Maryview Medical Center, et al v Kathy Ann Shirley

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COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Annunziata and Overton

MARYVIEW MEDICAL CENTER
AND
VIRGINIA INSURANCE RECIPROCAL

Vv. Record No. 1735-95-1 MEMORANDUM OPINION
PER CURIAM
KATHY ANN SHIRLEY JANUARY 11, 1996

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

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

No brief for appellee.

Maryview Medical Center ("employer") and its insurer,
Virginia Insurance Reciprocal, contend that the Workers'
Compensation Commission erred in finding that Kathy Ann Shirley
("claimant") sustained a compensable change in condition on
August 8, 1994, rather than a new injury by accident. Upon
reviewing the record and employer's brief, we conclude that this
appeal is without merit. Accordingly, we summarily affirm the
commission's decision. Rule 5A:27.

On December 17, 1992, claimant sustained a compensable back
injury while working for employer as a nurse. On August 8, 1994,
while working for employer, claimant felt back pain while

squatting to apply dressings to an obese patient.’ Claimant

"Pursuant to Code § 17-116.010 this opinion is not
designated for publication.

‘On August 8, 1994, an insurance carrier, different from
employer's carrier on December 17, 1992, provided workers'
compensation coverage to employer.

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stated that the back pain she experienced on August 8, 1994 was
similar to her previous back pain. 	When she experienced the back
pain on August 8, 1994, she was not exerting any force, lifting
any weight, or leaning over the patient. 	Claimant testified that
she had suffered from intermittent back pain since her December
17, 1992 injury.
In granting claimant's change in condition application, the
commission found as follows:
The medical records reflect on August 12,
1994, Dr. Wayne T. Johnson, M.D., wrote:
Mr. (sic) Shirley is seen today for
flare up of back pain which she
experienced Tuesday three days ago
while attempting to move a patient
that was fairly large. 	She
experienced a sudden onset of back
pain with some pain radiating into
her left lower extremity. 	This is
consistent with the discomfort that
she has had in the past.
Fortunately, with conservative
therapy including an anti-
inflammatory and rest, the pain has
dissipated and she has returned to
work.
I feel that this is an aggravation
of a preexisting condition and does
not represent a new problem.
On October 27, 1994, Dr. Johnson again noted "a flare up of
back pain she has experienced in the past." 	On November 8, 1994,
Dr. Johnson noted that the claimant was "out of work from October
26, 1994 to November 6, 1994 due to back pain and steroid
injections. 	This was due to a previous injury." 	An MRI on
January 11, 1995 was "unchanged in comparison to the prior

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examinations."
"In order to carry [the] burden of proving an 'injury by
accident,' a claimant must prove that the cause of [the] injury
was an identifiable incident or sudden precipitating event and
that it resulted in an obvious sudden mechanical or structural
change in the body." 	Morris v. Morris, 238 Va. 578, 589, 385
S.E.2d 858, 865 (1989).
[A]ggravation of an old injury or pre-
existing condition is not, per se, tantamount
to a "new injury." 	To be a "new injury" the
incident giving rise to the aggravation must
in itself, satisfy each of the requirements
for an "injury by accident arising out of
. . ." the employment.
First Federal Savings & Loan Ass'n v. Gryder, 9 Va. App. 60, 63,
383 S.E.2d 755, 757-58 (1989). 	"The Commission's finding of fact
that [a subsequent] injury was not a new accident is binding on
appeal if supported by credible evidence." 	Board of Supervisors
of Henrico Co. v. Martin, 3 Va. App. 139, 142, 348 S.E.2d 540,
541 (1986).
Claimant's testimony and the opinions expressed by Dr.
Johnson constitute credible evidence to support the commission's
finding that claimant's back pain and subsequent disability
resulted from an aggravation of her previously injured back,
rather than a sudden mechanical or structural change in her body.
Thus, credible evidence supports the commission's finding that
claimant's back problems resulted from a change in condition, not
a new injury by accident.

Accordingly, we affirm the commission's decision.

Affirmed.