COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Agee 

Argued by teleconference 

CLINTON FELTON JEFFERSON 

 MEMORANDUM OPINION* BY 

v. Record No. 2318-01-3 JUDGE G. STEVEN AGEE 

 APRIL 16, 2002 

SERVITEX, INC. AND 

 HARTFORD CASUALTY INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Stephen G. Bass (Carter, Craig, Bass, Blair 

& Kushner, P.C., on briefs), for appellant. 

 Richard D. Lucas (Lucas & Associates, on 

brief), for appellees. 

 

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

designated for publication. 

 Clinton Felton Jefferson (the claimant) appeals the 

decision of the Workers' Compensation Commission (the 

commission) denying his claim for disability benefits from 

Servitex and its insurer, Hartford Casualty Insurance Company, 

(herein, collectively, referred to as "the employer"). He 

contends the commission erred in finding that he failed to 

reasonably market his residual work capacity. Pursuant to Rule 

5A:21(d), the employer raises the additional questions of 

whether (1) the commission erred in finding the claimant's 

injury arose out of his employment and (2) the claimant was 
entitled to temporary total disability benefits for September 

12-26, 2000. Upon review, we affirm the commission's decision. 

I. BACKGROUND 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, only those facts necessary to a disposition of this 

appeal are recited. 

 The claimant worked as a route salesman for the employer. 

His job duties included the delivery of laundered linens to 

clients and the pick-up of the client's soiled linens. On April 

13, 2000, the claimant backed his delivery vehicle up to a 

client's loading dock which was two and one-half to three feet 

above the bed of the vehicle. 

 The claimant went through the building to open the loading 

dock door. As was his normal practice, he then stepped down 

backwards from the loading dock into the bed of the vehicle. 

His left knee gave and, as he tried to recover, his left leg 

gave out causing the claimant to fall backwards. He did not 

slip or trip. 

 After a few minutes of lying on the vehicle bed's floor, 

the claimant rose and attempted unsuccessfully to work. 

 Dr. Campbell treated the claimant that day and informed him 

that he had arthritis in his left knee. The examination 

reflected degenerative changes in the knee with a history of 

gout. The physician recommended the claimant not work for a few 

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days. On April 21, 2000, Dr. Campbell examined the claimant 

again and released him to return to regular work. 

 From April 21, 2000, through late August 2000, the 

claimant, suffering pain in his left knee, continued treatment 

with Dr. Campbell. He worked his regular job during that period 

of time, except for three days. 

 On September 12, 2000, Dr. Campbell saw the claimant who 

complained of knee pain and walked with a stiff gait. An MRI 

revealed a partial MCL tear. The physician provided claimant 

with a leave slip that read, "this is to certify that [the 

claimant] is physically unable to return to work from Sept. 1, 

00 until next appt. Next appointment-Sept. 27, 00 @ 10:00." On 

September 27, 2000, the claimant was placed on light duty 

restrictions, but the employer did not have a light duty 

position for him. 

 The claimant did not seek subsequent employment prior to 

December 14, 2000. Between December 14, 2000, and January 3, 

2001, he contacted nine companies, which employed friends or 

acquaintances, but none of the nine companies were hiring. 

Claimant began to make these contacts after filing for benefits 

with the Virginia Employment Commission, which requires benefit 

recipients to contact at least two potential employers per week. 

No other efforts to find employment were made by the claimant. 

The claimant testified that he was unaware that he was required 

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to seek employment in order to be entitled to workers' 

compensation benefits. 

 In addition to the testimony of the claimant and a 

representative for the employer, the deputy commissioner 

reviewed Dr. Campbell's submitted responses to questionnaires 

provided to him from each party. On the questionnaire from the 

claimant, the physician indicated his agreement to the following 

statement: 

It is my opinion with a reasonable degree of 

medical certainty or probability that the 

incident, described by [the claimant] as 

occurring on April 13, 2000[,] and in which 

he twisted his left knee at work stepping 

down from a loading dock to the rear of a 

truck, aggravated his pre-existing arthritis 

and caused a strain of his medical [sic] 

collateral ligament. 

On the questionnaire from the employer, the physician indicated 

his agreement with this statement: 

[Y]ou did not believe [the claimant] was 

totally disabled but was capable of doing 

light duty work, including sedentary work, 

and that you have never told [the claimant] 

that he was totally disabled from all 

employment. 

