Maryview Medical Center v. Kathy Ann Shirley ( 1996 )


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  •                     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.
    1
    On August 8, 1994, an insurance carrier, different from
    employer's carrier on December 17, 1992, provided workers'
    compensation coverage to employer.
    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
    2
    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.
    3
    Accordingly, we affirm the commission's decision.
    Affirmed.
    4
    

Document Info

Docket Number: 1735951

Filed Date: 1/11/1996

Precedential Status: Non-Precedential

Modified Date: 4/18/2021