                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, * Judge Elder and
          Senior Judge Duff
Argued at Alexandria, Virginia


CARPET PALACE, INC. AND NATIONWIDE
 MUTUAL INSURANCE COMPANY
                                             OPINION BY
v.   Record No. 0706-97-4       CHIEF JUDGE JOHANNA L. FITZPATRICK
                                          JANUARY 20, 1998
PAUL L. SALEHI


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Benjamin J. Trichilo (Trichilo, Bancroft,
           McGavin, Horvath & Judkins, on brief), for
           appellants.

           No brief or argument for appellee.



     Carpet Palace, Inc. and Nationwide Mutual Insurance Company

(collectively "employer") appeal the Workers' Compensation

Commission's decision awarding benefits to Paul L. Salehi

("claimant").    Employer argues the commission erroneously

concluded that:   (1) claimant's back injury was compensable

despite his repeated failure to comply with lifting restrictions;

and (2) claimant adequately marketed his residual work capacity.

 For the following reasons, we reverse the commission's decision.

                                  I.

     "[W]e review the evidence in the light most favorable to the

prevailing party."    R.G. Moore Bldg. Corp. v. Mullins, 10 Va.

App. 211, 212, 390 S.E.2d 788, 788 (1990).    "Factual findings of

     *
      On November 19, 1997, Judge Fitzpatrick succeeded Judge
Moon as chief judge.
the . . . [c]ommission will be upheld on appeal if supported by

credible evidence."    James v. Capitol Steel Constr. Co., 8 Va.

App. 512, 515, 382 S.E.2d 487, 488 (1989).

       Claimant has been the owner and president of Carpet Palace,

Inc. since 1976.    On November 14, 1977, he lifted a heavy roll of

carpeting and suffered a compensable back injury, which

ultimately resulted in a settlement of $20,000 plus lifetime

medical benefits.   From 1977 through 1993, claimant sought

medical treatment on eight occasions for back pain following

heavy lifting at work.   He was hospitalized at least four times

for treatment of his back pain, and doctors performed at least

two surgical procedures.   After the first surgery in 1979,

claimant's doctors imposed restrictions on repetitive bending and

lifting over twenty-five pounds.
       On October 3, 1994, claimant moved a "large box of carpet

samples" and immediately felt pain in his back and into his right

leg.   In response to questions about this incident, claimant

acknowledged the restrictions:
          Q.   Did you have restrictions on your
          activities prior to October of 1994?
          A.   Yes, I was told, you know, not to lift
          more than 20, 25 pounds, Sir.
          Q.   So you weren't following your doctor's
          advice on the day of this incident?
          A.   It says try not to lift more than 20, 25
          and unfortunately I did that.


When asked about his history of back pain following heavy

lifting, claimant explained:    "Unfortunately I do the same thing

expecting different results."   Claimant's primary work


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obligations were bill paying and administrative jobs.   Lifting

boxes was outside the scope of his normal duties.

     Dr. Anthony Debs, the treating physician, opined that the

October 3, 1994 incident "aggravated a pre-existing condition."

Dr. Debs also expressed his view that "at this stage the

persevering symptoms are most probably related to the chronic

condition that he has been suffering from for the past 15-16

years."   Although Dr. Debs told claimant he could work eight

hours per day, claimant indicated that working more than four to

six hours a day aggravated his back.   As a result, claimant

testified that he was unable to work full duty and had to hire

another employee to perform part of his work.   Thus, his income

was decreased.
     On March 8, 1995, claimant was involved in an automobile

accident.    He sought treatment for back pain from Dr. G.R.

Mahryar, and he failed to tell Dr. Debs about this incident.

     On April 3, 1995, claimant filed his request for benefits

related to the October 3, 1994 incident.   After a hearing, the

deputy commissioner found that because Dr. Debs was unaware of

the car accident, "Dr. Debs' finding of disability is based upon

inaccurate and incomplete information provided to him by the

claimant."   He concluded "the claimant has failed to sustain his

burden of proof that any disability after the claimant's March 8,

1995 motor vehicle accident was causally related to the

claimant's compensable accident or aggravation of his




                                  3
pre-existing condition."    The deputy commissioner awarded

claimant medical benefits related to the incident, temporary

total disability benefits beginning October 28 through December

4, 1994, and temporary partial disability benefits from December

5, 1994 through March 7, 1995.   Claimant did not contest

termination of disability benefits as of March 7, 1995.

     On review, a majority of the commission affirmed the award,

finding:   (1) "claimant sustained a compensable injury by

accident on October 3, 1994," (2) "claimant adequately marketed

his residual capacity," and (3) "employer continues to be

responsible for medical treatment which is proven to be causally

related to the industrial accident."
                                 II.

     Employer argues that claimant did not sustain a compensable

injury by accident because his injury predictably resulted from

his failure to comply with ongoing medical restrictions.      We

agree.

     A worker may receive benefits related to an "injury by

accident arising out of and in the course of the employment."

