                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


ROBERT AROL SANDERS (DECEASED),
 PAMELA SANDERS (WIDOW), AMY
 REBECCA GARWOOD, VANESSA SANDERS
 AND KIMBERLY SANDERS
                                                MEMORANDUM OPINION *
v.   Record No. 1083-98-3                           PER CURIAM
                                                 NOVEMBER 24, 1998
FRIENDSHIP AMBULANCE SERVICE, INC.
 AND EMPLOYERS INSURANCE OF WAUSAU

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Gerald F. Sharp; Browning, Lamie & Sharp, on
             brief), for appellants.

             (Michael F. Blair; Penn, Stuart & Eskridge,
             on brief), for appellees.



     Pamela Sanders, Amy Rebecca Garwood, Vanessa Sanders and

Kimberly Sanders, the dependents of Robert Arol Sanders, contend

the Workers' Compensation Commission erred in finding that (1)

the dependents failed to prove Sanders' death arose out of and in

the course of his employment and (2) the death presumption did

not apply.    Upon reviewing the record and the briefs of the

parties, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.      See

Rule 5A:27.

                                 Facts

     The facts are undisputed.    Sanders was the president of

Friendship Ambulance Service, Inc., a corporation engaged in the
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
business of transporting patients to medical providers throughout

southwestern Virginia.   Friendship's transport business was

primarily conducted using land-based vehicles.   Although

Friendship owned an airplane, it did not transport patients in

it.   Whenever Friendship was required to transport a patient by

airplane, it either rented or chartered an airplane from another

business.

      Sanders used Friendship's airplane to fly the corporation's

employees to various meetings and seminars.   In addition, Sanders

used the airplane for personal trips and occasionally transported

passengers in the airplane who were not employees of Friendship.

He reimbursed Friendship for the cost of the transportation for

his personal ventures.
      On May 25, 1995, Sanders was killed while piloting

Friendship's airplane.   At the time, Sanders was transporting

Donnie Dean, an employee of an engineering firm, to Richmond.

Although Sanders had numerous business contacts in Richmond, no

evidence showed that Sanders was flying to Richmond for a purpose

other than to transport Dean.   Dean was traveling to Richmond to

attend a meeting concerning one of the engineering firm's

projects.   Deonna Payne, an employee of the engineering firm,

made the arrangements for Sanders to transport Dean and testified

that Friendship was to send the engineering firm an invoice for

the cost of the transportation.

      The commission denied the dependent's claim for benefits.




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                                  I.

     "In order to establish entitlement to compensation benefits,

the claimant must prove, by a preponderance of the evidence, an

injury by accident which arose out of and in the course of his

employment."    Classic Floors, Inc. v. Guy, 9 Va. App. 90, 95, 383

S.E.2d 761, 764 (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 under which the work is required to be performed and

the resulting injury.'"     Bradshaw v. Aronovitch, 170 Va. 329,

335, 196 S.E. 684, 686 (1938) (quoting In re McNicol, 102 N.E.

697, 697 (Mass. 1913)).    "'[A]n accident occurs in the 'course of

employment' when it takes place within the period of employment,

at a place where the employee may be reasonably expected to be,

and while [the employee] is reasonably fulfilling the duties

of . . . employment or is doing something which is reasonably

incidental thereto.'"     Thore v. Chesterfield County Bd. of
Supervisors, 10 Va. App. 327, 331, 391 S.E.2d 882, 885 (1990)

(quoting Conner v. Bragg, 203 Va. 204, 208, 123 S.E.2d 393, 396

(1962)).

