COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Bumgardner and 

 Senior Judge Hodges 

CORNING, INC. AND 

 ROYAL INDEMNITY COMPANY 

v. Record No. 1752-00-3 

TYLER V. BROWN MEMORANDUM OPINION*

 PER CURIAM 

TYLER V. BROWN NOVEMBER 28, 2000 

v. Record No. 1768-00-3 

CORNING, INC. AND 

 ROYAL INDEMNITY COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (James A. L. Daniel; Elizabeth B. Carroll; 

Daniel, Vaughan, Medley & Smitherman, P.C., 

on briefs), for Corning, Inc. and Royal 

Indemnity Company. 

 (Henry G. Crider; Crider Law Office, on 

briefs), for Tyler V. Brown. 

 

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

designated for publication. 

 Corning, Inc. and its insurer (hereinafter referred to as 

"employer") contend that the Workers' Compensation Commission 

erred in finding that Tyler V. Brown (claimant) proved that (1) 

he sustained a compensable injury by accident on February 4, 

1999; and (2) employer was responsible for the cost of medical 

treatment provided by Dr. Frank Tate, a chiropractor. On 
cross-appeal, claimant contends that the commission erred in 

finding that he failed to market his residual work capacity on 

or after May 17, 1999. Upon reviewing the record and the briefs 

of the parties, we conclude that these appeals are without 

merit. Accordingly, we summarily affirm the commission's 

decision. See Rule 5A:27. 

I. 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).

 Claimant testified that on Thursday, February 4, 1999, at 

approximately 1:00 p.m., while working for employer as a 

tradesman, he was repairing a lehr belt. This job required that 

he wedge a 2 x 6 board under the belt. As claimant pried and 

pushed the board, in an effort to get it under the belt, he felt 

a burning sensation in his mid-back. He had never felt this 

type of pain before. He took a break and walked around. The 

sharp pain subsided, but he still felt a bulging pain. He was 

able to finish working that day, completing his shift at 

3:30 p.m. That day claimant mentioned to Mike Davis, his group 

leader, that he thought he had pulled something in his back. 

 Claimant worked Friday, February 5, 1999 and testified that 

his back did not start bothering him until he woke up on 

Saturday morning. 

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 On Monday, February 8, 1999, claimant went to work and 

reported the incident to Carolyn Harrison, the plant nurse. 

Harrison did not offer claimant a panel of physicians. Claimant 

sought treatment from Dr. Tate that day. 

 On Tuesday, February 9, 1999, claimant reported the 

incident to Mike Jones, his supervisor. Claimant did not want 

to report his accident as a workers' compensation claim at that 

time because the company was in the middle of a period of no 

injuries and claimant thought that his back would get better in 

a few weeks. Claimant completed a form for short term 

disability, but he did not know that it would be submitted as 

unrelated to work and he did not indicate on the form whether 

the accident happened at work. Sometime in February 1999, 

claimant told employer's personnel supervisor, Kevin Konopski, 

that he wanted to "treat" the injury as a disability and not as 

a workers' compensation claim. Konopski admitted that he was 

aware that an accident report had been completed which indicated 

that claimant hurt his back while on the job on February 4, 1999 

at 1:00 p.m. Konopski admitted that claimant never told him 

that the work-related incident had not happened. 

 Claimant denied telling any co-workers that his back injury 

was not work-related. Claimant agreed that he had back problems 

before February 4, 1999 and that he had treated with Dr. Tate 

for those problems. The record established that claimant had 

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not undergone any treatment for his back since 1991 until after 

the February 4, 1999 incident. 

 A February 9, 1999 accident report signed by claimant and 

Jones reflected that claimant was pushing a 2 x 6 board under a 

172 lehr belt, which required him to lift, lower, and push at 

the same time. The report stated, "Did not feel anything at the 

time. Woke up next day with a sore back." The report noted 

that the injury occurred while performing normal duties, on the 

job, during regular work hours. Claimant specifically denied 

making the statement that he did not feel anything at the time 

of the incident. 

 A document entitled "PeopleSoft Incident Detail," completed 

on February 9, 1999, showed an incident of February 4, 1999, 

occurring at 1:00 p.m and reported on February 8, 1999. The 

report listed the nature of the injury as "[b]ack pain, hurt 

back" and the accident type as "[o]verexertion in pulling or 

pus[hing]." The report described the incident as follows: 

"Employee stated he was pushing a 2"x6" board under 172 lehr 

belt. It required lifting and lowering and pushing at the same 

time. He did not fell anything at the time. Woke up next day 

with sore back." 

