                      COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Fitzpatrick
Argued at Salem, Virginia


PYA/MONARCH AND RELIANCE
 INSURANCE COMPANY                               OPINION BY
                                       JUDGE JOHANNA L. FITZPATRICK
v.          Record No. 0454-95-3               APRIL 2, 1996

THOMAS EDWARD HARRIS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
              M. Lanier Woodrum (Wooten & Hart, P.C., on
              briefs), for appellants.

              Berrell F. Shrader (Attorneys and Counselors
              at Law of Virginia, P.C., on brief), for
              appellee.



         In this workers' compensation case, PYA/Monarch and its

insurer, Reliance Insurance Company (collectively referred to as

employer), appeal the commission's decision awarding benefits to

Thomas Edward Harris (claimant).     Employer argues that the

commission erred in:     (1) finding that claimant's injury arose

out of his employment by improperly extending the increased

effects analysis used in idiopathic fall cases to an unexplained

accident, and (2) determining that claimant's injury caused his

disability.     We hold that claimant's injury was a noncompensable,
                                                                1
unexplained accident and reverse the commission's decision.
         Claimant drove a truck for employer.   On March 2, 1994,

claimant encountered freezing rain and ice while making his

     1
     Because we reverse on the "arising out of" issue, we do not
address the other issue raised by employer.
deliveries.   His last delivery stop was the Mountainview Market

in Ironto, Virginia.   Claimant backed his truck up to the store,

set the brakes, and entered the location code into the truck's

computer.   Claimant then stood up, opened the truck door, and

reached for the "grab bar" on the outside of the truck's cab.

During his deposition, claimant testified:   "I remember [reaching

for the grab bar,] and that's all I remember.     And at that point,

you know I don't know what happened from that point on.      At some

time later I remember waking up, I'm laying on my left-hand side,

I've got my left arm underneath of my head, and I'm on the

pavement beside the truck."   (Emphasis added).   Claimant also

stated that his wife thought "somebody coldcocked [him] when [he]

got out of the truck."   When claimant awoke, he could not

remember where he was, who he was, or any details of what had

happened.   He had a knot on his head, and his neck was hurting

and sore.   No one witnessed claimant's fall.
       At the hearing on his application for benefits, claimant

testified that the driver's seat in the truck's cab is located

six-and-one-half to seven feet from the ground.    To enter the

cab, claimant had to go up "two rungs on the ladder and then one

on the step there going through the door."   On the date of

claimant's fall, the surface of the truck's cab was covered with

ice.

       After his fall, claimant went to the emergency room at

Lewis-Gale Hospital.   Dr. T. Gary Parrish examined claimant and



                                  2
diagnosed his condition as "contusion of the head, possible

concussion, loss of consciousness . . . possible seizure type

activity."   Dr. Edward A. Waybright, a neurologist, also examined

claimant and reported that the cause of claimant's fall was

"unclear"; that claimant had "no history of prior head injury,

seizure, or syncope"; and that tests "had not disclosed [the]

specific cause of his fall."   Dr. Waybright admitted claimant for

observation and restricted his driving for six months because of

his loss of consciousness.   In an August 30, 1994 letter, Dr.

Waybright noted that "[t]he evaluation done did rule out any

evidence of seizure activity," and that claimant's fall could

have been caused by "a cardiac irregularity, decrease of glucose

in the blood, dizziness, or slipping while he exited the truck."
     The commission was "persuaded that the fall was precipitated

by the design or icy condition of the cab or both."   However, the

commission made no specific finding regarding the cause of

claimant's fall because it found that "the elevated height of the

trailer cab constituted an added risk of the employment that

caused or contributed to the claimant's injuries and loss of

consciousness."   Additionally, the commission determined that the

six-month restriction on claimant's driving was "a very real

medical restriction that the claimant could not medically or

legally ignore, and which was attributable to his work accident,"

and that employer was liable for claimant's disability.

     Employer argues that claimant's fall was a noncompensable,




                                 3
unexplained accident and that no credible evidence supports the

commission's finding that the fall was caused by the design and

icy condition of the truck cab.   Additionally, employer asserts

that the commission erred in applying the increased effects

analysis used in idiopathic fall cases to an unexplained fall

situation.   We agree.

     "To qualify for workers' compensation benefits, an

employee's injuries must result from an event 'arising out of'

and 'in the course of' the employment."    Pinkerton's, Inc. v.

Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991).     "The

concepts 'arising out of' and 'in the course of' employment are

not synonymous and both conditions must be proved before

compensation will be awarded."    Marketing Profiles, Inc. v. Hill,

17 Va. App. 431, 433, 437 S.E.2d 727, 729 (1993) (en banc).      The

claimant must prove these elements by a preponderance of the

evidence.    Id.

     In this case, employer does not dispute that claimant

suffered an injury by accident occurring "in the course of"

employment, but asserts that claimant failed to prove that his

fall "arose out of" his employment.   "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./Commonwealth of Virginia v.

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

     "All risks causing injury to a claimant can be brought



                                  4
within three categories:   risks distinctly associated with the

employment, risks personal to the claimant, and 'neutral' risks--

i.e., risks having no particular employment or personal

character."    1 Arthur Larson, The Law of Workmen's Compensation

§ 7.00, at 3-12 (1990).    The category of risk in a particular

case determines the analysis used in examining whether a

claimant's injury "arose out of" his or her employment.

     In cases in which the claimant alleges an injury by accident

resulting from an employment-related risk, "[a] 'critical link'

must exist between the conditions of the workplace and the injury

in order for the injury to qualify as 'arising out of' the

employment."    Pinkerton's, 242 Va. at 380, 410 S.E.2d at 647.   In

proving the "arising out of" prong of the compensability test, a

claimant has the burden of showing that "'there is apparent to

the rational mind upon consideration of all the circumstances, a

causal connection between the conditions under which the work is

required to be performed and the resulting injury.'"    Marketing
Profiles, 17 Va. App. at 434, 437 S.E.2d at 729 (quoting Bradshaw

v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)).
          "[I]f the injury can be seen to have followed
          as a natural incident of the work and to have
          been contemplated by a reasonable person
          familiar with the whole situation as a result
          of the exposure occasioned by the nature of
          the employment, then it arises 'out of' the
          employment. But [the arising out of test]
          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 workmen would have been equally
          exposed apart from the employment."




                                  5
Grove v. Allied Signal, Inc., 15 Va. App. 17, 19-20, 421 S.E.2d

32, 34 (1992) (quoting R & T Investments, Ltd. v. Johns, 228 Va.

249, 252-53, 321 S.E.2d 287, 289 (1984)).

     In a personal risk or idiopathic case, the claimant's injury

is one "caused by a preexisting personal disease of the

employee."   Southland Corp. v. Parson, 1 Va. App. 281, 283, 338

S.E.2d 162, 163 (1985).   In Virginia, the general rule regarding

idiopathic falls is that the claimant must prove that the injury

was not caused by some idiopathic condition.   See Winegar v.

International Telephone & Telegraph, 1 Va. App. 260, 263, 337

S.E.2d 760, 761 (1985).   "When an employee's injuries result from

an idiopathic condition and no other factors intervene or operate

to cause or contribute to the injuries sustained as a result of

the idiopathic condition, no award shall be made."   Virginia

Dep't of Transp. v. Mosebrook, 13 Va. App. 536, 538, 413 S.E.2d

350, 351-52 (1992).   However, "'the effects of [an idiopathic]

fall are compensable if the employment places the employee in a

position increasing the dangerous effects of such a fall, such as

on a height, near machinery or sharp corners, or in a moving

vehicle.'"   Southland Corp., 1 Va. App. at 284-85, 338 S.E.2d at

164 (citation omitted).   Thus, in an idiopathic fall situation,

the well-established increased risk doctrine applies, and no

recovery is allowed unless the claimant proves that a condition

of the employment increased the effects of his or her fall.

     Finally, an unexplained fall or accident is encompassed in




                                 6
the "neutral risk" category.   An unexplained injury does not

result from any employment-related condition or from any

idiopathic condition of the claimant.    Memorial Hospital of

Martinsville v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527,

529 (1986).   In Virginia, when an unexplained injury by accident

in the course of employment results in the death of an employee,

a presumption arises that the injury "arose out of" the

employment.   See id. at 680-81, 347 S.E.2d at 528 (emphasis

added) (citing Southern Motor Lines v. Alvis, 200 Va. 168,
171-72, 104 S.E.2d 735, 738 (1958)).    However, the Virginia

Supreme Court has specifically refused to extend the unexplained

death presumption to the unexplained accident context.

Pinkerton's, 242 Va. at 380-81, 410 S.E.2d at 648.

     In Pinkerton's, the Court explained:
               Every unexplained accident, by
          definition, means that no one can relate how
          the accident happened. The reason for the
          inability to recall may be based on a
          preexisting or resulting, temporary or
          permanent, physical condition of the
          claimant, as well as mere inattention at the
          moment of the accident. If mere inability to
          recall the events is the rationale for
          application of the presumption, then it would
          also be logical that the claimant should be
          entitled to the benefit of the presumption in
          any of these circumstances, or whenever there
          is an unexplained accident.

