                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


RUTH LINDSAY
                                             MEMORANDUM OPINION*
v.   Record No. 2152-01-1                         PER CURIAM
                                               DECEMBER 11, 2001
DOMESTIC LINEN SUPPLY & LAUNDRY AND
 TRAVELERS INDEMNITY COMPANY OF ILLINOIS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (John H. Klein; Montagna Breit Klein Camden,
             L.L.P., on brief), for appellant.

             (Allen Lotz; Huff, Poole & Mahoney, P.C., on
             brief), for appellees.


     Ruth Lindsay (claimant) contends the Workers' Compensation

Commission erred in finding that she failed to prove she

sustained an injury by accident arising out of her employment on

June 22, 2000.     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.

     "A finding by the Commission that an injury [did or did not

arise] out of and in the course of employment is a mixed finding

of law and fact and is properly reviewable on appeal."      Dublin

Garment Co., Inc. v. Jones, 2 Va. App. 165, 167, 342 S.E.2d 638,


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
638 (1986).   However, unless we can say as a matter of law that

claimant's evidence sustained her 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 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."   Southside Virginia Training Ctr. v.

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

     Claimant testified that on June 22, 2000, while working for

employer as a district manager, she stopped at Interstate

Warehousing to make an unsolicited sales call.    She testified

that she parked her truck and then walked to what she thought

was the front door.   After realizing the door was locked, she

turned to leave and her "right foot hung into a crack in the

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sidewalk."   She stated that the crack "grabbed a hold of my

right shoe, toe end of the shoe" and that this caused her to

"trip" and "fall."   She testified that her "right leg sandwiched

my left foot between the curb and the sidewalk.   Actually right

on the curb."   She stated that she fell towards the parking lot

and her left foot was "crushed" under her right leg.

     Claimant identified numerous photographs she claimed to

have taken the day after the incident.    The photographs depict a

concrete sidewalk area between a parking lot and three concrete

steps leading up to a flat concrete area immediately outside a

building with a glass panel door.   The sidewalk has "seams"

perpendicular to the parking lot.   The concrete sections shown

in the photographs appear to be level, with a few minor cracks

in the curbing and adjacent structures.

     Claimant identified one particular seam as being the cause

for her trip and fall.   That seam has a small perpendicular

crack running from it and parallel to the parking lot.   Claimant

did not state exactly how the crack caused her fall, although

she claimed that the concrete section containing the crack was

higher than the section immediately next to it.

     Paul Denver, insurer's investigator, inspected the area and

took photographs where claimant allegedly fell.   He located the

seam identified by claimant and ran his foot over that seam and

crack.   He found that neither of the concrete sections was

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higher than the other.   He noticed "no imperfections in the walk

itself."   He stated that the crack identified by claimant did

not stand out to him at the time of his inspection.

     The medical records reflect that claimant sought treatment

with Dr. G. Bayley Royer on June 22, 2000.   Dr. Royer recorded a

history of "left ankle injury, roughly 2 hr ago.    Was walking at

work and stepped off curb incorrectly.   Twisted her left leg

inward."   Dr. Royer diagnosed left ankle sprain.

     On June 27, 2000, Dr. Kent E. Willyard examined claimant

and recorded a history of "walking at work and stepped off a

curb and twisted her left foot in an apparent inversion injury

. . . .    She states she simply slipped on the curb."   Dr.

Willyard referred claimant to orthopedic surgeon, Dr. Boyd W.

Haynes, who recorded a history on July 25, 2000 of "injury to

her left foot when she was going up to do a cold call on June 22

. . . , she tripped with her foot in a plantar flexed manner and

pinned her foot against the concrete curb and her body."

