detail that suggested a

condition of his employment caused his fall.    "[W]hen the
                           - 3 -
claimant, who is in a position of being able to explain the

occurrence, fails to present evidence which establishes that the

injury arose out of the employment the claim for compensation

must be denied."     Memorial Hosp. v. Hairston, 2 Va. App. 677,

682, 347 S.E.2d 527, 529 (1986).     The commission may consider

statements in medical histories "to explain the basis of the

doctor's opinion, or to impeach (as with a prior inconsistent

statement), or to corroborate (as with a prior consistent

statement) the claimant's testimony."     McMurphy Coal Co. v.

Miller, 20 Va. App. 57, 59, 455 S.E.2d 265, 266 (1995).     The

statements may not, however, be relied upon to determine how an

accident occurred.     Board of Supervisors of Henrico County v.

Martin, 3 Va. App. 139, 144, 348 S.E.2d 540, 542 (1986).

       In Martin, the worker slipped on a soapy floor, injured his

knee, but filed his claim after the statute of limitations

expired.   The worker stipulated that the injury was caused by

the last accident.    The commission awarded benefits despite the

delay in filing by ruling the injury was an aggravation of an

earlier compensable injury.    3 Va. App. at 142, 348 S.E.2d at

541.   This Court held the commission impermissibly used the

medical history to prove causation.    The history was

impermissible hearsay when used by the worker as substantive

evidence to refute a stipulation or unequivocal testimony at

trial.


                             - 4 -
     In Miller, the medical history contradicted the worker's

testimony about the way the accident occurred.   This Court held

the commission erred in failing to consider the medical evidence

as impeaching the worker's testimony.   20 Va. App. at 59-60, 455

S.E.2d at 267.

     In Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 456

S.E.2d 541 (1995), a worker gave his doctors inconsistent

reports of how his injury occurred.   The commission refused to

consider these medical histories in deciding how the accident

occurred.   This Court reversed because the commission failed to

consider the medical history as a party admission when

evaluating the worker's evidence.

     The series of cases holds that medical histories may be

used when it is offered against a party as an admission or when

used to impeach or corroborate the declarant's testimony.   In

this case, the worker testified he slipped and fell without

suggesting a cause for the fall.    Neither his statement recorded

in the medical history nor that asserted in the claim form can

supply what his testimony failed to broach.   The statements were

not party admissions offered as evidence against him, nor did

they corroborate his testimony.    They could not corroborate

evidence that did not exist. 2


     2
       The worker did not identify alternative causes of the fall
and introduce the statements to support one cause or the other.
For example, there is no evidence of snow or ice on the ground,
whether it had recently rained, or whether a different substance
                           - 5 -
     The worker cannot use the medical histories as the sole

means of sustaining his burden of proof.    See Martin, 3 Va. App.

at 144-45, 348 S.E.2d at 542; Pence, 20 Va. App. at 318, 456

S.E.2d at 543.    Similarly, assertions in a claim form cannot be

the sole proof of the claim asserted therein.   The form provides

notice to the employer of its potential liability, activates the

worker's right to compensation, and invokes the jurisdiction of

the commission.    Binswanger Glass Co. v. Wallace, 214 Va. 70,

73, 197 S.E.2d 191, 194 (1973).   The worker still has the

burden to present evidence proving the claim.   21 Michie's

Jurisprudence, Worker's Compensation § 66, 304 (1997) ("no rule

of liberality will take the place of required proof").

     The commission erred in finding the worker proved a

condition of employment caused or contributed to the fall.

Accordingly, we reverse the commission's decision but need not

consider the employer's other assignments of error.

                                                    Reversed.




was on the deck. Cf. Jennings v. UEC Catalytic, Inc., 74 Va. WC
76 (1995) (employee's testimony that he slipped and fell and
that either red oil or rain water was on stairs sufficient to
prove claim).
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