 The deputy commissioner found the claimant had suffered a 

compensable injury arising out of and in the course of his 

employment; that he was entitled to temporary total disability 

benefits for the period September 12-26, 2000; he was not 

entitled to benefits for the period September 27, 2000, through 

December 13, 2000, due to his failure to market his residual 

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work capacity; and that he was entitled to benefits, commencing 

December 14, 2000, through January 4, 2001, for reasonably 

marketing his remaining work capacity. 

 Upon review, the full commission found the claimant had 

proven that he suffered a compensable injury; was entitled to 

temporary total disability benefits for the period September 

12-26, 2000; and that the claimant failed to market his residual 

work capacity commencing December 14, 2000. 

 Both parties now challenge the award in different respects. 

II. A COMPENSABLE INJURY 

 We begin our review with the employer's contention that the 

commission erred in finding the claimant suffered a compensable 

injury arising out of his employment. It argues the claimant is 

not entitled to benefits because he failed to meet his burden of 

proving the injury he suffered was due to a risk of employment. 

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

 "In order to recover on a workers' compensation claim, a 

claimant must prove: (1) an injury by accident, (2) arising out 

of and (3) in the course of his employment." Kane Plumbing, 

Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988); 

see Code § 65.2-101. "The phrase arising 'in the course of' 

refers to the time, place, and circumstances under which the 

accident occurred," while "arising 'out of' refers to the origin 

or cause of the injury." County of Chesterfield v. Johnson, 237 

Va. 180, 183, 376 S.E.2d 73, 74 (1989). 

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 "The mere happening of an accident at the workplace, not 

caused by any work related risk or significant work related 

exertion, is not compensable." Plumb Rite Plumbing Serv. v. 

Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989). A 

claimant must establish "that the conditions of the workplace or 

. . . some significant work related exertion caused the injury." 

Id. Thus, "the arising out of test excludes 'an injury which 

comes from a hazard to which the employee would have been 

equally exposed apart from the employment. The causative danger 

must be peculiar to the work, incidental to the character of the 

business, and not independent of the master-servant 

relationship.'" Johnson, 237 Va. at 183-84, 376 S.E.2d at 75 

(quoting United Parcel Service v. Fetterman, 230 Va. 257, 

258-59, 336 S.E.2d 892, 893 (1985)). 

"The actual determination of causation is a factual finding 

that will not be disturbed on appeal," if supported by credible 

evidence. Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 

376 S.E.2d 814, 817 (1989); see Code § 65.2-706. However, 

"[w]hether an injury arises out of and in the course of 

employment is a mixed question of law and fact . . . , 

reviewable upon appeal." Jones v. Colonial Williamsburg Found., 

8 Va. App. 432, 434, 382 S.E.2d 300, 301 (1989). 

 The claimant's testimony constitutes credible evidence to 

support the commission's factual findings. The claimant stated 

that when he stepped down from the loading dock, which was two 

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and one-half to three feet higher than the bed of the truck, 

into the bed of the truck his left knee went out from under him 

and he fell backwards. The claimant was not simply walking, 

bending or turning when his knee gave way. Rather, the 

commission could reasonably infer from the evidence that 

claimant's employment-related need to get into the bed of the 

truck resulted in his knee injury. "Where reasonable inferences 

may be drawn from the evidence in support of the commission's 

factual findings, they will not be disturbed by this Court on 

appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App. 398, 404, 

374 S.E.2d 695, 698 (1988). Here, the evidence supported an 

inference that the conditions of employment either caused or 

contributed to the claimant's injury. 

 The commission's factual findings are supported by the 

record and properly establish an injurious activity arising from 

a work-related risk, compensable under the Act. Compare

Southside Va. Training Center/Com. v. Ellis, 33 Va. App. 824, 

829, 537 S.E.2d 35, 37 (2000) (denying compensation resulting 

from "bending to pick up a tray," a movement "neither unusual, 

awkward, nor something that employee was required to do on a 

repetitive basis"), with Richard E. Brown, Inc. v. Caporaletti, 

12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991) (finding 

"cutting and fitting" motions of employee, while leaning over 

during installation of a furnace, a condition of employment with 

attendant risk of injury). 

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 Accordingly, the evidence supports the commission's 

determination that the claimant's injury arose out of his 

employment, and we affirm the related award. 

