                                              COURT OF APPEALS OF VIRGINIA


              Present: Judges Beales, Chafin and O’Brien
UNPUBLISHED


              Argued at Fredericksburg, Virginia


              SABRINA LEWIS
                                                                              MEMORANDUM OPINION* BY
              v.     Record No. 1977-17-4                                    JUDGE MARY GRACE O’BRIEN
                                                                                    JUNE 5, 2018
              COVENANT HOLDINGS GROUP, LLC AND
               FLAGSHIP CITY INSURANCE COMPANY


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               W. David Falcon, Jr. (Ackerman & Falcon LLP, on brief), for
                               appellant.

                               Andrew M. Alexander (Michael S. Bliley; Siciliano, Ellis, Dyer &
                               Boccarosse PLC, on brief), for appellees.


                     Sabrina Lewis (“claimant”) appeals a decision from the Workers’ Compensation

              Commission (“the Commission”) denying her claim for benefits from Covenant Holdings Group,

              LLC (“employer”). She contends that the Commission erred by finding she did not prove that her

              injury arose out of an actual risk of her employment. She further asserts that the Commission erred

              by “failing to draw a reasonable inference from the evidence regarding the floor on which [she]

              slipped.” Finding no error, we affirm.

                                                         BACKGROUND

                     Claimant was employed as a shift manager of a Denny’s restaurant, owned by the employer.

              On April 27, 2016, while carrying frozen soup out of a walk-in freezer, claimant slipped and fell

              forward onto both knees. At the hearing, claimant described the injury as follows:

                               I was coming out of the freezer and usually we take out the – like
                               from the freezer – the frozen food. And I was holding the soups, like

                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
               the frozen food in my hand and I was coming out of the freezer and I
               slipped and hurt – and as I slipped my both knees I was fallen [sic]
               and my both knees were hurting. And then I struggled to get up and
               then I finished whatever I was doing.

At the hearing, claimant did not indicate what caused her to slip. She informed the morning

manager, Mohamed Ershad, that she fell in the freezer, but she continued to work full-time until

May 31, 2016. Claimant testified that during that time, she experienced difficulties standing, sitting,

and performing her regular duties at work.

       Upon learning of the incident, Ershad created a handwritten report stating that when

“employee was coming out . . . from the freezer, employee slipped and fell on knees.” The report

did not mention any contributing factor that caused claimant’s fall. At the hearing, Ershad testified

that when claimant informed him about the accident “she told [him] that she slipped [but] there was

no water.”

       Claimant had suffered from knee pain since 2005. In 2007, a doctor diagnosed her with

“bilateral knee medial compartmental degenerative arthritis.” A different doctor recommended total

knee replacement in 2012. During a 2015 physical, claimant “complain[ed] of pain in both knees

all the time” and stated that her “knees and ankles often swell.” Claimant testified that following

her fall, she experienced more severe pain in her knees.

       Dr. Jeannette Tao treated claimant in May 2016 for the injuries she sustained when she fell.

Dr. Tao’s notes reflected that claimant “[h]as now been experiencing some falls at work due to her

pain.” However, at the hearing, claimant denied telling Dr. Tao that she fell as a result of any

pre-existing pain. Dr. Tao referred claimant to an orthopedic doctor, who noted claimant did not

have any swelling in her knees and diagnosed her with “[b]ilateral knee osteoarthrosis.” Claimant

subsequently returned to Dr. Tao, who once again noted that claimant stated she “sustained a fall

once at work due to her pain.” In a report, Dr. Tao described claimant’s injury as follows: “[w]hile

coming out of the freezer slipped and hurt both knees. Injured both knees due to slipping.”
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        In November 2016, Dr. Nigel Azer at the Anderson Orthopaedic Clinic examined claimant

at employer’s request. Dr. Azer noted that claimant’s “history is a little bit unclear as she also

indicates that her knees have chronically hurt her and caused her to fall in the past.” He diagnosed

her with “[a]dvanced . . . degenerative arthritis of the right and left knees.”

        Following a hearing, a deputy commissioner awarded benefits to claimant. The

commissioner found “it appropriate to infer that claimant’s slip and fall onto both knees inside of a

walk-in freezer . . . resulted in injury to the claimant’s knees.”

        The employer appealed the decision to the full Commission, which unanimously reversed

and vacated the deputy commissioner’s decision. The Commission found that claimant’s presence

in the freezer area did not “illustrate a risk of the employment,” because claimant “never stated, nor

reported to anyone, that anything about the freezer area, or otherwise, resulted in her slip and fall.”

The Commission concluded that “[a]t most, the medical records alluded that the claimant fell

because of pre-existing pain as opposed to an occupational condition.”

