                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Frank and Clements


JIMMY RAY FISHER, DECEDENT,
 ESTATE OF JIMMY RAY FISHER AND
 JERRY FISHER
                                             MEMORANDUM OPINION*
v.   Record No. 1598-01-1                         PER CURIAM
                                               OCTOBER 23, 2001
TIDEWATER APPLICATORS, INC. AND
 THE PMA INSURANCE GROUP


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Jerry Richard Fisher, pro se, on brief), for
             appellants.

             (Arthur T. Aylward; Midkiff, Muncie & Ross,
             P.C., on brief), for appellees.


     Jimmy Ray Fisher, decedent ("Jimmy Ray"), the Estate of

Jimmy Ray Fisher, and Jerry Fisher ("Jerry") contend the

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

evidence failed to prove that Jimmy Ray's death occurred as the

result of an injury by accident arising out of his employment;

and (2) failing to address the deputy commissioner's ruling

limiting Jerry's testimony at the hearing.      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.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                  I.

     The parties stipulated that on March 17, 1999, Jimmy Ray

died while in the course of his employment.    Prior to his death,

Jimmy Ray had been treated for heart problems beginning as early

as 1993.   He suffered a heart attack in 1998, and subsequently

underwent quadruple coronary bypass surgery.   He took heart

medication and suffered from high blood pressure.   At the time

of his death, Jimmy Ray was still actively under treatment for

his heart condition.

     Michael Delaura, a sales representative for a manufacturer

of construction products, testified that on the morning of

March 17, 1999, he was working with a distributor, Doug Johnson,

of Tidewater Interior Products.    Delaura saw Jimmy Ray that

morning at the counter of Tidewater Interior Products.    Five to

six minutes later, Delaura saw Jimmy Ray slumped over in the

back of the bed of his truck.

     Jerry, Jimmy Ray's brother, testified that on March 17,

1999, at approximately 9:00 a.m., he received a telephone call

and was told that Jimmy Ray had been found dead with $1,300 in

his pocket.   Jerry testified that he did the following upon

learning of his brother's death:

           When I heard this I went down to Tidewater
           Interiors and saw the truck, and I saw Jim
           Ray's body. The policeman wouldn't let me
           immediately go over to see Jim Ray, and he
           sent me over to stand by the Tidewater
           Applicator's truck. There were a bunch of
           trash bags, black trash bags of construction

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             debris in the back of the truck, and there
             were about four buckets of sto(?) that weigh
             70 pounds in the front of the bed of the
             truck.

Jerry testified that he did not know how the buckets got onto

the truck bed.    He stated that Jimmy Ray "had gone down there to

pick up 10 buckets, and he'd gone down by himself."    When asked

whether someone else could have put the buckets on the truck,

Jerry stated, "Well, I---I don't see how that could be, because

he died on top of the truck."

     When asked by the deputy commissioner what he could relate

about Jimmy Ray's death, Jerry stated, "I told you.    I went down

there, saw the truck, saw him lying on the ground, on the

pavement."    Jerry admitted that there were forklifts available

in the warehouse where Jimmy Ray died.    Jerry did not know if

the buckets had been loaded by a forklift.    Jimmy Ray was

already deceased when Jerry arrived at the scene.    Jerry did not

request an autopsy.

     Jimmy Ray's death certificate, signed by his cardiologist,

Dr. Howard C. Steier, listed the immediate cause of death as

"Ischemic Heart Disease."    No other medical documents addressed

the cause of Jimmy Ray's death.

     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.     Pinkerton's, Inc. v. Helmes, 242

Va. 378, 380, 410 S.E.2d 646, 647 (1991).    "Whether an injury


                                 - 3 -
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 claimant argues that the commission should have

accorded him a presumption that Jimmy Ray's death arose out of

his employment based on the rule set forth in Sullivan v.

Suffolk Peanut Co., 171 Va. 439, 199 S.E. 504 (1938):

                  Where an employee is found dead as a
             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 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.

Id. at 444, 199 S.E. at 506.    The claimant, in his brief, agrees

with the commission that the "dispositive question is whether

the 'death presumption' applies."

     The commission found that the evidence failed to prove that

Jimmy Ray's death resulted from an accident.    In addition, the

commission found that the death presumption did not apply in

this case.

     Here, unlike Sullivan, no evidence established that Jimmy

Ray was found dead as the result of an accident at his place of

work or nearby at a place where his duties may have called him.

The fact that Jimmy Ray was found dead on his truck, which

                                 - 4 -
contained various items, did not prove that his death occurred

as the result of an accident.   The only evidence concerning the

cause of Jimmy Ray's death was the death certificate, which

showed that his death resulted from ischemic heart disease.     As

the commission noted, any conclusion that Jimmy Ray died as a

result of lifting bags of stucco cement "would be 'speculation

and surmise.'"

     Based upon this record, the commission did not err in

finding that the death presumption did not apply and that Jerry

failed to prove that Jimmy Ray's death resulted from an injury

by accident arising out of his employment.

                                 II.

     Jerry contends the commission erred in refusing to address

the deputy commissioner's refusal to allow Jerry to testify (1)

that he occasionally worked with Jimmy Ray, (2) regarding the

difficulty Jimmy Ray endured in lifting seventy-pound buckets of

stucco cement onto the bed of employer's truck, (3) that Jimmy

Ray was a Vietnam veteran, and (4) that Jimmy Ray worked hard

and always did his duty.

     The record does not establish that Jerry proffered this

testimony to the deputy commissioner for consideration.    In

addition, the transcript of the hearing does not show that Jerry

objected to the deputy commissioner's rulings regarding the

matters about which Jerry would be permitted to testify.

Accordingly, we will not consider this issue for the first time

                                - 5 -
on appeal.   Rule 5A:18.   Moreover, any error in not allowing

such testimony was harmless, because the testimony was not

relevant or material to the issues before the commission.

     For the reasons stated, we affirm the commission's

decision.

                                                          Affirmed.




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