COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Agee and Senior Judge Coleman 

NEWPORT NEWS SHIPBUILDING AND 

 DRY DOCK COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0954-02-1 PER CURIAM 

 AUGUST 27, 2002 

JOSEPH W. BURNETT, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Christopher R. Hedrick; Mason, Cowardin & 

Mason, P.C., on brief), for appellant. 

 (Gregory E. Camden; Montagna, Breit, Klein & 

Camden, LLP, on brief), for appellee. 

 Newport News Shipbuilding and Dry Dock Company (employer) 

contends the Workers' Compensation Commission erred in finding 

that Joseph W. Burnett, Jr. (claimant) proved (1) his left leg 

condition was a compensable consequence of his 1992 right knee 

injury; and (2) he adequately marketed his residual work 

capacity after July 10, 2000. Upon 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. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 
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I. Compensable Consequence

 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 proved his left knee condition was 

a compensable consequence of his May 9, 1992 compensable work 

injury to his right knee, the commission found as follows: 

The compensable May 9, 1992, right knee 

accident required 2 arthroscopy procedures 

and a total knee replacement. We have no 

evidence that before the 1992 accident, the 

claimant had any problem or a diagnosis of 

arthritis in his left knee. It was only 

after two arthroscopy procedures to the 

right knee that the claimant first reported 

on November 4, 1998 a problem with the left 

knee. While it appears that from the degree 

of arthritis in the left knee it pre-existed 

the accident, Dr. [Glenn] Nichols, the 

treating doctor, causally related the 

deterioration of the knee to the need to 

shift weight to the left knee because of the 

right knee surgeries. Dr. Nichols has 

stated that without the right knee injury he 

could not say that the claimant would have 

required treatment for the left knee. We 

find the opinion of Dr. Nichols to be more 

persuasive than that of Dr. [Patrick W.] 

O'Connell who examined the claimant one time 

at the request of the employer and 

Dr. [David] Tornberg who only reviewed 

medical records. 
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 The medical records and opinions of the treating physician, 

Dr. Nichols, coupled with claimant's testimony, constitute 

credible evidence to support the commission's findings. As fact 

finder, the commission was entitled to weigh the medical 

evidence, to accept Dr. Nichols' opinions, and to reject the 

contrary opinions of Drs. O'Connell and Tornberg. "Questions 

raised by conflicting medical opinions must be decided by the 

commission." Penley v. Island Creek Coal Co., 8 Va. App. 310, 

318, 381 S.E.2d 231, 236 (1989). Furthermore, "[i]n 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. Marketing

 "What constitutes a reasonable marketing effort depends on 

the facts and circumstances of each case." The Greif Cos. v. 

Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation 

omitted). When the commission's factual determinations are 

supported by credible evidence, they will not be disturbed on 

appeal. Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217, 

220-21, 527 S.E.2d 451, 453 (2000). The commission determines 

the weight to give the various criteria it considers. National 

Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34 

(1989) (citing relevant factors). 
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 In holding that claimant adequately marketed his residual 

work capacity, the commission found as follows: 

[C]laimant has attended the Job Club on two 

occasions. He has worked with at least 

three job counselors who have been 

unsuccessful in locating a position within 

his physical capacity. He has registered 

with the Virginia Employment Commission. 

While the claimant may have applied for some 

positions that a vocational rehabilitation 

specialist would not deem appropriate, this 

does not negate that his consistent actions 

of applying anywhere that a job was 

available were such as to demonstrate a 

genuine effort to locate possible 

employment. While some of the jobs that the 

claimant contacted were clearly not within 

his work restrictions, we find that a number 

of them were. We do not find that it was 

unreasonable for the claimant to apply for 

desk clerk positions particularly since a 

vocational counselor previously identified 

this as a possible job. The claimant also 

noted seeing desk clerks sitting. Based on 

the totality of the evidence including the 

inability of vocational counselor's to 

locate employment, we find that in this case 

the claimant sufficiently marketed his 

remaining capacity. 

 As fact finder, the commission weighed claimant's evidence 

and accepted his testimony and evidence regarding his marketing 

efforts. 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 light of the nature and extent of claimant's 

disability; his training, age, experience and education; the 

nature and extent of his job search; the intent of his job 

search; availability of jobs in the area; and his cooperation 
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with three vocational counselors who failed to locate suitable 

employment for him, the commission could reasonably conclude 

that claimant adequately marketed his residual work capacity. 

The fact that some of the jobs claimant applied for may have 

arguably entailed duties outside his work restrictions did not 

automatically preclude a finding by the commission that he 

adequately marketed his residual work capacity. 

 Because the commission's decision was based upon credible 

evidence, it will not be disturbed on appeal. 

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

Affirmed.