                                             DISCUSSION

        To qualify for compensation under the Workers’ Compensation Act, a claimant must prove

by a preponderance of the evidence that the injury arose out of a risk of the employment. Liberty

Mut. Ins. Corp. v. Herndon, 59 Va. App. 544, 555-56, 721 S.E.2d 32, 37-38 (2012). See Code

§ 65.2-101. “[A]lthough we are bound by the [C]ommission’s underlying factual findings if those

findings are supported by credible evidence, we review de novo the [C]ommission’s ultimate

determination as to whether the injury arose out of the claimant’s employment.” Stillwell v. Lewis

Tree Serv., 47 Va. App. 471, 477, 624 S.E.2d 681, 683 (2006) (citations omitted). Therefore, the

issue of whether an injury arose out of a claimant’s employment is a “mixed question of law and

fact.” Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482, 483, 382 S.E.2d 305, 305 (1989).




                                                   -3-
       Claimant contends that the Commission was required to draw a reasonable inference that

she slipped and fell due to ice on the floor of the freezer. However, a claimant must present

sufficient evidence concerning the circumstances of the injury for the Commission to conclude that

the injury arose out of the conditions of the workplace. See Southside Va. Training Ctr. v. Shell, 20

Va. App. 199, 203-04, 455 S.E.2d 761, 763-64 (1995) (holding that the mere fact that a claimant fell

at work was not sufficient to meet claimant’s burden of proof that an injury arose out of a risk of

employment). “[T]o be compensable, an injury . . . must be caused by the conditions of the

workplace.” Barbour, 8 Va. App. at 483, 382 S.E.2d at 305. “[W]hen the claimant, who is in a

position of being able to explain the occurrence, fails to present evidence which establishes that the

injury arose out of the employment[,] the claim for compensation must be denied.” Mem’l Hosp. of

Martinsville v. Hairston, 2 Va. App. 677, 682, 347 S.E.2d 527, 529 (1986).

       Claimant testified that she slipped and fell in the walk-in freezer while carrying soup. She

did not give any reason for her fall, such as ice on the walk-in freezer floor. She also never

suggested that carrying the soup caused her to fall. Additionally, none of her medical records

indicated that any substance on the floor caused her to slip. Instead, Dr. Tao noted twice that

claimant slipped and fell because of her pre-existing knee pain. Claimant correctly notes that the

Commission is entitled to draw reasonable inferences from the evidence. See Basement

Waterproofing & Drainage v. Beland, 43 Va. App. 352, 358-61, 597 S.E.2d 286, 289-90 (2004).

However, claimant failed to present sufficient evidence from which the Commission could infer that

ice was present on the walk-in freezer floor. The evidence at the hearing supports the

Commission’s finding that claimant fell as a result of pain from her pre-existing knee condition.

       Claimant also asserts that an unsigned document entitled “First Report of Injury” (“FROI”)

established that her injury arose out of her employment. The parties agree that the employer’s

insurance company administratively generated the FROI and that it contains the following language:

                                                 -4-
“[claimant] slipped on ice on the floor injuring both knees.” Claimant concedes that the document

was never offered as evidence or introduced at the hearing, but she argues that because it was part of

the Commission’s record, this Court may take judicial notice of it on appeal. Although claimant did

not introduce the FROI at the hearing, or ask the Commission to take judicial notice of it, she asks

this Court to consider the document as substantive evidence under Rule of Evidence 2:201(b).

        Rule 2:201(b) permits a court to take judicial notice of a factual matter “at any stage of the

proceeding.” See, e.g., Williams v. Commonwealth, 289 Va. 326, 335, 771 S.E.2d 675, 680 (2015).

However, “an appellate court may not take judicial notice of . . . documents when they were not

relied upon before the court or [C]ommission below.” Commonwealth v. Woodward, 249 Va. 21,

23, 452 S.E.2d 656, 657 (1995). Further, a court may only “take judicial notice of those facts that

are either (1) so ‘generally known’ within the jurisdiction or (2) so ‘easily ascertainable’ by

reference to reliable sources that reasonably informed people in the community would not regard

them as reasonably subject to dispute.” Taylor v. Commonwealth, 28 Va. App. 1, 7-8, 502 S.E.2d

113, 116 (1998) (en banc) (quoting Ryan v. Commonwealth, 219 Va. 439, 445, 247 S.E.2d 698,

703 (1978)). Whether claimant slipped on ice is neither “generally known” within the jurisdiction

nor “easily ascertainable.” Accordingly, we decline to take judicial notice of the facts contained in

the FROI.

        Because claimant did not provide sufficient evidence concerning her fall or the condition of

the walk-in freezer floor, the Commission did not err in concluding that her injury did not arise out

of her employment. Accordingly, we affirm the Commission’s decision vacating the award of

benefits to claimant.

                                                                                              Affirmed.




                                                  -5-
