                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Annunziata and Overton


EASTERN STATE HOSPITAL
                                                 MEMORANDUM OPINION *
v.   Record No. 2211-98-1                            PER CURIAM
                                                  JANUARY 19, 1999
TENIA P. ROBERSON


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Mark L. Earley, Attorney General; Judith W.
           Jagdmann, Deputy Attorney General; Gregory E.
           Lucyk, Senior Assistant Attorney General;
           Scott J. Fitzgerald, Assistant Attorney
           General, on brief), for appellant. Appellant
           submitting on brief.
           (Johnny C. Cope; Cope, Olson & Yoffy, on
           brief), for appellee. Appellee submitting on
           brief.



     Eastern State Hospital ("employer") appeals a decision of

the Workers' Compensation Commission ("commission") awarding

benefits to Tenia P. Roberson ("claimant").   Employer contends

that the commission erred in finding that (1) claimant proved

that she sustained an injury by accident arising out of her

employment on November 13, 1997; (2) the November 13, 1997

incident resulted in a new injury, rather than a non-compensable

aggravation of claimant's March 28, 1995 injury; and (3)

claimant's testimony was credible.   Finding no error, we affirm.

     I. and III.

     On appeal, we are bound by the factual findings of the

     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
commission if they are supported by credible evidence in the

record.   See Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va.

App. 503, 504, 339 S.E.2d 916, 916 (1986); Code § 65.2-706.

However, "[w]hether an injury arises out of the employment is a

mixed question of law and fact and is reviewable by the appellate

court."   Plumb Rite Plumbing Serv. v. Barbour, 8 Va. App. 482,

483, 382 S.E.2d 305, 305 (1989).   "The phrase arising 'out of'

refers to the origin or cause of the injury."   County of
Chesterfield v. Johnson, 237 Va. 180, 183, 376 S.E.2d 73, 74

(1989).   To prevail, claimant must "show that the conditions of

the workplace . . . caused the injury."   Barbour, 8 Va. App. at

484, 382 S.E.2d at 306.

     In ruling that claimant's injuries arose out of her

employment, the commission found as follows:
               The claimant's accident occurred when
          she collided with a co-worker in a hallway on
          the employer's premises. Although the
          evidence regarding the severity of the
          collision is in conflict, a resolution of
          that conflict is not necessary. The thrust
          of the employer's argument on review is that
          this type of accident can occur in any
          setting, whether at work or outside the
          workplace, and that it is, therefore, not due
          to a risk that arises from the workplace.
               Contrary to the employer's position, the
          issue is not whether the accident is of the
          type that occur outside the workplace; the
          issue is whether the workplace, in the
          particular situation at hand, exposed the
          claimant to the risk of injury. In this
          case, the injury was caused by the
          inattentiveness of a co-employee. Accidents
          due to the negligence of co-workers
          historically have been found to arise out of
          the employment.



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     Claimant testified that Nurse Alice Gibilaro was walking

briskly, with her head turned away from claimant, and collided

with claimant as she spoke to another employee in a hallway.

Gibilaro corroborated claimant's evidence, explaining that, while

en route to another ward, someone called her name in reference to

a job-related issue, and she turned her head and "walked into"

claimant.   Thus, credible evidence supports the commission's

factual findings and related conclusion that claimant's injuries

were caused by an actual risk of employment.   See Goodyear Tire &

Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437

(1987).

                                II.

     In rejecting employer's argument that on November 13, 1997

claimant suffered a non-compensable aggravation of her March 28,

1995 injury rather than a new injury, the commission made the

following factual findings:
          [T]he claimant had been under medical
          treatment for her March 28, 1995 injury until
          May, 1996. She then went without treatment
          until August, 1997, when she returned to Dr.
          [Jeffrey D.] Moore complaining of right leg
          pain and numbness that apparently was related
          to her chronic back condition. Dr. Moore saw
          the claimant again on September 5, 1997, at
          which time the claimant's symptoms had not
          worsened.
               The claimant had no further medical
          treatment until she was seen at FirstMed
          following her accident on November 13, 1997.
           At that time, in addition to the right leg
          symptoms, the claimant had back pain and
          muscle spasms. The history taken at the time
          was that the claimant was bumped into at
          work, which caused her to suddenly twist her
          back. This caused sharp pain in her lower


                               - 3 -
          lumbar area as well as muscle spasm. The
          claimant continued to treat thereafter with
          FirstMed, and later returned to Dr. Moore.
          He opined that the claimant had aggravated
          her pre-existing back condition in the
          accident of November 13, 1997.


     The medical records of FirstMed and Dr. Moore, coupled with

claimant's testimony, provide credible evidence to support the

commission's factual findings.    Thus, we will not disturb those

findings on appeal.   Based upon those findings, the commission

could reasonably conclude that claimant sustained a new injury by

accident at work on November 13, 1997.   Furthermore, Dr. Moore's

opinion constitutes credible evidence to support the commission's

finding that claimant's new accident on November 13, 1997 caused

an aggravation of her pre-existing condition, for which employer

is responsible.   See First Fed. Sav. & Loan Ass'n 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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