Code § 65.2-101.   However, "[a]n injury by accident must be

unexpected to be compensable."    Dollar Gen. Store v. Cridlin, 22

Va. App. 171, 178, 468 S.E.2d 152, 155 (1996) (shoulder injury

was not expected result of deviation from restriction related to

breast cancer surgery).    "The basic and indispensable ingredient

of 'accident' is unexpectedness."      2 Arthur Larson, Workers'




                                  4
Compensation Law § 37.20 (1997).       "The definition of accident

generally assented to is . . . an event which, under the

circumstances, is unusual and not expected by the person to whom

it happens."    Reserve Life Ins. Co. v. Hosey, 208 Va. 568,

570-71, 159 S.E.2d 633, 635 (1968) (citation omitted) (knee

injury during door-to-door survey was unexpected).       Cf. L.B.

Priester & Son v. McGee, 106 So.2d 394, 398 (Miss. 1958)

(claimant's "expectation of a probable second heart attack [was

not] so strong as to strip the occurrence of its accidental

character").
     Additionally, "[a]n accident is an event which creates an

effect which is not the natural or probable consequence of the

means employed and is not intended, designed, or reasonably

anticipated."    Lynchburg Foundry Co. v. Irvin, 178 Va. 265, 271,

16 S.E.2d 646, 648 (1941) (citation omitted) (toe ulceration from

work shoe and resultant foot amputation were unexpected).

Although "few people intentionally persist in a line of conduct

that expectedly results in personal injury . . . such cases can

be found."   Larson, supra § 38.83(f).      See Capers v. Flautt, 407

S.E.2d 660, 662 (S.C. Ct. App. 1991) (claimant's contact

dermatitis was "an event which [claimant] could anticipate given

his past experience" and was not a compensable injury by

accident); Ernest Waters Constr. Co. v. Mills, 51 So.2d 180, 181

(Fla. 1951) (claimant's dermatitis was not compensable where it

was "activated [three times] by neglect on his part to obey his



                                   5
doctor's instructions").

     In the instant case, claimant testified that he expected he

would not hurt his back when he lifted the heavy box of carpet

samples on October 3, 1994.    However, on at least eight prior

occasions, claimant had required treatment for back pain after

lifting heavy items at work.    Despite his experience, he did "the

same thing expecting different results."    Additionally, claimant

knew that his doctor had restricted him from lifting more than

twenty-five pounds, and he knew that the lifting restriction was

intended to prevent exactly the type of injury that occurred.      He

chose to ignore his doctor's orders and lifted a heavy box.    The

resultant back injury was a predictable consequence of claimant's

voluntary defiance of the lifting restriction.
     The Workers' Compensation Act does not contemplate benefits

for injuries voluntarily inflicted.    Claimant's injury was the

expected result of an activity that violated the doctor's

specific restrictions and does not constitute an injury by

accident. 1   For this reason we hold that claimant's October 3,
     1
      The Workers' Compensation Commission has denied
compensation to workers whose disregard of medical restrictions
resulted in predictable injuries. "[C]laimant should have
reasonably anticipated the result that her strenuous work would
cause. We conclude that her [back] injury is the result of that
work, which was done in specific violation of restrictions placed
upon her by her doctor. . . . [C]laimant incurred no injury by
accident." Taylor v. Independent Home Health Care, File No.
1701061 (Workers' Comp. Comm'n Oct. 13, 1995). Accord Ellis v.
City of Norfolk, 68 O.I.C. 47, 52 (1989) (claimant ignored
doctor's post-hospitalization orders and "should have reasonably
anticipated the result . . . . As a consequence, [his]
application must be . . . denied"); Miller v. Dixon Lumber Co.,
67 O.I.C. 71, 74 (1988) ("claimant returned to a type of work



                                  6
1994 back injury was not compensable, and we reverse the

commission's award. 2

                                             Reversed.




which the attending psychiatrist had advised him not to do and
. . . he predictably experienced an aggravation of his
post-traumatic stress disorder. . . . [S]ince this was the
expected result of the employee's activity . . . the incident is
not accidental in nature"); Bragg v. Buchanan Gen. Hosp., 59
O.I.C. 30, 32-33 (1980) (claimant "chose to ignore" doctors'
instructions to stay off her leg, and she "clearly did not
sustain an accidental injury . . . since the results of the
activity engaged in were the expected results of that activity");
Dobbins v. Contractors Equip. & Supply Co., 58 O.I.C. 104, 106
(1979) ("the resulting [back] strain was the expected result of
the activity engaged in and as such did not constitute an injury
by accident as that term is defined in the compensation law").
See also Brewer v. Westmoreland Coal Co., 70 O.I.C. 112 (1991)
(doctor's suggestion that claimant seek employment outside the
coal mine area was not a medical order, and claimant's back
injury was not a predictable result of claimant's continued
employment in a coal mine).
     2
      Because we reverse on the issue of injury by accident, we
do not reach employer's additional arguments.




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