COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

MARYVIEW MEDICAL CENTER 

AND 

VIRGINIA INSURANCE RECIPROCAL 

v. 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.1 Claimant 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1On 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 antiinflammatory 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 preexisting 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. 
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 Accordingly, we affirm the commission's decision. 

 Affirmed.