                               COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Millette
Argued at Chesapeake, Virginia


HAMPTON HOLIDAY INN AND
 FIREMAN’S FUND INSURANCE COMPANY
                                                              MEMORANDUM OPINION * BY
v.     Record No. 2978-07-1                                  JUDGE ROBERT J. HUMPHREYS
                                                                    JUNE 24, 2008
SANDRA B. PEARSON


              FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 Daniel E. Lynch (John T. Cornett, Jr.; Williams & Lynch, on briefs),
                 for appellants.

                 Gregory E. Camden (Charlene A. Morring; Montagna, Klein,
                 Camden, LLP, on brief), for appellee.


       Hampton Holiday Inn and Fireman’s Fund Insurance Company (collectively,

“employer”) appeal from a decision of the Workers’ Compensation Commission (“the

commission”) awarding benefits to Sandra R. Pearson (“Pearson”). The sole issue on appeal is

whether the commission erred in holding that Pearson’s injuries arose out of her employment.

For the following reasons, we affirm the decision of the commission.

       “‘Decisions of the commission as to questions of fact, if supported by credible evidence,

are conclusive and binding on this Court.’” WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494

S.E.2d 147, 152 (1997) (quoting Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409

S.E.2d 824, 826 (1991)). “By statute, the commission’s factual findings are conclusive and

binding on this Court when those findings are based on credible evidence.” City of Waynesboro

v. Griffin, 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008). This is so, “despite the fact that


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
there may be evidence to support a contrary finding.” Hoffman v. Carter, 50 Va. App. 199, 209,

648 S.E.2d 318, 323 (2007). “[W]e defer to the commission’s assessment of the ‘probative

weight’ of the proffered evidence, and we recognize that the commission ‘is free to adopt that

view which is most consistent with reason and justice.’” Griffin, 51 Va. App. at 313, 657 S.E.2d

at 784 (quoting Georgia-Pac. Corp. v. Robinson, 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000)).

“The commission, like any other fact finder, may consider both direct and circumstantial

evidence in its disposition of a claim.” VFP, Inc. v. Shepherd, 39 Va. App. 289, 293, 572 S.E.2d

510, 512 (2002).

       In order for an injury to be compensable under Virginia’s Workers’ Compensation Act,

the claimant must prove by a preponderance of the evidence that the injury arose “out of and in

the course of the employment.” Marketing Profiles v. Hill, 17 Va. App. 431, 433, 437 S.E.2d

727, 729 (1993) (en banc). Employer does not contest that Pearson’s injury occurred in the

course of employment. Employer argues only that the commission erred in holding that

Pearson’s injury arose out of her employment. Employer reasons that, because Pearson cannot

explain exactly how she fell, the evidence was insufficient as a matter of law to prove that her

fall arose out of her employment.

       “The mere fact that an employee was injured at work is not enough to show that his

injury arose out of his employment.” Griffin, 51 Va. App. at 313, 657 S.E.2d at 784.

Furthermore, when an employee survives, but cannot explain his workplace injury, there is no

presumption that the injury arose out of his employment. See Pinkerton’s Inc. v. Helmes, 242

Va. 378, 381, 410 S.E.2d 646, 648 (1991). “A ‘critical link’ must exist between the conditions

of the workplace and the injury in order for the injury to qualify as ‘arising out of’ the

employment.” Pinkerton’s, 242 Va. at 380, 410 S.E.2d at 647.




                                            -2-
       In Basement Waterproofing v. Beland, 43 Va. App. 352, 597 S.E.2d 286 (2004), an

employee was working high atop a ladder applying tar and sealant to holes in a wall. As he

worked, he carried a twenty to thirty-pound bucket in one hand and a glove he used to smear the

tar in his other hand, preventing him from holding onto the ladder. The employee described

balancing near the top of the ladder, and then, the next thing he remembered, he woke up in an

ambulance having apparently fallen off the ladder. “When counsel asked claimant about the

mechanics of reaching a hole to apply the tar prior to his fall, claimant responded, ‘[I]t was to

one side stretching out. . . . About half my body [sic].’” Id. at 355, 597 S.E.2d at 287. In

affirming the commission’s award, we held that “[w]hile claimant did not recall the specific

moment of falling, he described his actions and locations immediately before the fall in detail.

That evidence, combined with the other circumstances, created the ‘critical link’ between

claimant’s employment, his fall and resulting injury.” Id. at 360, 597 S.E.2d at 290.

       We recently reaffirmed Beland in Turf Care, Inc. v. Henson, 51 Va. App. 318, 657 S.E.2d

787 (2008). In Turf Care, we explained that when a claimant offers “testimony describing in

detail the circumstances leading up to and at the time of claimant’s fall,” the commission, “as

fact finder, [can] draw reasonable inferences as to how the accident occurred.” Id. 51 Va. App.

at 327, 657 S.E.2d at 791. From those inferences, the commission may conclude that “claimant

established the critical link between the conditions under which his work was required to be

performed and his injury.” Id.

       Here, like the claimants in Beland and Turf Care, Pearson was able to describe the

circumstances that immediately surrounded her fall. At the time of her accident, Pearson was

hurrying in order to serve one of employer’s customers and avoid leaving employer’s new

employee alone at the front desk. Pearson described in her testimony the dim, varied lighting

throughout the hotel that was “very, very bad” for her. When she fell, she was stepping from a

                                            -3-
dimly lit hallway into the dark night sky and from the interior flooring of the hotel onto “rough,”

“jagged” concrete. From Pearson’s description of the events immediately preceding her fall and

the circumstances surrounding the fall, the commission was able to draw a reasonable inference

as to how the fall occurred, creating the “critical link” between Pearson’s employment and her

fall. That critical link justified the commission’s holding that Pearson’s fall arose out of her

employment.

       Employer argues that this case is controlled by PYA/Monarch & Reliance Ins. Co. v.

Harris, 22 Va. App. 215, 222, 468 S.E.2d 688, 691 (1996). However, as we recently explained

in Griffin, PYA/Monarch is not directly applicable in this type of case:

               [In PYA/Monarch,] [t]he commission [] improperly applied the
               increased risk analysis applicable in idiopathic fall cases to an
               unexplained fall scenario. Thus, PYA/Monarch involved a
               different error of law than that asserted by the employer in this
               case: the commission’s improper conflation of the doctrine of
               idiopathic falls (falls resulting from a pre-existing medical
               condition of the claimant compensable only when the conditions of
               the workplace aggravate the claimant’s injury) and the doctrine of
               unexplained falls.

51 Va. App. at 317, 657 S.E.2d at 786 (citation omitted). Here, the only issue is whether the

evidence is sufficient to support the commission’s finding that Pearson’s fall arose out of her

employment. PYA/Monarch involved a different issue and, thus, is not applicable in this case.

       Credible evidence, and reasonable inferences drawn from that evidence support the

commission’s finding that “a combination of factors” contributed to Pearson’s fall. Those

circumstances – the lighting, the hurrying and the rough concrete – create the “critical link” that

permitted the commission to hold that Pearson’s fall arose out of her employment.




                                            -4-
       Based on the foregoing, we hold that the commission did not err in holding that Pearson’s

injuries arose out of her employment. Therefore, we affirm the commission’s decision.

                                                                                        Affirmed.




                                          -5-
