                               COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Felton and Senior Judge Willis


DIANE RYGIELSKI
                                                                 MEMORANDUM OPINION*
v.     Record No. 2457-03-3                                           PER CURIAM
                                                                    JANUARY 20, 2004
LYNCHBURG GENERAL HOSPITAL AND
RECIPROCAL OF AMERICA, VIRGINIA
PROPERTY AND CASUALTY INSURANCE
GUARANTY ASSOCIATION


             FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                 (Philip B. Baker; Sanzone & Baker, P.C., on brief), for appellant.

                 (James A.L. Daniel; Janine M. Jacob; Daniel, Vaughan, Medley &
                 Smitherman, P.C., on brief), for appellees.


       Diane Rygielski (claimant) contends the Workers’ Compensation Commission erred in

finding that she failed to prove she sustained an injury by accident arising out of her employment

on January 7, 2002. Upon reviewing the record and the parties’ briefs, we conclude that this

appeal is without merit. Accordingly, we summarily affirm the commission’s decision.

Rule 5A:27.

       On appeal, we view the evidence in the light most favorable to the prevailing party

below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

“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). “The phrase arising ‘out of’ refers to the origin or cause of the

injury.” County of Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74 (1989). To

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
prevail, claimant must “show that the conditions of the workplace or that some significant work

related exertion caused the injury.” Plumb Rite, 8 Va. App. at 484, 382 S.E.2d at 306.

        Claimant testified that on January 7, 2002, around 4:50 p.m., she exited her workplace

and while walking across an access road to get to an employee parking lot, she “slipped on some

kind of wet surface.” She stated that it had snowed the previous day and that she saw patches of

snow. She described the surface of the road as smooth with no cracks or potholes. She was

wearing leather shoes. Claimant sustained a fracture of her left knee as a result of the fall.

        Claimant admitted that in her answers to employer’s interrogatories she indicated that she

slipped on ice and fell. At the hearing, however, she stated that she did not see what she slipped

on. Claimant also admitted that in her February 2, 2002 recorded statement to insurer’s

representative, she stated that she slipped on something, but she was not sure what caused her to

fall.

        Larry Davis, plant operator in employer’s Plant Engineering Department, confirmed that

the outside temperature on January 7, 2002, near where claimant fell, was 42.25 degrees at

4:00 p.m., 41.8 degrees at 4:30 p.m., and 41.25 degrees at 4:50 p.m.

        Basil W. Mitchell, employer’s security supervisor, who responded almost immediately to

the area where claimant fell, testified that it had snowed a day or two before claimant’s fall, but

he did not notice any snow, ice, dampness or puddles in the area where she fell nor did he see

any defects in the pavement. He stated that claimant’s clothing did not appear wet.

        Samuel P. Register, III, employer’s security officer, assisted claimant within one minute

of receiving the call that she had fallen. He stated that although it had snowed a day or two

before January 7, 2002, he did not see any snow or ice on the asphalt where claimant fell. He

stated that there might have been a little dampness but no puddles. He confirmed that it was not

raining that day. He also noticed that claimant was wearing “very slick-soled shoes.”

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       William J. Kershner, employer’s security officer, who also responded to the scene of

claimant’s fall, did not see any ice or snow in that area. He saw puddles, but they were twenty to

fifty feet away from claimant. He did not notice any defects in the pavement. When he asked

claimant what happened, she stated that she “stepped down wrong.” He did not recall that

claimant’s clothing was wet.

       On rebuttal, claimant called Judith Johnson to testify. Johnson, who was out of work on

disability, testified that she was in the parking lot between 4:30 and 5:00 p.m. on January 7, 2002

and that it was wet. Johnson saw claimant in the parking lot and saw a man place a coat over

claimant. Johnson stated that she saw wet pavement in the area where claimant was lying, but

she did not see any snow or ice.

       Claimant reported to emergency room personnel on January 7, 2002 that she slipped on

ice and fell striking her knee.

       In ruling that claimant failed to prove by a preponderance of the evidence that her injury

arose out of her employment, the commission found as follows:

               [W]e find the evidence fails to establish a cause for the claimant’s
               fall with sufficient specificity. The record contains inconsistent
               explanations for the fall, including ice, wet pavement, or simply
               stepping down “wrong.” A close review of the claimant’s
               testimony in conjunction with the other evidence leads us to the
               conclusion that the claimant is speculating regarding the cause of
               her fall.

                      Additionally, while there is evidence that it had snowed
               within a couple of days of the accident, the employer’s witnesses
               consistently testified that there was no ice, snow or puddles in the
               area where the claimant fell on January 7, 2002. Some of these
               witnesses were on the scene within minutes and we find their
               testimony regarding the condition of the pavement persuasive.

       It is well settled that credibility determinations are within the fact finder’s exclusive

purview. Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437

(1987). The commission, as fact finder, was entitled to accept the testimony of employer’s

                                            -3-
witnesses, Mitchell, Register, and Kershner, and to give little probative weight to the testimony

of claimant and Johnson. Claimant’s hearing testimony was not consistent with her statement to

Kershner that she “stepped down wrong,” nor was it consistent with her description of the

incident contained in her recorded statement, the history she gave to emergency room personnel

on January 7, 2002, or the description of the incident contained in her March 22, 2002 Claim for

Benefits. Employer’s witnesses, Mitchell, Register, and Kershner, arrived in the area where

claimant fell very shortly after her fall, and consistently testified that there was no snow, ice or

puddles in the area where claimant fell and there was no defect in the pavement.

       A claimant has “the burden of establishing, by a preponderance of the evidence, and not

merely by conjecture or speculation, that she suffered an injury by accident which arose out of

and in the course of the employment.” Central State Hosp. v. Wiggers, 230 Va. 157, 159, 335

S.E.2d 257, 258 (1985). In light of the testimony of employer’s witnesses and claimant’s

inconsistent explanations for her fall, the commission could reasonably conclude that claimant

was speculating as to the cause of her fall and, therefore, she failed to sustain her burden of proof

by a preponderance of the evidence.

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

                                                                                            Affirmed.




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