 In ruling that claimant proved he sustained an injury by 

accident arising out of and in the course of his employment on 

February 4, 1999, the commission found as follows: 

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[W]e note the claimant's testimony 

concerning a specific incident which is 

corroborated by the various medical 

histories. His testimony is buttressed by 

the PeopleSoft Incident Detail report. The 

employer's initial accident report indicates 

a work injury and generally comports with 

claimant's testimony except that the report 

reflects that the claimant did not feel 

anything at the time. The claimant 

testified to feeling some pain at the time 

but that it eased up, allowing him to 

continue to work the following day. . . . 

 We are not persuaded that an accident 

did not occur merely because the claimant 

elected to file for short term disability. 

At the time the short-term disability was 

sought, Konopski was aware of the report 

indicating a work related injury. . . . We 

note the claimant's testimony that he 

believed the disability to be for a short 

period of time and did not want to be the 

person to break the lost time record. . . . 

* * * * * * * 

 While the claimant agreed and several 

witnesses testified to discussions 

concerning back pain prior to this incident, 

we can find no medical report to indicate 

any treatment since April 1991, when he saw 

the chiropractor. There is no medical 

evidence that claimant had any disc 

herniation or other similar problem. . . . 

No witnesses testified that prior to the 

accident the claimant missed any time from 

work as a result of a back problem. 

 "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 

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S.E.2d 858, 865 (1989). "In determining whether credible 

evidence exists [to support the commission's ruling], 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). "The 

fact that there is contrary evidence in the record is of no 

consequence if there is credible evidence to support the 

commission's finding." Id.

 Claimant's testimony, which was consistent with the various 

medical histories and which was generally corroborated by the 

accident report and PeopleSoft Incident Report, constituted 

credible evidence to support the commission's finding that 

claimant proved that he sustained a specific identifiable 

incident at work on February 4, 1999, resulting in a back 

injury. As fact finder, the commission was entitled to weigh 

the evidence, accept claimant's testimony, and to reject any 

contrary testimony of employer's witnesses. 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). Because the 

commission's finding is supported by credible evidence, we will 

not disturb it on appeal. 

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II. Medical Treatment

 In ruling that employer was responsible for the cost of Dr. 

Tate's treatment up through May 12, 1999, the commission found 

as follows: 

[U]ntil May 12, 1999, the employer did not 

provide the claimant with a panel of 

physicians although being aware of an on the 

job injury. . . . We find no evidence that 

Dr. Tate treated the claimant for this 

incident after May 7, 1999. We find that 

Dr. [Stuart J.] Kramer, who was selected 

from the panel, in turn, referred the 

claimant to Dr. [Lawrence F.] Cohen, who 

then referred him to Dr. [Ramon R.] Erasmo 

for a second opinion. Dr. Cohen ultimately 

referred the claimant to Dr. [Eduardo] 

Fairfield [sic]. We do note, however, that, 

inasmuch as the employer denied the claim, 

the claimant was free to seek medical 

treatment from a physician of his choice. 

Therefore, . . . we can find no evidence of 

unauthorized medical care. 

 Contrary to employer's assertions in its brief, the record 

established that from the beginning, claimant consistently 

reported an on-the-job injury to employer's representatives and 

his medical providers. Employer did not offer claimant a panel 

of physicians before May 12, 1999, and, therefore, he was 

entitled to seek treatment from Dr. Tate from February 1999 

through May 12, 1999. 

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 

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party before the commission . . . ." National Linen Serv. v. 

McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). 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). 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. Tomko 

v. Michael’s Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 

835 (1970). 

 It was undisputed that on May 17, 1999, Dr. Kramer released 

claimant to light-duty work with restrictions of no lifting more 

than fifteen to twenty pounds, no excessive bending, and no 

squatting or crawling. Claimant's marketing efforts after May 

17, 1999 consisted of seeking light-duty from employer, which 

was not available, and attempting to register with the VEC 

veterans outreach program. Claimant was advised he was not 

eligible for that program until he was released to full-duty by 

his physician. Claimant pursued no other means of employment. 

He did not seek assistance from employment agencies. He did not 

consult newspaper advertisements or complete any applications or 

arrange for any interviews. 

 Contrary to claimant's argument on appeal, the fact that he 

was undergoing physical therapy three times per week after May 

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17, 1999 did not excuse his obligation to seek suitable 

employment. 

 Based upon this record, we cannot find as a matter of law 

that claimant marketed his residual work capacity after May 17, 

1999. 

 For the reasons stated, we affirm the commission's 

decision. 

Affirmed.

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