Id. at 381, 410 S.E.2d at 648.   The Supreme Court concluded that

"[b]roadening the use of the [unexplained death] presumption to

such an extent [would] significantly alter[] the jurisprudence of

workers' compensation law.   This change . . . is more properly a



                                 7
matter of policy, a prerogative of the legislative branch of

government."      Id.   Professor Larson has noted that, "[i]n a pure

unexplained-fall case, there is no way in which an award can be

justified as a matter of causation theory except by a recognition

that [positional risk] but-for reasoning satisfies the 'arising'

requirement."     1 Larson, supra, § 10.31(a), at 3-94.    However,

"Virginia has adopted an 'actual risk' test and has rejected the

'positional risk' test followed by other jurisdictions."       Marion
Correctional Treatment Ctr. v. Henderson, 20 Va. App. 477, 480,

458 S.E.2d 301, 303 (1995).      Thus, in an unexplained fall case in

Virginia, a claimant must prove by a preponderance of the

evidence that the fall "arose out of" the employment by

establishing a causal connection between his or her employment

and the fall. 2

        In the instant case, claimant's fall was an unexplained
    2
     In addressing the "arising out of" requirement in unexplained
fall cases, courts have adopted three approaches. First, some
courts require the claimant to show a causal connection between
the injury and his or her employment. Next, other courts allow an
inference that the claimant's fall arose out of the employment if
the claimant can show that no idiopathic condition caused the
fall. Finally, the majority of courts use the positional risk
doctrine to allow recovery in unexplained fall cases. Under the
positional risk doctrine, the claimant is not required to exclude
idiopathic causes. If the claimant can establish that the injury
occurred "in the course of" his or her employment, a presumption
arises that the injury also "arose out of" the employment. See
Circle K Store No. 1131 v. Industrial Comm'n, 796 P.2d 893, 897-98
(Ariz. 1990) (en banc) (discussing the three approaches used in
unexplained fall cases and adopting the positional risk doctrine).
 In Pinkerton's, the Virginia Supreme Court adopted the first
approach and placed the burden on the claimant to show a causal
connection between her accident and her employment. 242 Va. at
381, 410 S.E.2d at 648.



                                     8
accident.    The commission was "persuaded" that the icy condition

and design of the truck cab caused claimant's fall, but no

credible evidence supports this finding.    The mere fact that the

truck cab was icy or that the cab was seven feet from the ground

is insufficient to establish the basis for the fall.    Claimant

could not recall any details of the accident, and the last thing

he remembered was reaching for the grab bar on the side of the

truck cab.   He never testified that he slipped or tripped on one

of the ladder rungs, or that he lost his grip on the grab bar.

Dr. Waybright's speculation that claimant's fall could have been

caused by either "a cardiac irregularity, decrease of glucose in

the blood, dizziness, or slipping while he exited the truck" does

not explain the nature of the fall.    Thus, claimant failed to

prove the requisite causal connection between his employment and

his fall.
     Additionally, in analyzing whether claimant's fall arose out

of his employment, the commission improperly extended the

increased effects analysis properly used in idiopathic fall cases

to an unexplained fall situation.     We are bound by the rationale

of Pinkerton's that an unexplained fall is not compensable "[i]n

the absence of a showing that the [injury] 'arose out of' the

employment."   242 Va. at 381, 410 S.E.2d at 648.   In Southland

Corp., we recognized the distinction between unexplained falls

and idiopathic falls, and did "not consider the consequences of

an unexplained fall by an employee."    1 Va. App. at 284, 338



                                  9
S.E.2d at 163.

     No credible evidence established that claimant's fall was

caused by an idiopathic condition.    The medical evidence ruled

out the possibility that a seizure caused claimant's fall.

Although Dr. Waybright indicated several other idiopathic

conditions as potential causes of claimant's fall, he also

considered it equally possible that claimant slipped when

climbing down from the driver's seat of the truck cab.     Thus, the

increased risk analysis used in idiopathic fall cases was

inappropriate in the instant case because claimant's fall was

clearly an unexplained accident controlled by the Supreme Court's

rationale in Pinkerton's.

     Because claimant is not entitled to a presumption that his

fall arose out of his employment, and because claimant failed to

prove the requisite causal connection between his employment and

his accident, the commission erred in awarding claimant

compensation.    Accordingly, the decision of the commission is

reversed.
                                               Reversed.




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