                    COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Senior Judge Hodges
Argued at Alexandria, Virginia


COMMERCIAL COURIER EXPRESS, INC.
 and MICHIGAN MUTUAL INSURANCE COMPANY
                                         MEMORANDUM OPINION * BY
v.          Record No. 1973-96-4          JUDGE RICHARD S. BRAY
                                             MARCH 25, 1997
DAVID CAIRNS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Cecil H. Creasey, Jr. (Sands, Anderson,
           Marks & Miller, on brief), for appellants.

           No brief or argument for appellee.



     Commercial Courier Express, Inc. and Michigan Mutual

Insurance Company (collectively employer) appeal a decision of

the Virginia Workers' Compensation Commission awarding benefits

to David Cairns (claimant) for certain accidental injuries.    On

appeal, employer contends that the commission erroneously

concluded that the accident arose from claimant's employment and

implicitly found a causal relationship with claimant's "deep vein

thrombosis."   While we agree that the injury arose from

employment, we remand the issue of causation for specific

adjudication by the commission.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     Guided by well-established principles, we construe the

evidence in the light most favorable to the party prevailing

below, claimant in this instance.      See Crisp v. Brown's Tysons

Corner Dodge, Inc., 1 Va. App. 503, 504, 339 S.E.2d 916, 916

(1986).   "If there is evidence, or reasonable inferences can be

drawn from the evidence, to support the Commission's findings,

they will not be disturbed on review, even though there is

evidence in the record to support a contrary finding."      Morris v.
Badger Powhatan/Figgie Int'l, Inc., 3 Va. App. 276, 279, 348

S.E.2d 876, 877 (1986); see Code § 65.2-706.

     To prevail, claimant "must prove: (1) an injury by accident,

(2) arising out of and (3) in the course of his employment."

Kane Plumbing, Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d

828, 830 (1988); see Code § 65.2-101.     "The phrase arising 'in

the course of' refers to the time, place, and circumstances under

which the accident occurred," whereas "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).     "[T]he

arising out of test excludes 'an injury which comes from a hazard

to which the employee would have been equally exposed apart from

the employment.   The causative danger must be peculiar to the

work, incidental to the character of the business, and not

independent of the master-servant relationship.'"      Id. at 183-84,

376 S.E.2d at 75 (quoting United Parcel Service v. Fetterman, 230

Va. 257, 258-59, 336 S.E.2d 892, 893 (1985)).     Claimant must



                               - 2 -
establish "that the conditions of the workplace or . . . some

significant work related exertion caused the injury."     Plumb Rite

Plumbing Serv. v. Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305,

306 (1989).

     "The actual determination of causation is a factual finding

that will not be disturbed on appeal," if supported by credible

evidence.     Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376

S.E.2d 814, 817 (1989); see Code § 65.2-706.    However, whether an

injury arises out of employment is a mixed question of law and

fact reviewable upon appeal."     See Park Oil v. Parham, 1 Va. App.

166, 168, 336 S.E.2d 531, 532 (1985).

     Here, relying upon Marion Correctional Treatment Center v.

Henderson, 20 Va. App. 477, 458 S.E.2d 301 (1995), the commission

concluded that claimant's injury arose from employment.    In

Henderson, a correctional officer, responsible for "[a]ll . . .

security and safety of the inmates and the other employees" at

the institution, determined that "tower officers" were "alert" by

routinely waving while he walked about the facility.     Id. at 480,

458 S.E.2d at 303.    Immediately prior to the accident, Henderson

had "acknowledged tower two," began to descend stairs, and

slipped on the third or fourth step while "observing tower one."

 Id. at 479-80, 458 S.E.2d at 302-03.    In affirming an award of

benefits, we noted that:
     Observation of the guard towers was one of the security
     functions of his employment. The way in which he
     performed this aspect of his job increased his risk of
     falling on this occasion and directly contributed to
     cause his fall and injury. He would not have been



                                 - 3 -
     equally exposed to the risk apart from his duty to
     observe the guard towers and provide security at the
     facility. [His] injury occurred because of the
     performance of his job duties in a particular manner.
     Therefore, the cause of the injury was not "unrelated
     to any hazard common to the workplace."


Id. at 480-81, 458 S.E.2d at 303 (quoting Fetterman, 230 Va. at

259, 336 S.E.2d at 893) (citations omitted).

     Similarly, claimant in this instance was not specifically

required to look for the truck while descending stairs, but was

clearly responsible for "[m]aintaining a fleet of 82 trucks[,]

taking care of [and] . . . supervising the drivers."   Claimant

testified that he fell because he was "[t]rying to do [two work-

related] things at once, look out the window [for the driver] and

walk down the stairs."   Thus, like Henderson, "[t]he way in which
[claimant] performed this aspect of his job increased his risk of

falling on this occasion and directly contributed to cause his

fall . . . .   [His] injury occurred because of the performance of

his job duties in a particular manner."   Id.

     Accordingly, we affirm the commission's decision that the

accident arose from claimant's employment.   However, because the

commission did not address employer's contention that the

evidence was insufficient to prove a causal relationship between

the accident and alleged injury, we remand for resolution of that

issue.

                          Affirmed in part and remanded in part.




                               - 4 -
