                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


CHARLES RAY WARLITNER (DECEASED),
 MARIE W. HALL, and RIVERSIDE
 HEALTHCARE ASSOCIATION, INC., t/a
 RIVERSIDE REGIONAL MEDICAL CENTER       MEMORANDUM OPINION *
                                             PER CURIAM
v.         Record No. 2958-96-1            MARCH 25, 1997

McDONALD'S McCOPCO NO. 05161/
 McDONALD'S CORPORATION

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Phillips M. Dowding, on briefs), for
           appellants.

           (Scott C. Ford; Midkiff & Hiner, on brief),
           for appellee.



     Charles R. Warlitner, deceased, by and through his sister,

Marie Hall, and Riverside Healthcare Association, Inc., t/a

Riverside Regional Medical Center, appeal a decision of the

Workers' Compensation Commission (commission) denying their

application alleging a February 23, 1995 injury by accident

resulting in Warlitner's death.   Appellants contend that the

commission erred in refusing to apply the presumption found in
Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735

(1958), that the injuries which resulted in Warlitner's death

arose out of his employment.    Finding no error, we affirm the

commission's decision.

     On appeal, we view the evidence in the light most favorable
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
to the prevailing party below.     R.G. Moore Bldg. Corp. v.

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

     So viewed, the evidence established that on February 23,

1995, Warlitner worked for McDonald's Corporation (the

restaurant) as a maintenance worker.     On the morning of February

23, 1995, when Warlitner reported for work, his duties required

that he clean the restaurant's bathrooms and the cement floor of

the corral. 1   At approximately 8:15 a.m., Warlitner was found

lying unconscious on his left side on the corral floor with his

body near an empty soft drink tank.
     Before discovering that he had been injured, Vangeline

Mattison, the restaurant's assistant manager, had last seen

Warlitner outside the restaurant preparing to take a bag of trash

to the corral.    Mattison found the bag of trash by the back door

to the restaurant.    Mattison denied that there was any grease on

the ground in the corral area where Warlitner was lying.       Joann

Gould, the restaurant's manager, testified that she did not

observe any grease in the area where Warlitner was found.

     Mattison testified that Warlitner had missed a day from work

during the week before his accident.     She recalled that Warlitner

had a cold and was coughing and breathing heavily at work.      Lori

Staples, a manager trainee, recalled that on approximately
     1
      The "corral" was an area behind the restaurant surrounded
by a seven-foot high wooden fence where the restaurant stored
its dumpsters, a large grease can, and empty soft drink
canisters. One of Warlitner's job duties was to take trash and
empty soft drink canisters to the corral.



                                 - 2 -
February 16, 1995, Warlitner complained of dizziness and had a

bad cold.    Warlitner had a family history of heart attacks and

aneurysms.

     Gould, who rode with Warlitner in the ambulance to the

hospital, stated that Warlitner did not appear to know why he had

fallen.   Warlitner's physician diagnosed Warlitner as suffering

from a traumatic brain injury with a brain contusion, hemorrhage,

and a skull fracture.   Warlitner remained a patient in Riverside

Regional Hospital until he died on March 20, 1995.   In an autopsy

report, Dr. Faruk Presswalla reported the cause of Warlitner's

death as a "[p]ulmonary embolus complicating basal skull fracture

with cerebral contusion due to a fall."
     Mattison, Gould, and Marie Hall visited Warlitner during his

hospitalization.   Each of these witnesses stated that although

Warlitner was conscious and able to communicate at times, he was

never able to remember how the accident occurred.

     The commission denied the application, finding that the

evidence failed to show that a condition of Warlitner's workplace

caused his injury or that the Alvis presumption applied.

Therefore, the commission concluded that the evidence failed to

prove that Warlitner's injuries arose out of his employment.

     A claimant must prove that an injury arose out of and in the

course of his employment to qualify for any benefits under the

Workers' Compensation Act.    See Pinkerton's, Inc. v. Helmes, 242

Va. 378, 380, 410 S.E.2d 646, 647 (1991).   "A 'critical link'



                                - 3 -
must exist between the conditions of the workplace and the injury

in order for the injury to qualify as 'arising out of' the

employment."     Id.   In this case, the cause of Warlitner's

accident is unknown.     As the commission noted, appellants could

not point to any evidence which indicated that Warlitner's fall

was caused by a risk of his employment.     Therefore, only if

appellants are entitled to a presumption that Warlitner's

injuries arose out of his employment are they entitled to

workers' compensation benefits.
     In Alvis, the Supreme Court held:
            We have long since adopted the rule to the
          effect that where an employee is found dead
          as the result of an accident at his place of
          work or nearby, where his duties may have
          called him during the hours of his work, and
          there is no evidence offered to show what
          caused the death or to show that he was not
          engaged in his master's business at the time,
          the court will indulge the presumption that
          the relation of master and servant existed at
          the time of the accident and that it arose
          out of and in the course of his employment.


Alvis, 200 Va. at 171-72, 104 S.E.2d at 738 (emphasis added).

In Pinkerton's, the Supreme Court held that the Alvis presumption
is limited to death cases, and is not applicable to an

unexplained accident case.      Pinkerton's, 242 Va. at 381, 410

S.E.2d at 648.

     We find that the commission correctly refused to apply the

Alvis presumption.     The presumption does not apply to a case such

as this one, where Warlitner was not found dead at the scene of

the accident, but rather died approximately one month later.


                                  - 4 -
     Because appellants' evidence did not as a matter of law

sustain their burden of proving that Warlitner's injuries arose

out of his employment, we affirm the commission's decision.

                                                       Affirmed.




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