     In her July 28, 2000 recorded statement given to the

insurer, claimant described the June 22, 2000 incident as

follows:

            I was cold calling out in Oakland Industrial
            Park door, uh, business to business. Um, I
            was going into --- I parked my truck in
            front of Interstate Warehousing . . . I
            parked my truck, and I walked into what I
            thought was the front door, which was
            locked, and I knew that this wasn't the
            front door. So as I turned around, my right
                                - 4 -
          foot shoe hung into part of the concrete
          sidewalk and through [sic] me off balance.
          My whole body twisted and my right leg fell
          on my left leg, which landed sandwiched
          between the curb and sidewalk on my right
          foot.

With respect to the cause of her fall, claimant stated:

          Well, it hung on something, because it
          tripped me enough to make me lose my
          balance. I'm not gonna say it’s the
          concrete, but I was on the sidewalk. I
          don't know if it was an indenture in the
          sidewalk. I don't, I, I haven't driven back
          there to look at it. All I know is my shoe,
          my right shoe made me stumble. And it, and
          it hung on, it, it caught on something on
          the sidewalk that made me stumble.

Claimant then stated that it was the sidewalk that caused her to

fall, but she was not sure what it was that made her foot catch

and throw her off balance.   She believed that the sidewalk was

not "level ground," but she could not identify any debris that

caused her to fall.   In the claim filed with the commission on

August 14, 2000, claimant indicated the cause of her fall was

"uneven concrete."

     The commission examined the photographs and concluded:

          [They] do not by themselves establish a
          defect. . . . The photographs . . . do not
          reflect any variation in the height of the
          two concrete sections that abutted to make
          the suspect seam. The photographs do not
          reflect the actual size of the various
          features, and neither side offered any
          precise measurements of height, length,
          width, or whether the seam or crack was
          level or unlevel.



                               - 5 -
     In addition, the commission rejected claimant's hearing

testimony, finding as follows:

          During [claimant's] initial medical
          treatment, the claimant reported to both
          Dr. Bayley [sic] and Dr. Willyard that her
          injury occurred when she twisted her ankle
          while stepping off of a curb. Nothing about
          the curb was implicated at the hearing, and
          the claimant now claims a "crush" injury,
          rather than a "twist" injury. The first
          reference to a "trip" in the medical history
          appears more than a month after the
          accident, at which point the claimant
          describes having pinned her foot on the
          curb.

               During the hearing, the claimant
          clearly testified that she took her
          photographs on the day after the accident,
          and that she visited the site before giving
          her recorded statement to the insurer. The
          transcript of that recording, however,
          reveals that the claimant attributed her
          accident to tripping on "something," but
          would not at that time "say it was the
          concrete." She told the insurer at that
          time that she did not know whether her
          accident was caused by an "indenture" in the
          concrete, stating that she had not been back
          to look at the accident location.

               The claimant first reported having
          tripped in a specific way, from a specific
          defect, at the evidentiary hearing. This
          testimony directly contradicts the
          contemporaneous accident history reported to
          the claimant's physicians, and there is no
          explanation for the claimant's ability to
          recall such a specific accident description
          at the hearing –- almost eight months after
          the accident -- and her inability to do so
          only one month after the accident.

     The commission weighed the evidence and found

inconsistencies between claimant's hearing testimony, the
                                 - 6 -
initial histories of her accident reported to Drs. Royer and

Willyard, the content of her recorded statement to the insurer,

and Denver's testimony.    Based upon these inconsistencies,

coupled with the lack of any evidence of any variation in height

of the sidewalk and the lack of any evidence of an apparent

defect in the sidewalk as shown in the photographs, the

commission, as fact finder, was entitled to reject claimant's

testimony and to conclude that she "failed to prove that she was

exposed to a risk of injury peculiar to her employment while on

the premises of Interstate Warehousing on June 22, 2000, and

failed to prove that her accidental injuries were causally

related to such a risk."

     Absent claimant's testimony, no evidence established that

any condition of her workplace either caused or contributed to

her fall.   Specifically, no evidence established that a defect

in the sidewalk caused her to trip and fall.   Accordingly, we

cannot find as a matter of law that claimant proved she

sustained an injury by accident arising out of her employment on

June 22, 2000.

     For these reasons, we affirm the commission's decision.

                                                          Affirmed.




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