                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Overton
Argued at Salem, Virginia


HARDEE'S OF AMHERST
AND
BODDIE NOELL ENTERPRISES, INC.
                                          MEMORANDUM OPINION * BY
v.   Record No. 0873-97-3                 JUDGE JOSEPH E. BAKER
                                            DECEMBER 16, 1997
NANCY J. JOHNSON


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            Monica L. Taylor (Matthew W. Broughton;
            Gentry, Locke, Rakes & Moore, on brief), for
            appellants.

            No brief or argument for appellee.



     Hardee's of Amherst and Boddie Noell Enterprises, Inc.,

(employer) appeal from a decision of the Virginia Workers'

Compensation Commission (commission) awarding benefits to

Nancy J. Johnson (claimant) for a right-elbow injury sustained as

a result of a fall that occurred while claimant was at work for

employer.   On appeal, employer contends that the commission erred

by (1) holding that claimant's fall arose out of her employment

and (2) failing to consider the history of the accident contained

in certain medical records to impeach claimant's testimony

regarding how the accident occurred.   For the reasons that

follow, we reverse the commission's award. 1
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      Because our decision rests on the first question presented,
we do not reach the second one.
     As the parties are fully conversant with the record, we

reference only those facts necessary to a disposition of the

appeal.

     At the hearing before the deputy commissioner, claimant

described the incident as follows:
          Well, it was very busy that day, it was
          during lunch hour and everything. And I
          turned to get the sandwiches for a customer
          and everything, when I turned real fast I
          went I went, like I went flying across. I
          hit the floor, I landed right on my elbow.

When asked by the deputy commissioner, "Did your feet slip, is

that what happened?", she responded, "Yes.   I just went flying."

     Claimant received treatment first at the hospital and then

from John W. Barnard, M.D.   Dr. Barnard's office note of

March 27, 1996, provides the following history:
          This is a 39 y/o right-hand dominant w/f with
          a history of seizure disorders who felt dizzy
          today at Hardee's and fell landing directly
          on her right elbow. She remembers the
          accident and does not think she had a
          seizure. She was seen in the ER, x-rays
          [were] taken and she was referred to the
          office for evaluation after being cleared
          from a seizure standpoint.


     The deputy commissioner found that claimant sustained an

injury arising out of and in the course of her employment and

awarded medical benefits.    Employer appealed the determination

that the injury arose out of claimant's employment, and the full

commission affirmed, with one commissioner dissenting.    In its

opinion, the commission said:
          The employee was engaged in her usual
          activities during the busy lunch hour at a



                                - 2 -
           fast-food restaurant at the time of the fall.
            Any number of things could have been on the
           floor which would have caused her fall. That
           she cannot identify exactly what she stepped
           on prior to her fall does not defeat her
           claim.


     We disagree with that statement as related to this case.     A

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 and in the

course of the employment."   Central State Hosp. v. Wiggers, 230

Va. 157, 159, 335 S.E.2d 257, 258 (1985) (emphasis added).
          The phrases arising "out of" and arising "in
          the course of" are separate and distinct. We
          have long held that they mean different
          things and that proof of both is essential to
          recovery under the [Workers' Compensation]
          Act. The phrase arising "in the course of"
          refers to the time, place, and circumstances
          under which the accident occurred. The
          phrase arising "out of" refers to the origin
          or cause of the injury.


County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d

73, 74 (1989) (citation omitted).   Our Supreme Court has clearly

declared that a claimant must prove a "'critical link' . . .

between the conditions of the workplace and the injury in order

for the injury to qualify as 'arising out of' the employment."
Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646,

647 (1991) (quoting Johnson, 237 Va. at 186, 376 S.E.2d at 76).

     On appeal, we are bound by the factual findings of the

commission if they are supported by credible evidence in the

record.   See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.




                               - 3 -
App. 503, 504, 339 S.E.2d 916, 916 (1986); Code § 65.2-706.

However, "[w]hether 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).

     We conclude that this case is controlled by the holding in

Wiggers, 230 Va. 157, 335 S.E.2d 257.     In that case, the claimant

"'turned' or 'twisted' her ankle while walking" to answer a

telephone.     Id. at 158, 335 S.E.2d at 258.     She testified that

she didn't "know if the floor was slippery or what," and merely

"surmised that the floor might have been slippery from some

unknown cause" such as floor wax or some foreign substance from

renovations going on elsewhere in the building.        Id.   In that

case, the commission concluded that claimant "turned her ankle

while walking along a floor made slippery by an unknown substance

causing the claimant to turn her ankle and suffer an immediate

injury."     Id.   However, the Virginia Supreme Court concluded that

"[t]he record provide[d] no support, beyond the claimant's

speculation, for these findings," and reversed the commission's

award.     Id. at 158-60, 335 S.E.2d at 258-59.

     In this case, the record fails to identify the cause of the

fall with the required specificity, and the commission may not

speculate what substance, if any, caused claimant to fall.        The

record is devoid of evidence that anything on the floor caused

claimant to slip, and it contains no indication that claimant was




                                  - 4 -
working in an unusual or awkward position or that she was engaged

in unusual lifting or carrying activities.   See id.   Compare

Johnson, 237 Va. at 184-86, 376 S.E.2d at 75-76 (holding that

twist-type injury incurred while turning on ordinary staircase

did not arise out of employment), with Reserve Life Ins. Co. v.

Hosey, 208 Va. 568, 569, 159 S.E.2d 633, 634 (1968) (holding that

injury incurred on rock steps "a little bit higher than usual"

arose out of employment).   This record discloses that claimant's

accident was an "unexplained fall," which is not compensable

under Virginia law.   See PYA/Monarch and Reliance Ins. Co. v.

Harris, 22 Va. App. 215, 223-24, 468 S.E.2d 688, 692 (1996)

(compensability of unexplained fall results only from application

of positional risk doctrine, which has been expressly rejected in

Virginia in non-death cases in favor of actual risk doctrine)

(citing Pinkerton's, 242 Va. at 381, 410 S.E.2d at 648).

     Finding no evidence in the record to establish a sufficient

causal connection between claimant's work environment and her

injury, we reverse the holding of the commission and vacate the

award.
                                             Reversed and vacated.




                               - 5 -
