COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Annunziata and Overton
KENNY'S CONSTRUCTION, INC.
AND
ERIE INSURANCE EXCHANGE MEMORANDUM OPINION *
PER CURIAM
v. Record No. 1627-96-3 DECEMBER 17, 1996
ROGER W. RICHARDS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Benjamin J. Trichilo; Trichilo, Bancroft,
McGavin, Horvath & Judkins, on briefs), for
appellants.
(Terry L. Armentrout, on brief), for
appellee.
Kenny's Construction, Inc. and its insurer (hereinafter
collectively referred to as "employer") contend that the Workers'
Compensation Commission ("commission") erred in (1) refusing to
consider employer's labor market survey received by the
commission after the record closed; (2) finding that Roger
Richards ("claimant") made a good faith effort to market his
residual work capacity; and (3) finding that claimant sustained
an injury by accident arising out of and in the course of his
employment on June 6, 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.
I. Labor Market Survey
The hearing in this case took place on December 13, 1995.
At the hearing, the deputy commissioner agreed to hold the record
open for thirty days to allow employer to file a labor market
survey with the commission. Pursuant to employer's January 10,
1996 request, the commission granted employer an extension until
January 26, 1996 within which to submit the labor market survey.
The commission received the survey on January 29, 1996, after
the record had closed. Consequently, the commission refused to
consider the survey as evidence.
The commission afforded employer ample time within which to
submit the survey as part of the record. Yet, the commission did
not receive the survey until after the record closed. Under
these circumstances, we cannot find that the commission abused
its discretion by refusing to consider the survey.
II. Marketing
In order to establish entitlement to benefits, a partially
disabled employee must prove that he has made a reasonable effort
to procure suitable work but has been unable to do so. Great
Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d
98, 101 (1987). "What constitutes a reasonable marketing effort
depends upon the facts and circumstances of each case." The
Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314,
318 (1993). We have discussed factors which the commission
should consider in deciding whether a claimant has made
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reasonable good faith efforts to market his remaining capacity:
(1) the nature and extent of employee's
disability; (2) the employee's training, age,
experience, and education; (3) the nature and
extent of employee's job search; (4) the
employee's intent in conducting his job
search; (5) the availability of jobs in the
area suitable for the employee, considering
his disability; and (6) any other matter
affecting employee's capacity to find
suitable employment.
National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d
31, 34 (1989) (footnotes omitted). In reviewing the commission's
findings, "we view the evidence in the light most favorable
to . . . the party prevailing before the commission." Id. at
270, 380 S.E.2d at 33.
So viewed, the evidence established that the claimant, a
thirty-nine-year-old carpenter with a ninth grade education,
registered with the Virginia Employment Commission on September
12, 1995 and contacted approximately five employers each week
thereafter. Claimant submitted a list of forty-four job
contacts. The medical record revealed that although Dr. Mark
Prager signed a note on June 17, 1995 releasing claimant to
return to work as of June 26, 1995, Dr. Prager also referred
claimant to Dr. Frederick Fox at that time. On June 28, 1995,
Dr. Fox opined that claimant was disabled from working. On
September 11, 1995, Dr. Fox indicated that claimant should be
matched with a rehabilitation counselor for consideration of
light-duty work. Claimant began his job search the next day.
Based upon this record, we cannot say as a matter of law
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that the commission erred in ruling that claimant had no duty to
market his residual capacity until after September 11, 1995 and
that he adequately marketed his residual capacity after that
date.
III. Injury by Accident
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).
Factual findings made by the commission 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 testified that on June 6, 1995, at approximately
2:15 p.m., while working at a job site at Great Oaks, he felt a
sudden tearing across his back while lifting a 600-pound
pre-fabricated wall onto a deck with his co-worker, Greg
Campbell. Claimant testified that he told his supervisor, Tim
Cubbage, about the accident shortly after it occurred. Claimant
also stated that he called the owner, Kenny Cubbage, the next
morning and informed Kenny Cubbage that he would not be coming
into work because of the accident.
On June 8, 1995, claimant sought medical treatment from
Dr. Prager. Dr. Prager recorded a history of claimant sustaining
a back injury at work on June 7, 1995 while lifting a
pre-fabricated wall. Claimant testified that Dr. Prager
incorrectly recorded the accident date. On June 28, 1995, Dr.
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Fox recorded a history consistent with claimant's description of
the accident.
Claimant's testimony conflicted in various respects with the
testimony of Campbell and the Cubbages, employer's witnesses.
The commission, after observing the demeanor of the witnesses and
reviewing the totality of the evidence, found claimant credible
and afforded greater weight to his testimony than to the contrary
accounts of employer's witnesses.
"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). It is
well settled that credibility determinations are within the fact
finder's exclusive purview. Goodyear Tire & Rubber Co. v.
Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987). In this
instance, the issue of whether claimant sustained an injury by
accident arising out of and in the course of his employment was
entirely dependent upon the credibility of the witnesses. The
commission, in considering the testimony of the witnesses, found
claimant's testimony, which was corroborated by the medical
histories, to be credible. We are bound by that finding.
"Although contrary evidence may exist in the record, findings of
fact made by the commission will be upheld on appeal when
supported by credible evidence." Bullion Hollow Enters., Inc. v.
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Lane, 14 Va. App. 725, 730, 418 S.E.2d 904, 907 (1992).
For these reasons, we affirm the commission's decision.
Affirmed.
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