                       COURT OF APPEALS OF VIRGINIA


Present:      Judges Benton, Coleman and Willis


MILDRED HACKNEY

v.      Record No. 0012-96-3                      MEMORANDUM OPINION *
                                                      PER CURIAM
M P & M COAL CO., INC.                              APRIL 30, 1996
AND
LIBERTY MUTUAL INSURANCE COMPANY


            FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
                (Gerald F. Sharp; Browning, Lamie & Sharp,
                on brief), for appellant.

                (Todd G. Patrick; Deborah W. Dobbins;
                Gilmer, Sadler, Ingram, Sutherland &
                Hutton, on brief), for appellees.



        Mildred Hackney appeals a decision of the Workers'

Compensation Commission denying her application for benefits.

Hackney contends that the commission erred in finding that her

April 4, 1994 fall down a stairway did not arise out of her

employment.      Finding no error, we affirm.

        During the course of her employment on April 4, 1994,

Hackney lifted a box of parts, measuring eighteen by twelve

inches in size, and began to descend the four rock steps of her

home.       While carrying the box in front of her body, she "just

tumbled down the steps."       As she did so, she fell and hurt her

knee.       Hackney testified that she saw no foreign substance on the

steps, no defect in the steps, nor any condition which might have

        *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
caused her to fall.

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

injuries sustained from falling down stairs at work,] [Hackney]

must show that a condition of the workplace either caused or

contributed to her 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 Hackney proved, as a matter of law, that her

employment caused her injury, the commission's finding is binding

and conclusive on appeal.     Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     Although Hackney was performing a work-related activity when

her injury occurred, her evidence failed to show that any defect

in the steps or any condition peculiar to her workplace caused

her to fall down the steps and injure herself.      Contrary to

Hackney's assertion on appeal, no evidence showed that carrying

the box prevented her from seeing the steps, that the box played

any role in causing her fall, or that the box created an added

risk peculiar to her employment.       Therefore, we cannot find that

Hackney proved as a matter of law that her injury arose out of

her employment.



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

                               Affirmed.




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BENTON, J., dissenting.

     I agree that the evidence in this case is lacking and fails

to develop several facts.   However, such as it is, the evidence

proves that Hackney's fall arose out of her employment.

     When Hackney fell and injured her knee, she was in the

course of her employment in a rural mining community.    Hackney

testified that she fell while she was descending steps from the

porch to the ground and "carrying a big box" of parts that she

was required to deliver to her employer's mining operation.    She

testified that she was "not good at [estimating the box's]

poundage" and said the box "was pretty heavy."   Hackney

demonstrated the size of the box; however, her counsel stated on

the record only two dimensions, "Maybe 18 by 12 - inch."

Although that description obviously fails to describe a box,

Hackney did state that the box was "big" and that she was

"cradling it with [her] arms out in front of [her]" as she

descended.
     In response to questioning by the deputy commissioner,

Hackney described the steps that lead to her porch as "big, round

-- some kind of big round pieces of rock."   She further indicated

that the height "is two steps from the ground up to the porch."

     In Reserve Life Ins. Co. v. Hosey, 208 Va. 568, 159 S.E.2d

633 (1968), the following evidence proved an injury arose out of

the course of employment:
          [I]n the course of her employment by
          defendant, Mrs. Hosey was making a door-to-
          door survey in the town of Woodstock to find



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          out whether the people were interested in
          hospital insurance. She was going up the
          steps to one of the homes and when she made
          the final step, she said, "it was just like
          my knee had caught and then it just snapped
          just like a bone had broken in it" and she
          felt a sharp, severe pain. These were rock
          steps that she was ascending, on the corner
          of a street and "they were just a little bit
          higher than usual for a step."

             This was around 4 p.m. on a very hot day
          and she had nothing in her hand except some
          papers as she went up the steps. She did not
          know, she said, what caused her knee to twist
          or turn "because it had never happened
          before." She had worked at all kinds of
          jobs, "and I have never had nothing like that
          happen at any other time." She reported the
          matter that evening to defendant's branch
          supervisor, who later filled out an accident
          report.


Id. at 569, 159 S.E.2d at 634.

     Hackney's testimony that she was descending a step made of a

"big, round -- some kind of big round pieces of rock" while

carrying a box so large and heavy that she had to cradle it in

her arms was sufficient to prove facts "'apparent to the rational

mind upon consideration of all the circumstances, [that] a causal

connection [existed] between the conditions under which the work

is required to be performed and the resulting injury.'"    Id. at

571, 159 S.E.2d at 635 (citation omitted).   Her uncontradicted

testimony proved that the conditions of her workplace caused or

contributed to her fall.   Bradshaw v. Aronovitch, 170 Va. 329,

335-36, 196 S.E. 684, 686 (1938).    See also Marion Correctional
Treatment Center v. Henderson, 20 Va. App. 477, 458 S.E.2d 301

(1995)(a leg injury arose out of employment where a correctional



                                 5
officer testified that he was observing a guard tower, rather

than the steps in front of him, when he descended stairs and

fell).

     For these reasons, I would reverse the commission's denial

of an award to Hackney.




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