                    COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Duff
Argued by teleconference


RUSSELL D. CLAY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2441-98-4                 JUDGE CHARLES H. DUFF
                                             OCTOBER 26, 1999
WINCHESTER (CITY OF) SHERIFF'S OFFICE
AND
VIRGINIA MUNICIPAL GROUP SELF-INSURANCE ASSOCIATION


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Nikolas E. Parthemos (Parthemos & Bryant,
          P.C., on brief), for appellant.

          Elisabeth M. Ayyildiz (Donald R. Morin;
          Morin & Barkley, on brief), for appellees.


     Russell D. Clay ("claimant") appeals a decision of the

Workers' Compensation Commission ("commission") denying his claim

for benefits.   Claimant contends that the commission erred in

finding that he failed to prove that he sustained an injury by

accident arising out of his employment on October 28, 1997.

Finding no error, we affirm.

     On October 28, 1997, claimant was employed by the City of

Winchester as a deputy sheriff.   On that date, his job duties

required that he post papers on the front door of the central

entrance of an apartment building.   To complete this task, he


     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
ascended a flight of stairs, and taped the papers to the door.

The door was located approximately twenty-seven inches from the

top of the staircase.   As claimant turned to leave, he fell

before his foot made contact with the first step.

     In his recorded statement given less than 48 hours after

his accident, claimant did not recall slipping or tripping and

did not know why he fell.   After returning to the accident site

later and attempting to reconstruct the incident, claimant

testified that when he turned on the top landing after posting

the papers on the door, his foot was partially off the top step.

He then concluded that the leaf blowing activities on the

sidewalk below distracted his attention because he did not wish

to have debris blown in his eyes.   He claimed that he reached

for a handrail as he started to fall, but there was no railing

at the top of the steps.    He was holding a plastic tape

dispenser in his left hand and reached with his right hand.

Claimant also stated that because of understaffing, he was

attempting to serve as many documents as possible.   He admitted

that he was not in any particular hurry, but stated that he

frequently hurries while working.

     In a written statement dated February 25, 1998, John

Knight, the building inspector for the City of Winchester,

reported that on November 3, 1997, he inspected the entrance

stairway where claimant fell.   Knight concluded that the



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staircase was in compliance with the "applicable sections of the

1996 Uniform Statewide Building Code."

     "To prove the 'arising out of' element, [in a case

involving injuries sustained from falling down stairs at work,]

[claimant] must show that a condition of the workplace either

caused or contributed to [his] fall."      Southside Virginia

Training Ctr. v. Shell, 20 Va. App. 199, 202, 455 S.E.2d 761,

763 (1995) (citing County of Chesterfield v. Johnson, 237 Va.

180, 184, 376 S.E.2d 73, 76 (1989)).     "Whether 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).

However, unless we conclude that claimant proved, as a matter of

law, that his employment caused his injury, the commission's

finding is binding and conclusive on appeal.      See Tomko v.

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).

          Although claimant was in the course of his employment

when his injury occurred, his evidence did not show that any

defect in the stairs or any condition peculiar to his workplace

caused him to fall down the steps and injure himself.

Claimant's evidence did not prove that the lack of handrails at

the top of the stairs was a defect or anomaly constituting a

risk of his employment nor did his evidence prove that the

landing at the top of the stairs was defectively narrow.

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Moreover, claimant's evidence did not prove that the lack of

handrails or the width of the landing caused him to fall.

        Contrary to claimant's assertion no evidence proved that

his fall was caused by his rush to serve as many documents as

possible during the day.      Claimant admitted that he was in no

particular hurry on the day of his accident and that he had no

quota to meet.      Moreover, no evidence proved that the alleged

distraction of city employees blowing leaves on the sidewalk

below constituted a risk of claimant's employment or caused his

fall.       In holding that this alleged "distraction did not startle

the claimant, nor prevent him from viewing the staircase before

beginning his descent," the commission found as follows:

               [C]laimant testified that he was aware of
               the city workers blowing leaves when he
               ascended the staircase. After taping papers
               to the door, he turned and looked at the
               city workers in order to decide whether he
               could descend the stairs without a danger of
               having debris blown into his eyes. When
               asked, "And you decided you could proceed
               down the steps?" Clay responded, "That's
               correct."

The commission also found that the distraction was not a risk

peculiar to claimant's employment, but rather, was common to the

neighborhood.      The commission's factual findings are amply

supported by the record, and will, therefore, not be disturbed

on appeal. 1


        1
       Claimant relies on the "street cases" in arguing that he
incurred a risk of distraction by city workers and of exposure
to different types of stairways because his employment required

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     Because no evidence showed a causal connection between the

conditions of claimant's employment and his fall, we are unable

to find that he proved as a matter of law that his injury arose

out of his employment.

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

                                                       Affirmed.




that he travel the public streets. Claimant did not raise this
argument before the commission. Therefore, we will not address
it for the first time on appeal. See Kendrick v. Nationwide
Homes, Inc., 4 Va. App. 189, 192, 355 S.E.2d 347, 349 (1987);
Rule 5A:18.


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