                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Felton and Senior Judge Willis


STERLING R. BRICKEY, JR.
                                             MEMORANDUM OPINION*
v.   Record No. 1553-02-3                         PER CURIAM
                                               JANUARY 28, 2003
HUMPHREY'S, INC. AND
 TRANSCONTINENTAL INSURANCE COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (D. Allison Mullins; Lee & Phipps, P.C., on
             brief), for appellant.

             (Ramesh Murthy; J. Jasen Eige; Penn, Stuart &
             Eskridge, on brief), for appellees.


     Sterling R. Brickey, Jr. (claimant) contends the Workers'

Compensation Commission erred in finding that he failed to prove

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

course of his employment on January 9, 2001.     Upon reviewing the

record and the parties' briefs, we conclude that this appeal is

without merit.     Accordingly, we summarily affirm the

commission's decision.     Rule 5A:27.

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).      "In

order to carry [the] burden of proving an 'injury by accident,'


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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).    Unless we can say as a matter of law that

claimant's evidence sustained his burden of proof, the

commission's findings are binding and conclusive upon us.     See

Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d

833, 835 (1970).

     The commission ruled that claimant failed to prove he

sustained a mechanical or structural change in his body and,

therefore, he failed to establish a new compensable injury by

accident occurring on January 9, 2001.    In so ruling, the

commission found as follows:

             [Claimant] presented no medical evidence
             that the industrial incident on January 9,
             2001, caused a bodily change. Instead,
             Dr. [Neal A.] Jewell has related claimant's
             low back condition to his previous 1997
             injury. For example, he reported that the
             new MRI scan revealed degenerative changes
             similar to the ones already noted. On
             February 12, 2001, Dr. Jewell directly
             connected the claimant's ongoing symptoms to
             the injury of May 1997. There is no medical
             evidence to the contrary.

                  Dr. Jewell concluded that the claimant
             suffered an aggravation of his underlying
             degenerative disc disease. It is true that
             an aggravation of an old injury due to a new
             injury may be compensable. However, the new
             incident must still meet the requirements of
             an injury by accident. Without proving a
             mechanical or structural bodily change, the
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             claimant has failed to show an injury by
             accident.

                  We agree with claimant's argument that
             the employer must accept him with his
             predisposing physical weaknesses.
             Nonetheless, he still has the burden of
             proving that the employment activity caused
             a sudden, obvious injury. As stated, there
             is no medical evidence that the January 9,
             2001, incident caused a mechanical change in
             the claimant's back.

        In light of Dr. Jewell's opinions and the lack of any

compellingly countervailing medical evidence establishing that

claimant sustained a structural or mechanical change to his low

back as a result of the January 9, 2001 incident, we cannot find

as a matter of law that claimant's evidence met his burden of

proving he incurred a new compensable injury by accident on that

date.    "[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 Fed.

Savings and Loan v. Gryder, 9 Va. App. 60, 63, 383 S.E.2d 755,

757-58 (1989).

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

                                                            Affirmed.




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