III. TEMPORARY TOTAL DISABILITY BENEFITS 

 The employer contends the commission erred in finding the 

claimant was entitled to temporary total disability benefits for 

the period September 12-26, 2000. Finding the commission's 

decision supported by the evidence, we disagree. 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. See R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). On 

this particular contention, the claimant prevailed before the 

commission, and we review the evidence in the light most 

favorable to him. Factual findings made by the commission will 

be upheld on appeal if supported by credible evidence, even if 

there is evidence in the record to support a contrary finding. 

Russell Stover Candies v. Alexander, 30 Va. App. 812, 825, 520 

S.E.2d 404, 411 (1999). We will "not retry the facts, reweigh 

the preponderance of the evidence, or make [our] 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). Consequently, where the commission resolves a conflict 

in medical evidence, on appeal the medical issue will not be 

"settled by judicial fiat," and the commission's decision is 

binding so long as it is supported by credible evidence. 

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Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 

874 (1992). "This rule applies when an expert's opinion 

contains internal conflict." Greif Companies/Genesco, Inc. v. 

Hensley, 22 Va. App. 546, 552, 471 S.E.2d 803, 806 (1996). 

 In support of its argument that the claimant is not 

entitled to temporary total disability benefits, the employer 

contends the physician's agreement with its submitted partial 

statement, "you have never told [the claimant] that he was 

totally disabled from all employment," belies an award of 

benefits for temporary total disability benefits. We disagree. 

 In awarding claimant temporary total disability benefits 

for the period of September 12-26, 2000, the commission found as 

follows: 

[T]he December 27, 2000, affirmation is 

contradicted by the September 12, 2000, 

disability slip that Dr. Campbell signed 

after examining the claimant that day. The 

September 12, 2000, disability slip is 

consistent with the treatment notes, which 

reflect that his condition has "become more 

symptomatic." It is also contemporaneous 

with the period in question. Therefore, we 

agree with the [deputy commissioner's] 

finding that the claimant was temporarily 

and totally disabled from September 12 

through September 26, 2000. 

 The commission's factual findings are supported by credible 

evidence, including the medical records, leave slip and 

claimant's testimony. Based upon that evidence, the commission 

could reasonably conclude that claimant was temporarily and 

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totally disabled from September 12, 2000, through September 26, 

2000. 

IV. THE FAILURE TO MARKET RESIDUAL CAPACITY 

 The claimant contends the commission erred in finding that 

he did not reasonably market his residual work capacity between 

December 14, 2000, and January 4, 2001. We disagree. 

 A partially disabled employee is required to make 

reasonable efforts to market his residual earning capacity to be 

entitled to receive continued benefits. See National Linen 

Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989). 

"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." Id. at 270, 380 S.E.2d at 33. "What 

constitutes a reasonable marketing effort depends upon the facts 

and circumstances of each case." Greif Companies (GENESCO) v. 

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

Failure of a partially disabled employee to satisfy the 

duty to make reasonable efforts to market residual work capacity 

results in a temporary suspension of benefits. Great Atl. & 

Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 98, 100 

(1987). "It is not required that a workers' compensation 

claimant who suffers partial disability be informed by her 

physician that [he or] she may undertake restricted work in 

order for her to be obligated to make reasonable efforts to 

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market her residual skills." Ridenhour v. City of Newport News,

12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991). The claimant is 

required to make reasonable efforts to market his or her 

remaining work capacity when under all the facts and 

circumstances, the claimant should reasonably and objectively 

perceive that he or she can return to gainful employment. See 

id. at 418, 404 S.E.2d at 90; Bateman, 4 Va. App. at 467, 359 

S.E.2d at 102. 

 The claimant contacted nine potential employers between 

December 14, 2000, and January 3, 2001. The only reason the 

nine were contacted was because the Virginia Employment 

Commission, from which the claimant sought unemployment 

benefits, required he contact at least two employers per week. 

All nine were employers he knew personally, and none of these 

were hiring. The claimant did not fill out any employment 

applications. There is no evidence that he sought employment 

elsewhere, that he approached potential employers with actual 

job openings, or that he even looked into job listings in a 

newspaper or other readily available resource. 

 The commission found that the claimant's efforts were not 

reasonable. Credible evidence, i.e., the claimant's testimony 

and his minimal list of contacts, supports the commission's 

finding. Therefore, the commission's decision will not be 

disturbed on appeal. 

Affirmed.

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