                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


NATIONAL FRUIT PRODUCT COMPANY, INC.
AND
LIBERTY MUTUAL FIRE INSURANCE COMPANY
                                                MEMORANDUM OPINION *
v.   Record No. 0704-97-3                           PER CURIAM
                                                  AUGUST 5, 1997
BETH WINTERS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (Beth M. Coyne; Fowler, Griffin, Coyne &
            Coyne, on briefs), for appellants.

            (George L. Townsend; Chandler, Franklin &
            O'Bryan, on brief), for appellee.



     National Fruit Product Company, Inc. and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission (commission) erred in

finding that (1) Beth Winters' claim, filed on May 29, 1996 and

alleging an injury on March 13, 1995, was not barred by the

doctrine of res judicata; and (2) Winters proved she sustained an
injury by accident arising out of and in the course of her

employment on March 13, 1995.   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.   Rule 5A:27.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                           Res Judicata

     Res judicata applies "where there is a valid, personal

judgment obtained by a defendant on the merits of an action.    The

judgment bars relitigation of the same cause of action, or any

part thereof which could have been litigated between the same

parties and their privies."   K & L Trucking Co. v. Thurber, 1 Va.

App. 213, 219, 337 S.E.2d 299, 302 (1985).

     The commission found that Winters' May 29, 1996 application

for compensation was not barred by the doctrine of res judicata.
The May 29, 1996 application presented the issue whether Winters

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

of her employment on March 13, 1995.   The commission found that

this issue was not previously litigated and determined as to

these parties.   Winters' earlier application, filed on April 20,

1995, alleged an injury by accident occurring on March 2, 1995.

The record established that the two applications dealt with two

different alleged industrial accidents.   Therefore, the

commission did not err in finding that the doctrine of res
judicata did not bar it from considering Winters' May 29, 1996

application.

                        Injury by Accident

     Winters testified that on March 13, 1995, she was in the

warehouse stacking forty-pound boxes containing bottles of tea:
          And approximately 5:00 I picked one up and I
          don't know if I twisted or what, but I felt
          intense pain in my lower back, a
          popping. . . . It was just right in my
          spine, my low -- lower spine. And got really



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          light-headed and felt like I was going to
          pass out. . . . I laid over top of the
          pallet and just told all of the workers that
          were there that I couldn't do it, I couldn't
          work.


     "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).   Winters' testimony, which was generally

corroborated by the medical histories, provides credible evidence

to support the commission's finding that she proved an

identifiable incident resulting in a sudden mechanical change in

her body on March 13, 1995.   Thus, that finding is conclusive on

this appeal.   See James v. Capitol Steel Constr. Co., 8 Va. App.

512, 515, 382 S.E.2d 487, 488 (1989).   Although Winters had

experienced back problems prior to the March 13, 1995 incident,

credible evidence supports the commission's conclusion that "she

felt a sudden pain on March 13, 1995, which did not compare to

her prior soreness and which precipitated her disability and an

ongoing course of medical treatment."

     In rendering its decision, the commission considered the

medical histories and Winters' recorded statement, and the

commission resolved any inconsistencies between this evidence and

Winters' testimony in favor of Winters.   "In determining whether

credible evidence exists, the appellate court does not retry the



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facts, reweigh the preponderance of the evidence, or make its own

determination of the credibility of the witnesses."   Wagner

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35

(1991).   "The fact that there is contrary evidence in the record

is of no consequence if there is credible evidence to support the

commission's finding."   Id.

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


                                         Affirmed.




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