COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

NATIONAL FRUIT PRODUCT COMPANY, INC. 

AND 

LIBERTY MUTUAL FIRE INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0704-97-3 PER CURIAM 

 AUGUST 5, 1997 

BETH WINTERS 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Beth M. Coyne; Fowler, Griffin, Coyne & 

Coyne, on briefs), for appellants. 

 (George L. Townsend; Chandler, Franklin & 

O'Bryan, on brief), for appellee. 

 National Fruit Product Company, Inc. and its insurer 

(hereinafter collectively referred to as "employer") contend that 

the Workers' Compensation Commission (commission) erred in 

finding that (1) Beth Winters' claim, filed on May 29, 1996 and 

alleging an injury on March 13, 1995, was not barred by the 

doctrine of res judicata; and (2) Winters proved she sustained an 

injury by accident arising out of and in the course of her 

employment on March 13, 1995. 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. 

 

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

designated for publication. 
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Res Judicata

Res judicata applies "where there is a valid, personal 

judgment obtained by a defendant on the merits of an action. The 

judgment bars relitigation of the same cause of action, or any 

part thereof which could have been litigated between the same 

parties and their privies." K & L Trucking Co. v. Thurber, 1 Va. 

App. 213, 219, 337 S.E.2d 299, 302 (1985). 

 The commission found that Winters' May 29, 1996 application 

for compensation was not barred by the doctrine of res judicata. 

 The May 29, 1996 application presented the issue whether Winters 

sustained an injury by accident arising out of and in the course 

of her employment on March 13, 1995. The commission found that 

this issue was not previously litigated and determined as to 

these parties. Winters' earlier application, filed on April 20, 

1995, alleged an injury by accident occurring on March 2, 1995. 

The record established that the two applications dealt with two 

different alleged industrial accidents. Therefore, the 

commission did not err in finding that the doctrine of res

judicata did not bar it from considering Winters' May 29, 1996 

application. 

Injury by Accident

 Winters testified that on March 13, 1995, she was in the 

warehouse stacking forty-pound boxes containing bottles of tea: 

 And approximately 5:00 I picked one up and I 

don't know if I twisted or what, but I felt 

intense pain in my lower back, a 

popping. . . . It was just right in my 

spine, my low -- lower spine. And got really 
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light-headed and felt like I was going to 

pass out. . . . I laid over top of the 

pallet and just told all of the workers that 

were there that I couldn't do it, I couldn't 

work. 

 "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). Winters' testimony, which was generally 

corroborated by the medical histories, provides credible evidence 

to support the commission's finding that she proved an 

identifiable incident resulting in a sudden mechanical change in 

her body on March 13, 1995. Thus, that finding is conclusive on 

this appeal. See James v. Capitol Steel Constr. Co., 8 Va. App. 

512, 515, 382 S.E.2d 487, 488 (1989). Although Winters had 

experienced back problems prior to the March 13, 1995 incident, 

credible evidence supports the commission's conclusion that "she 

felt a sudden pain on March 13, 1995, which did not compare to 

her prior soreness and which precipitated her disability and an 

ongoing course of medical treatment." 

 In rendering its decision, the commission considered the 

medical histories and Winters' recorded statement, and the 

commission resolved any inconsistencies between this evidence and 

Winters' testimony in favor of Winters. "In determining whether 

credible evidence exists, the appellate court does not retry the 
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facts, reweigh the preponderance of the evidence, or make its own 

determination of the credibility of the witnesses." Wagner 

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 

(1991). "The fact that there is contrary evidence in the record 

is of no consequence if there is credible evidence to support the 

commission's finding." Id. 

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

 

 Affirmed.