                      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."
                                - 2 -
     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
                                - 3 -
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.


                                 - 4 -
