                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


BERTHA L. FENNELL, WIDOW OF
 JAMES MATHEW FENNELL (DECEASED)
                                             MEMORANDUM OPINION*
v.   Record No. 2711-01-1                         PER CURIAM
                                              FEBRUARY 12, 2002
TARMAC VIRGINIA AND
 INSURANCE COMPANY OF THE
 STATE OF PENNSYLVANIA


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Thomas F. Hennessy; Thomas F. Hennessy,
             P.C., on brief), for appellant.

             (Ralph L. Whitt, Jr.; Michael P. Del Bueno;
             Whitt & Associates, on brief), for appellees.


     Bertha L. Fennell ("claimant"), widow of James Mathew

Fennell ("the decedent"), contends the Workers' Compensation

Commission erred in finding that (1) she failed to prove that

the decedent's death was causally related to a work-related

accident occurring on July 21, 1998; (2) the applicable statute

of limitations accrued as of July 21, 1998 and, therefore, the

claim was time-barred; and (3) the death presumption did not

apply to this case.     Upon reviewing the record and the parties'

briefs, we conclude that this appeal is without merit.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Accordingly, we summarily affirm the commission's decision.

Rule 5A:27.

                             Background

     On October 30, 1998, Frank Schmitz, the decedent's

supervisor, found the decedent, a truck mechanic, dead at his

workplace.    On the morning of October 30, 1998, Schmitz received

a report that the decedent had not reported for work although

his pickup truck had been seen.   Upon investigating further,

Schmitz found the decedent's body in a chair in the office area

with a pool of blood around the base of the chair.    Schmitz saw

a spot of blood that had been wiped up at the entrance to the

tool room, but there was no trail of blood, no evidence of an

accident, and no indication of foul play.    The decedent was

holding a piece of gauze in his right hand.   He was wearing a

moccasin on his right foot and a work boot on his left foot.

These facts indicated to Schmitz that the decedent had been

getting ready to leave work the evening of October 29, 1998,

because he always changed his shoes before leaving.

     Schmitz knew that claimant had sustained an injury at work

on July 21, 1998, but he did not know of any ongoing problems,

medical treatment, or lost time from work.

     A July 21, 1998 report from Maryview Hospital indicated

that the decedent had a history of varicose veins and that he

struck his left leg with a socket wrench, causing immediate,

profuse bleeding.   An examination revealed a four-centimeter
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puncture wound, which was sutured.       On August 7, 1998, the

sutures were removed.   The record contained no further

indication of medical treatment.

     The autopsy report listed the decedent's cause of death as

"Exsanguination due to erosion of an arteriovenous malformation

of the left lateral leg."   The medical examiner observed

arteriovenous malformations extending along the left lateral

calf for a length of five inches and at the medial left knee.

The death certificate listed the same cause of death as the

autopsy report.

                            I. and III.

     A claimant must prove that an injury arose out of and in

the course of his employment to qualify for any benefits under

the Workers' Compensation Act.     Pinkerton's, Inc. v. Helmes, 242

Va. 378, 380, 410 S.E.2d 646, 647 (1991).      "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).

     The claimant argues she proved that the decedent's death

was caused by his July 21, 1998 accident, and in the

alternative, that the commission should have accorded her a

presumption that the decedent's death arose out of his

employment based on the death presumption.


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     In Sullivan v. Suffolk Peanut Co., 171 Va. 439, 199 S.E.

504 (1938), the Supreme Court set forth the requirements for

applying the death presumption as follows:

                  Where an employee is found dead as a
             result of an accident at his place of work
             or nearby, where his duties may have called
             him during the hours of his work, and there
             is no evidence offered to show what caused
             the death or to show that he was engaged in
             his master's business at the time, the court
             will indulge the presumption that the
             relation of master and servant existed at
             the time of the accident, and that it arose
             out of and in the course of his employment.

Id. at 444, 199 S.E. at 506.

     The commission found that the evidence failed to prove that

the decedent's death resulted from an accident.    In addition,

the commission found that the death presumption did not apply in

this case.

     Here, unlike Sullivan, no evidence established that the

decedent was found dead as the result of an accident at his

place of work or nearby at a place where his duties may have

called him.    The fact that the decedent was found dead in his

chair at work did not prove that his death occurred as the

result of an accident.    The only evidence concerning the cause

of the decedent's death was the autopsy report and death

certificate, which showed that his death resulted from

"Exsanguination due to erosion of an arteriovenous malformation

of the left lateral leg."


                                 - 4 -
     Based upon this record, the commission did not err in

finding that the death presumption did not apply and that

claimant failed to prove that the decedent's death resulted from

an injury by accident arising out of his employment.

                               II.

     Because our rulings on the first and third questions

presented by claimant dispose of this appeal, we need not

address the statute of limitations issue.

     For the reasons stated, we affirm the commission's

decision.

                                                          Affirmed.




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