COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bray and Senior Judge Overton
THE GOODYEAR TIRE & RUBBER COMPANY AND
LIBERTY INSURANCE CORPORATION
MEMORANDUM OPINION*
v. Record No. 3253-01-3 PER CURIAM
APRIL 9, 2002
LYNN WADE McGINNIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James A. L. Daniel; Elizabeth B. Carroll;
Daniel, Vaughan, Medley & Smitherman, P.C.,
on briefs), for appellants.
(Stephen G. Bass; Carter, Craig, Bass,
Blair & Kushner, P.C., on brief), for
appellee.
The Goodyear Tire & Rubber Company and its insurer
(hereinafter referred to as "employer") contend the Workers'
Compensation Commission erred in finding that Lynn Wade McGinnis
(claimant) proved that (1) he sustained an injury by accident
arising out of and in the course of his employment on January
15, 2000; and (2) a causal connection between his injury by
accident and his left knee condition and resulting disability.
Pursuant to Rule 5A:21, claimant raises the additional question
of whether the commission erred in finding that he had a duty to
market his residual work capacity, but failed to do so. Upon
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
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.
I. Injury by Accident
"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). Factual findings made by the commission
will be upheld on appeal if supported by credible evidence. See
James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382
S.E.2d 487, 488 (1989).
In holding that claimant sustained his burden of proving an
injury by accident, the commission found as follows:
The claimant testified that on January 15,
2000, he was training two new mill men. He
was working with a 90-pound rubber ball,
which kicked backwards and pushed him back,
causing pain in his left knee. The
employer's written statement identifies many
discrepancies between the claimant's hearing
testimony and the other evidence. The
Deputy Commissioner, aware of the
inconsistencies, found the claimant
credible. On this record, we will not
reverse her finding.
Claimant's testimony provides credible evidence to support
the commission's findings. It is well settled that credibility
determinations are within the fact finder's exclusive purview.
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Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363
S.E.2d 433, 437 (1987). The commission as fact finder, weighed
the evidence, and resolved any inconsistencies in claimant's
favor. "In determining whether credible evidence exists, the
appellate court does not retry the 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).
II. Causation
"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).
"The actual determination of causation is a factual finding that
will not be disturbed on appeal if there is credible evidence to
support the finding." Ingersoll-Rand Co. v. Musick, 7 Va. App.
684, 688, 376 S.E.2d 814, 817 (1989).
In ruling that claimant sustained his burden of proving a
causal connection between his January 15, 2000 injury by
accident and his left knee condition and his disability
commencing April 27, 2000, the commission found as follows:
The Deputy Commissioner properly relied on
the opinions of Dr. [Paul] Settle and
Dr. [Kevin] Speer regarding causation.
Dr. Settle in his April 19, 2000, attending
physician's report opined that the
claimant's left knee condition was due to
the incident as described by the claimant.
Dr. Speer provided several attending
physician's reports that linked the cause of
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the claimant's condition to the January 15,
2000, incident.
The medical records and opinions of Drs. Settle and Speer
provide credible evidence to support the commission's findings
regarding causation and disability. "The fact that there is
contrary evidence in the record is of no consequence if there is
credible evidence to support the commission's findings."
Wagner, 12 Va. App. at 894, 407 S.E.2d at 35.
III. Marketing
"In determining whether a claimant has made a reasonable
effort to market his remaining work capacity, we view the
evidence in the light most favorable to . . . the prevailing
party before the commission . . . ." National Linen Serv. v.
McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). A
claimant has the burden of proving entitlement to benefits and
that he made a reasonable effort to procure suitable work and to
market his remaining work capacity. Great Atl. & Pac. Tea Co.
v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 (1987).
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 sole evidence of claimant's marketing efforts between
February 8, 2001, the date Dr. Speer released claimant to
light-duty work and March 8, 2001, the date of the hearing,
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consisted of claimant's testimony that he looked for work with
three employers. No evidence showed that claimant registered
with the Virginia Employment Commission. In addition, the
record does not show that he contacted employer to inquire about
light-duty work.
Based upon this record, we cannot find as a matter of law
that the commission erred in ruling that claimant failed to
prove that he adequately marketed his residual work capacity.
For these reasons, we affirm the commission's decision.
Affirmed.
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