                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bray and Senior Judge Overton


AUTUMN N. D. PAKRAVAN
                                             MEMORANDUM OPINION*
v.   Record No. 1960-00-1                         PER CURIAM
                                               JANUARY 16, 2001
PIZZA HUT, INC. AND
 ZURICH INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (W. Ware Morrison; W. Ware Morrison, P.C., on
             briefs), for appellant.

             (Joseph F. Giordano; Dana L. Plunkett;
             Semmes, Bowen & Semmes, P.C., on brief), for
             appellees.


     Autumn N.D. Pakravan (claimant) contends that the Workers'

Compensation Commission erred in finding that she failed to

prove that she sustained an injury by accident arising out of

her employment on June 26, 1998.     Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit.     Accordingly, we summarily affirm the

commission's decision.     See 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 Hospital 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 testified that on June 26, 1998, while working for

employer as a cook, she was on her way to the kitchen while

carrying an empty pizza pan.    At that time, she slipped, "went

back" and hit the back of her head.     She did not identify any

substance on the floor or any defect in the floor that might

have caused the fall.   She did not know what she hit her head

on.   She did not attribute her fall to carrying the pizza pan.

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She could not recall any of the medical treatment she received

after the accident.

     James Aydlett, employer's assistant manager, testified in

his deposition that he witnessed claimant's fall.   He stated

that claimant was carrying two pizza pans and that her job did

not require that she rush.   He stated that claimant was walking

normally at the time and that she looked like she "was losing

her balance and she was reaching behind to grab the trash can to

steady her" when she fell.   Aydlett did not see any substance on

the floor where claimant fell.

     Claimant's medical records reflect that on July 2, 1998,

she told Dr. Robert Nash that she was carrying a pizza in her

left hand and she slipped on water on the floor.    On September

3, 1998, claimant told Dr. Robert Hansen that she slipped on a

wet floor while working at Pizza Hut on June 26, 1998.   On

September 4, 1998, Dr. Thomas Pellergrino noted that claimant

had slipped and fallen at work on June 26, 1998, hitting her

head on a counter.

     In ruling that claimant failed to prove that she sustained

an injury by accident arising out of her employment on June 26,

1998, the commission found as follows:

          [T]he claimant testified that she slipped
          and fell. She did not identify the
          substance on which she fell. . . . The
          claimant produced no evidence that she
          slipped on any substance or object on the
          ground. On the contrary, the evidence shows
          that the claimant does not know what

                                 - 3 -
          happened. . . . Here, the claimant could
          not state that she had actually slipped on
          any substance. . . . She simply stated that
          she slipped and fell. She was carrying an
          empty pizza pan but there was no evidence
          that the pan caused the claimant to lose her
          balance or otherwise contribute to the fall.
          There was no testimony that the claimant was
          in a hurry, or not performing her assigned
          duties. In fact, her assistant manager,
          Adylett [sic], testified that her job did
          not require her to rush. . . . Adylett
          [sic], who witnessed the fall, stated that
          the claimant was walking normally and lost
          her balance. Adylett [sic] did not observe
          any substance on the floor where the
          claimant fell.

     Based upon the testimony of claimant and Aydlett, the

commission, as fact finder, was entitled to conclude that "the

facts in this case do not indicate that a condition of the floor

caused or contributed to the fall."   In light of the testimony

of claimant and Aydlett, we cannot find as a matter of law that

claimant proved that she sustained an injury by accident arising

out of her employment on June 26, 1998.

     Claimant argues that the medical histories should have been

used by the commission to find that she proved she sustained an

injury by accident arising out of her employment.   We disagree.

          [I]n Board of Supervisors of Henrico County
          v. Martin, 3 Va. App. 139, 348 S.E.2d 540
          (1986), the claimant's hearing testimony
          proved that his accident was not
          compensable. The commission nonetheless
          decided otherwise and relied on the
          claimant's medical histories given to his
          physician as proof of how the accident
          occurred. We held that the commission's
          findings violated Massie v. Firmstone, 134
          Va. 450, 462, 114 S.E. 652, 656 (1922),

                              - 4 -
          which stated that a party is bound by his or
          her unequivocal testimony at trial.

Pence Nissan Oldsmobile v. Oliver, 20 Va. App. 314, 318, 456

S.E.2d 541, 543 (1995).   In this case, claimant's unequivocal

testimony proved that her accident was not compensable.

Accordingly, the commission did not err in refusing to rely upon

the medical histories as proof of how the accident occurred.

See id.

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

                                                   Affirmed.




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