COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Koontz, Bray and Senior Judge Hodges

RUTH ANN JONES (WIFE),
SUSAN D. JONES (DAUGHTER), AND
ESTATE OF JOHNNIE L. JONES (DECEASED)

v. Record No. 0005-95-2 MEMORANDUM OPINION
PER CURIAM
LOUISE OBICI MEMORIAL HOSPITAL MAY 16, 1995

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

(Annette Miller; Parker, Pollard & Brown, on brief),
for appellants.

(George J. Dancigers; Colleen T. Dickerson; Heilig,
McKenry, Fraim & Lollar, on brief), for appellee.

Ruth Ann Jones, wife, Susan D. Jones, daughter, and the
Estate of Johnnie L. Jones (deceased) (hereinafter collectively
referred to as "appellants") contend that the Workers'
Compensation Commission erred in finding that the evidence did
not prove that Johnnie Jones' April 27, 1992 heart attack arose
out of his employment with Louise Obici Memorial Hospital. 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. 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). A
finding of the commission that an injury did or did not arise out
of the employment is a mixed finding of law and fact and is
properly reviewable on appeal. City of Richmond v. Braxton, 230
Va. 161, 163-64, 335 S.E.2d 259, 261 (1985).
In order to recover, a claimant must show that he suffered
an injury by accident "arising out of and in the course of his
employment." Code 65.2-101. "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). Unless we can say as a matter of law that the
appellants' evidence sustained their burden of showing that
Jones' heart attack arose out of his employment on April 27,
1992, the commission's findings are binding and conclusive upon
us. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
In holding that the evidence did not prove that Jones' heart
attack arose out of his employment, the commission found as
follows:
After careful review of the record the
Full Commission on review finds that the
evidence fails to establish that the
claimant's fatal heart condition arose out of
his employment. There is no evidence that
the decedent was engaged in any unusual or
strenuous work task prior to being stricken.
For approximately 15 to 20 minutes the
claimant waited for the steam pressure to
decrease. In addition the medical evidence
fails to establish any causal connection
between the claimant's employment and his
death. The reports indicate only severe
atherosclerosis.
Based upon the lack of any medical evidence causally
relating Jones' work activity on April 27, 1992 to his heart
attack, coupled with the medical evidence indicating that Jones
suffered from severe atherosclerosis, we cannot say as a matter
of law that the appellants' evidence sustained their burden of
proving that Jones' heart attack arose out of his employment.
Moreover, the testimony of Jones' co-worker, Verlin E. Bright,
supports the commission's finding that there was no evidence that
Jones engaged in any unusual or strenuous work prior to his heart
attack.
Accordingly, we affirm the commission's decision.
Affirmed.

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