COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

EASTERN STATE HOSPITAL 

 MEMORANDUM OPINION*

v. Record No. 2211-98-1 PER CURIAM 

 JANUARY 19, 1999 

TENIA P. ROBERSON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Mark L. Earley, Attorney General; Judith W. 

Jagdmann, Deputy Attorney General; Gregory E. 

Lucyk, Senior Assistant Attorney General; 

Scott J. Fitzgerald, Assistant Attorney 

General, on brief), for appellant. Appellant 

submitting on brief. 

 (Johnny C. Cope; Cope, Olson & Yoffy, on 

brief), for appellee. Appellee submitting on 

brief. 

 Eastern State Hospital ("employer") appeals a decision of 

the Workers' Compensation Commission ("commission") awarding 

benefits to Tenia P. Roberson ("claimant"). Employer contends 

that the commission erred in finding that (1) claimant proved 

that she sustained an injury by accident arising out of her 

employment on November 13, 1997; (2) the November 13, 1997 

incident resulted in a new injury, rather than a non-compensable 

aggravation of claimant's March 28, 1995 injury; and (3) 

claimant's testimony was credible. Finding no error, we affirm. 

 I. and III. 

 On appeal, we are bound by the factual findings of the 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
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commission if they are supported by credible evidence in the 

record. See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. 

App. 503, 504, 339 S.E.2d 916, 916 (1986); Code § 65.2-706. 

However, "[w]hether 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 prevail, claimant must "show that the conditions of 

the workplace . . . caused the injury." Barbour, 8 Va. App. at 

484, 382 S.E.2d at 306. 

 In ruling that claimant's injuries arose out of her 

employment, the commission found as follows: 

 The claimant's accident occurred when 

she collided with a co-worker in a hallway on 

the employer's premises. Although the 

evidence regarding the severity of the 

collision is in conflict, a resolution of 

that conflict is not necessary. The thrust 

of the employer's argument on review is that 

this type of accident can occur in any 

setting, whether at work or outside the 

workplace, and that it is, therefore, not due 

to a risk that arises from the workplace. 

 Contrary to the employer's position, the 

issue is not whether the accident is of the 

type that occur outside the workplace; the 

issue is whether the workplace, in the 

particular situation at hand, exposed the 

claimant to the risk of injury. In this 

case, the injury was caused by the 

inattentiveness of a co-employee. Accidents 

due to the negligence of co-workers 

historically have been found to arise out of 

the employment. 
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 Claimant testified that Nurse Alice Gibilaro was walking 

briskly, with her head turned away from claimant, and collided 

with claimant as she spoke to another employee in a hallway. 

Gibilaro corroborated claimant's evidence, explaining that, while 

en route to another ward, someone called her name in reference to 

a job-related issue, and she turned her head and "walked into" 

claimant. Thus, credible evidence supports the commission's 

factual findings and related conclusion that claimant's injuries 

were caused by an actual risk of employment. See Goodyear Tire & 

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

(1987). 

 II. 

 In rejecting employer's argument that on November 13, 1997 

claimant suffered a non-compensable aggravation of her March 28, 

1995 injury rather than a new injury, the commission made the 

following factual findings: 

 [T]he claimant had been under medical 

treatment for her March 28, 1995 injury until 

May, 1996. She then went without treatment 

until August, 1997, when she returned to Dr. 

[Jeffrey D.] Moore complaining of right leg 

pain and numbness that apparently was related 

to her chronic back condition. Dr. Moore saw 

the claimant again on September 5, 1997, at 

which time the claimant's symptoms had not 

worsened. 

 The claimant had no further medical 

treatment until she was seen at FirstMed 

following her accident on November 13, 1997. 

 At that time, in addition to the right leg 

symptoms, the claimant had back pain and 

muscle spasms. The history taken at the time 

was that the claimant was bumped into at 

work, which caused her to suddenly twist her 

back. This caused sharp pain in her lower 
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lumbar area as well as muscle spasm. The 

claimant continued to treat thereafter with 

FirstMed, and later returned to Dr. Moore. 

He opined that the claimant had aggravated 

her pre-existing back condition in the 

accident of November 13, 1997. 

 The medical records of FirstMed and Dr. Moore, coupled with 

claimant's testimony, provide credible evidence to support the 

commission's factual findings. Thus, we will not disturb those 

findings on appeal. Based upon those findings, the commission 

could reasonably conclude that claimant sustained a new injury by 

accident at work on November 13, 1997. Furthermore, Dr. Moore's 

opinion constitutes credible evidence to support the commission's 

finding that claimant's new accident on November 13, 1997 caused 

an aggravation of her pre-existing condition, for which employer 

is responsible. See First Fed. Sav. & Loan Ass'n v. Gryder, 9 

Va. App. 60, 63, 383 S.E.2d 755, 757-58 (1989). 

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

 Affirmed.