                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Kelsey and Senior Judge Hodges


JULIA DIANNE KITZMILLER
                                             MEMORANDUM OPINION*
v.   Record No. 1506-02-4                         PER CURIAM
                                              NOVEMBER 19, 2002
PIZZA HUT AND
 AIU INSURANCE COMPANY/
 AMERICAN INT'L ADJUSTMENT CO.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Michael F. Heaney; LegalAssist P.L.L.C., on
             brief), for appellant.

             (S. Vernon Priddy III; Sands Anderson Marks &
             Miller, on brief), for appellees.


     Julia Dianne Kitzmiller (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 21, 2001.     Upon reviewing the record and the

parties' briefs, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.

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 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."   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).

     Claimant, who delivers pizzas for employer, testified that

on June 21, 2001, she delivered a pizza to a house.   As she was

leaving the house after she had delivered the pizza, she walked

down a stairway, stepped onto the grass and slipped and fell.

She testified that the slip occurred suddenly, but she could not

identify any hazards present in the area where she fell.    She

admitted that the area was well lit, the grass was not wet, and
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that there was nothing present to cause her to trip.   She stated

that she "just slipped and fell.   That's it."

     In ruling that claimant failed to prove that her accident

arose out of her employment, the commission found as follows:

           [T]he evidence shows that the claimant was
           simply walking on grass when she slipped and
           fell. The claimant denied the presence of
           any hazards or any condition peculiar to her
           work that caused her to fall and injure
           herself. Because no evidence establishes a
           causal connection between the conditions of
           the claimant's employment and her fall, we
           find the claimant failed to prove that her
           injury arose out of her employment.

     Based upon this record, the commission, as fact finder, was

entitled to conclude that claimant's evidence failed to sustain

her burden of proof.   No evidence established that any hazard or

condition associated with claimant's workplace either caused or

contributed to her fall.   In fact, the evidence showed that

claimant could not attribute her slip and fall to any particular

cause.   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 21, 2001.

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

                                                          Affirmed.




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