                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


PENNSYLVANIA NATIONAL SECURITY
INSURANCE COMPANY

v.         Record No. 1764-95-1         MEMORANDUM OPINION *
                                             PER CURIAM
RONALD J. KUBESH,                         FEBRUARY 6, 1996
EASTERN METAL PRODUCTS & FABRICATORS, INC.
AND GLOBE INDEMNITY COMPANY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Calvin W. Fowler, Jr.; Kimberly A.
           Satterwhite; Williams, Mullen, Christian &
           Dobbins, on briefs), for appellant.

           (William C. Walker; Donna White Kearney;
           Taylor & Walker, on brief), for appellees
           Eastern Metal Products & Fabricators, Inc.
           and Globe Indemnity Company.

           No brief for appellee Ronald J. Kubesh.



     Pennsylvania National Security Insurance Company (Penn

National) contends that the Workers' Compensation Commission

(commission) erred in finding that Ronald J. Kubesh (claimant)

sustained a new injury to his right ankle caused by his June 21,

1994 compensable injury by accident.   Penn National contends that

claimant sustained a change in condition causally related to his
                                                            1
initial compensable industrial injury of August 10, 1993.       Upon
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      The deputy commissioner found that claimant sustained a new
injury by accident arising out of his employment on June 21,
1994. Penn National did not appeal this finding to the full
commission. Therefore, the full commission did not err in ruling
that this finding became the law of the case. Accordingly, this
finding is not reviewable on appeal.
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.

     On appeal, we construe 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).

"The Commission's findings of fact are binding on appeal where

supported by credible evidence."       Board of Supervisors v. Martin,

3 Va. App. 139, 146, 348 S.E.2d 540, 543 (1986).
     On August 10, 1993, claimant sustained a compensable injury

by accident to his right ankle and knee.      Dr. Thomas Stiles,

claimant's treating orthopedic surgeon, diagnosed a tear of the

deltoid ligament at the ankle, a tear of the distal tibial fibula

syndesmosis, and a high proximal fracture of the fibula with

avulsion type injury to the deltoid ligament.        Claimant underwent

open reduction and external fixation surgery.        Claimant received

temporary total disability benefits from August 19, 1993 through

February 20, 1994.   On February 21, 1994, claimant returned to

work, but he was not able to carry out all of his pre-injury

duties.   While working, claimant had to wear a high-top shoe with

a special arch and a separate ankle brace.

     By April 1994, Dr. Stiles reported that claimant was doing

fairly well, that his ankle was stable, and that the swelling was

gradually subsiding.   On June 1, 1994, claimant complained to Dr.

Stiles of recurrent bouts of swelling.      Claimant did not complain



                                   2
about instability.

     Claimant testified that, on June 21, 1994, while in the

course of his employment, he climbed a ladder, and as he stepped

over a brace and onto staging with his left foot, he felt a sharp

pain in his right ankle. 2   On June 30, 1994, Dr. Stiles examined

claimant and diagnosed an acute sprain related to the June 21,

1994 incident.    On September 6, 1994, Dr. Stiles noted that

claimant "has a definite valgus formation of his ankle when he

ambulates without his brace."    Dr. Stiles opined that claimant

"definitely has increased damage to his deltoid ligament with his

last injury, and will definitely have permanent disability."

After the June 21, 1994 incident, claimant could not perform

field work.    As a result, his weekly wage was reduced from $600

to $404.50.
     An aggravation of a pre-existing condition must occur under

circumstances that would not amount to a new compensable injury

by accident.     Leonard v. Arnold, 218 Va. 210, 214, 237 S.E.2d 97,

100 (1977).    A new injury "must, in itself, satisfy each of the

requirements for an 'injury by accident arising out of . . . the

employment.'"     First Federal Savings & Loan v. Gryder, 9 Va. App.

60, 63, 383 S.E.2d 755, 757-58 (1989).

     In holding Penn National liable for benefits related to

claimant's June 21, 1994 injury by accident, the commission found
     2
      At various times before June 21, 1994, claimant suffered
from ankle pain and swelling caused by turning or shifting his
weight.



                                   3
as follows:
              The evidence in this case shows that the
            claimant reinjured and aggravated his right
            ankle on June 21, 1994, but in an accident
            independently compensable under the Worker's
            Compensation Act. The medical records of Dr.
            Stiles show that it was the second accident
            with the subsequent structural and pathologic
            changes in the right ankle that produced the
            increased injury and the loss of wage earning
            capacity.


     Dr. Stiles's opinions and claimant's testimony provide

credible evidence to support the commission's finding of a new

injury, independently compensable, without regard to claimant's

prior injury of August 10, 1993.       Dr. Stiles opined, without

contradiction, that claimant sustained increased damage to his

deltoid ligament as a result of the June 21, 1994 injury by

accident.   Based upon this record, the commission did not err in

holding Penn National liable for benefits caused by this new

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

                                                            Affirmed.




                                   4
