COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
CAROLYN J. PATRICK
MEMORANDUM OPINION*
v. Record No. 0201-99-3 PER CURIAM
JUNE 15, 1999
TENNECO PACKAGING AND PACIFIC
EMPLOYERS INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(George L. Townsend; Monica S. Lewallen;
Chandler, Franklin & O'Bryan, on briefs), for
appellant.
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on brief),
for appellees.
Carolyn J. Patrick contends that the Workers' Compensation
Commission erred in finding that she failed to prove she sustained
a new injury by accident on February 11, 1997. 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. See Rule 5A:27.
On April 13, 1995, Patrick sustained a compensable lower back
injury while working as a process specialist for Amoco Foam
Products Company, which was purchased by Tenneco Packaging in
1996. On June 20, 1997, the commission approved a compromise
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
settlement between Patrick and Amoco/Tenneco, which, with certain
exceptions, "released and discharged [the employer and its
insurer] from any and all liability and responsibility to
[Patrick] for any and all claims arising out of or in the course
of [Patrick's] employment." Patrick concedes that if the evidence
proved she sustained a change in condition rather than a new
injury by accident on February 11, 1997, her current claim for
disability is barred by her compromise settlement of the April
1995 injury.
On August 11, 1997, Patrick filed with the commission a claim
for benefits alleging that she sustained a new injury to her lower
back on February 11, 1997. Patrick testified that on February 11,
1997, she felt lower back pain while trying to push a cart after
it had become stuck. Patrick testified that she did not report
her injury at that time because she "felt it was the same thing as
before." Patrick also testified that she had suffered from
intermittent back pain since her April 1995 injury.
Sandy Drummonds, a production team leader, testified that
Patrick advised him that her doctor diagnosed her lower back
problems as "part of her original injury." Thomas Smith,
Patrick's supervisor, testified that on March 16, 1997, Patrick
said her old back injury had "flared up on her." In addition,
Sandy Sperry, the human resources coordinator, testified that
Patrick said her February 11, 1997 injury "was just the same old
thing."
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The evidence also proved that Patrick sought treatment from
Dr. William J. Bender, who had been treating Patrick since the
April 1995 injury. Dr. Bender recorded the following history:
On 2/11/97, she was doing her normal job
which had involved pushing a cart onto a
frame that had gotten stuck. She had to
pull it to release. She felt her back
irritate a little bit but this is not
uncommon for her. She has dealt usually
very well with incidents of re-irritation of
the back. This particular one seemed to get
worse over the next several days.
Dr. Bender diagnosed a "[r]e-aggravation of low back strain" and
noted that Patrick had suffered from left leg pain in the past
as well as back pain.
In response to written questions, Dr. Bender indicated that
he agreed the February 11, 1997 incident was a recurrence or
exacerbation of Patrick's pre-existing lower back problems and did
not constitute a new and separate injury. In his deposition, Dr.
Bender testified that on February 11, 1997, Patrick experienced a
re-aggravation of her chronic lumbar strain that had initially
occurred on April 13, 1995. He also stated she had "no new
mechanism of injury."
"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
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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
v. Martin, 3 Va. App. 139, 142, 348 S.E.2d 540, 541 (1986).
Patrick's testimony, the testimony of employer's witnesses,
and Dr. Bender's unequivocal opinions support the commission's
conclusion that Patrick's post-February 11, 1997 lower back pain
and disability did not result from a new compensable injury by
accident. The evidence proved Patrick never fully recovered from
the 1995 lower back injury and continued to experience chronic
pain and exacerbations of her back condition. Credible medical
evidence proved that the February 11 event caused a
"[r]e-aggravation of [Patrick's existing] low back strain" that
was merely an ever worsening of her original injury.
Based upon this record, we cannot find as a matter of law
that Patrick's evidence proved that the February 11, 1997 incident
constituted a new injury by accident.
For these reasons, we affirm the commission's decision.
Affirmed.
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Carolyn J. Patrick v. Tenneco Packaging
Combined Opinion