                  COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Senior Judge Hodges
Argued at Norfolk, Virginia


CRIZMAR, INC. t/a
 BELGIAN WAFFLE & STEAK HOUSE
                                         MEMORANDUM OPINION * BY
v.   Record No. 3083-96-1               JUDGE WILLIAM H. HODGES
                                              JULY 8, 1997
HELEN L. SANBORN AND
 UNINSURED EMPLOYER'S FUND


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          Paul H. Wilson (Wilson & Wilson, on brief),
          for appellant.

          Cheryl A. Wilkerson, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General; John J. Beall, Jr., Senior Assistant
          Attorney General, on brief), for appellee
          Uninsured Employer's Fund.

          No brief or argument for appellee Helen L.
               Sanborn.




     Crizmar, Inc. t/a Belgian Waffle & Steak House (employer)

appeals a decision of the Workers' Compensation Commission

(commission) awarding benefits to Helen L. Sanborn (claimant).

Employer contends that the commission erred in (1) finding that

claimant sustained an injury by accident arising out of her

employment on June 11, 1995; and (2) not granting employer's

motion to dismiss claimant's appeal to the full commission based

upon her failure to file a written statement as ordered by the

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
commission. 1   Finding no error, we affirm the commission's

decision.
                                  I.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.    See R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

     So viewed, the evidence showed that on June 11, 1995, while

working in employer's restaurant as a cook, claimant fell and

fractured her left ankle.    Employer's kitchen area, where

claimant fell, measures approximately three feet by twelve feet,

with a work area along both sides.     The kitchen floor is composed

of cement with a tile covering.
     Claimant testified that on the morning of June 11, 1995, her

co-worker, Buddy Blair, finished mopping and sweeping the kitchen

area at approximately 7:00 a.m.    At approximately 7:30 a.m.,

claimant walked into the freezer and retrieved some items.      She

loaded the items onto a pushcart and then exited the freezer.     As

claimant carried a pan of meat from the pushcart across the

kitchen area, she slipped and fell.    Claimant described the

incident as follows:
          I picked it up and started to walk, and I hit
          something on the floor. I don't know what.
          It could have been water. It could have been
          butter because it was right where the sink
          was and the toaster. My feet went from under
          me, and I throwed [sic] the pan, and I went
          down because I couldn't grab on nothing
          because my hands was full.


     1
      The Uninsured Employer's Fund filed a brief in support of
the arguments made by employer in its brief.
Claimant stated that her left foot went under her when she fell,

and it began to hurt immediately after the fall.   Claimant sought

medical treatment at Mary Immaculate Hospital on June 11, 1995,

where she reported a history of slipping and falling at work.

X-rays revealed a bimaleolar fracture of the left ankle.

     Claimant came under the care of Dr. Boyd W. Haynes, III.      On

June 13, 1995, claimant reported a history of slipping at work to

Dr. Haynes.   In a May 16, 1996 letter to claimant's counsel, Dr.

Haynes opined that claimant "did have a pre-existing problem with

arthritis of [the left] knee but [I] feel with the history that

was given, that this is not what caused her to fall, but it was

due to the slickness of the floor at the time."
     Claimant testified that she had seen other employees fall in

the kitchen and that water, butter, or grease frequently were

spilled on the floor.   She admitted that she was not able to

determine what she slipped on, that she did not notice any

substance on the floor before she fell and that she did not feel

any particular substance as she fell.   At the time of her fall,

claimant was wearing work shoes with nonskid soles.

     Willie Lancaster, claimant's supervisor, testified that he

was present at the restaurant between 7:00 and 8:00 a.m. on the

date of claimant's fall.   He was cooking with his back to

claimant when he heard a commotion.   He turned around and saw

claimant sitting on the floor, with one leg tucked under her body

and one leg forward.    After the incident, Lancaster examined the




                                  3
area where claimant fell and did not see any foreign debris,

water, or slippery substance.    However, Lancaster acknowledged

that the floor was frequently splattered with cooking substances

or water.    Lancaster testified that in a telephone conversation a

few days after the accident, the claimant told him that she was

not sure how she fell, that she may have slipped or her leg may

have given out.    Claimant denied telling Lancaster that her leg

may have given out.
     Based upon this record, the full commission found that

claimant sustained a compensable injury by accident when she

slipped and fell on June 11, 1995.     The commission relied upon

claimant's testimony that she slipped, along with the medical

histories indicating that she slipped.    The commission noted that

"[w]hen the evidence preponderates that an employee slipped at

work, it is not critical that the slippery substance be

positively identified, as long as the cause of the fall was a

risk of the employment."

     "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).

            An injury arises out of the employment "when

             there is apparent to the rational mind upon

             consideration of all the circumstances, a

             causal connection between the conditions




                                   4
             under which the work is required to be

             performed and the resulting injury . . . .

             But it 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 workman would have been equally

             exposed apart from the employment.    The

             causative danger must be peculiar to the work

             and not common to the neighborhood.   It must

             be incidental to the character of the

             business and not independent of the relation

             of master and servant."

Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335 S.E.2d 257,

259 (1985) (quoting Richmond Memorial Hosp. v. Crane, 222 Va.

283, 285, 278 S.E.2d 877, 878-79 (1981)) (other citation

omitted).

       Claimant's testimony, which was corroborated by the medical

histories, constitutes credible evidence to support the

commission's finding that claimant fell on June 11, 1995 because

she slipped due to a work-related risk, not because her knee gave

way.   In its role as fact finder, the commission was entitled to

give more weight to claimant's testimony than to Lancaster's

testimony.    Claimant's evidence established a causal connection

between the conditions under which employer required her to

perform her work and her resulting injury.    Although claimant



                                   5
could not identify the specific substance or foreign debris that

caused her to slip, the commission could have reasonably inferred

from the evidence that she slipped due to a condition or danger

peculiar to her workplace.   "Where reasonable inferences may be

drawn from the evidence in support of the commission's factual

findings, they will not be disturbed by this Court on appeal."

Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 374 S.E.2d

695, 698 (1988).
                                II.

     We find no merit in employer's contention that the

commission erred in failing to dismiss claimant's appeal to the

full commission because she did not file a written statement.

Claimant complied with the commission's notice by sending a

letter to the commission, which it received on October 4, 1996,

stating that she did not intend to file a written statement

because she could not afford to hire an attorney to do so.

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




                                 6