     A finding by the commission that an injury did or did not

arise out of and in the course of employment is a mixed finding

of law and fact and is properly reviewable on appeal.     See City

of Richmond v. Braxton, 230 Va. 161, 163-64, 335 S.E.2d 259, 261

(1985).    On an appeal from the commission's decision, we view the



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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).    Thus, we note that the

commission found as follows when it denied the dependents'

application:
                It is clear from the evidence that no
           one knew exactly why Mr. Sanders was flying
           to Richmond on May 25, 1995. Although there
           is a possibility that his destination may
           have been for business purposes upon arriving
           in Richmond, Virginia, this fact is
           speculative at best. The fact that, as the
           claimant argues, the employer presented no
           evidence that Mr. Sanders was not on a
           business trip at the time of the crash, is
           not controlling because "the burden
           . . . [is] not upon the employer to prove
           that . . . [the employee's] injury did not
           arise out of his employment; the burden of
           proof . . . [is] upon . . . [the employee] to
           prove how the injury occurred and that it is
           compensable."

(Quoting Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374,

387, 363 S.E.2d 433, 440 (1987)).

     The commission's finding concerning the purpose of the trip

is supported by credible evidence in the record.   Ronald Freeman,

the vice president of Friendship, testified that Friendship's

airplane had never been used to transport patients.   The evidence

also proved that Sanders occasionally used the airplane for

personal purposes.   No evidence proved that Sanders was

transporting Dean for reasons related to Sanders' employment or

that Sanders had a business purpose for the trip to Richmond.

Thus, the evidence failed to show that Sanders was fulfilling the



                               - 4 -
duties of his employment with Friendship or doing something

reasonably incidental to his employment at the time of his death.

Any conclusion that Sanders' trip to Richmond was for an

employment-related purpose would be based on pure speculation.

     In short, the evidence failed to prove a causal connection

between the conditions under which Sanders' work was to be

performed and the fatal airplane crash.    Therefore, we cannot say

as a matter of law that the dependents' evidence sustained their

burden of proof.   See Tomko v. Michael's Plastering Co., 210 Va.

697, 699, 173 S.E.2d 788, 788 (1970).

                                II.

     The Supreme Court of Virginia has outlined the death

presumption as follows:
               Where an employee is found dead as the
          result of an accident at his place of work or
          near by, 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.

Sullivan v. Suffolk Peanut Co., 171 Va. 439, 444, 199 S.E. 504,

506 (1938).   However, the death presumption applies only if there

is an absence of evidence contrary to the conclusion that the

death arose out of the employment.     See Hopson v. Hungerford Coal

Co., Inc., 187 Va. 299, 305, 46 S.E.2d 392, 394 (1948).

     In refusing to apply the death presumption to the



                               - 5 -
circumstances of this case, the commission found as follows:
          [T]here was evidence that Mr. Sanders was
          carrying a passenger who was at least sharing
          the cost of the trip. This passenger was in
          no way related to the ambulance business.
          Evidence at the hearing also demonstrated
          that this employer was not licensed to carry
          passengers in this fashion. The passenger
          was not a patient being transported as part
          of the business. Other than statements made
          to witnesses, the day before the fatal
          flight, that Mr. Sanders was flying to
          Richmond, there is insufficient evidence
          presented that he was otherwise engaged in
          any business of the employer. As a result,
          there is no evidence that Mr. Sanders was
          actually performing a task connected with his
          employment at the time of his death.

These findings of fact are supported by credible evidence and

point to evidence contrary to a conclusion that the death arose

out of Sanders' employment.   See id.

     Sanders died in an airplane crash while transporting Dean

for a purpose wholly unrelated to the business of Friendship.

Friendship was not in the business of transporting non-patient

passengers for pay, and it had been fined on a prior occasion for

doing so without a license.   Although Dean was expected to pay

Friendship for flight expenses, that arrangement was not

sufficient to prove that the flight was made by Sanders for

business rather than personal purposes.   Sanders had authority to

use the airplane for personal flights; he had done so in the

past; and he reimbursed Friendship for the expenses incurred in

his personal use of the airplane.

     Based upon this record, the commission could reasonably



                               - 6 -
infer that Sanders was on a private mission at the time of his

death.   Finding no causal connection between Sanders' death and

his employment, the commission did not err in refusing to apply

the death presumption.   Therefore, we affirm the commission's

decision.

                                                         Affirmed.




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