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. 
 2 

 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 
 3 

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.