COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Coleman and Elder 

Argued at Salem, Virginia 

TYSON FOODS, INC. 

 MEMORANDUM OPINION* BY 

v. Record No. 0510-96-3 JUDGE LARRY G. ELDER 

 OCTOBER 1, 1996 

CAROLYN ELEANOR PAYNE-MARSHALL 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Thomas G. Bell, Jr. (Timberlake, Smith, 

Thomas & Moses, P.C., on brief), for 

appellant. 

 George L. Townsend (Chandler, Franklin & 

O'Bryan, on brief), for appellee. 

 Tyson Foods, Inc. (employer) appeals from the Workers' 

Compensation Commission's (commission) award of temporary total 

disability benefits to Carolyn Eleanor Payne-Marshall (claimant). 

 Employer contends that the commission erred in determining 

(1) that claimant sustained an injury by accident despite the 

deputy commissioner's ruling that claimant's testimony was not 

credible; and (2) that claimant had no duty to market her 

residual work capacity after her treating physician released her 

to light duty work without setting forth her work restrictions. 

Agreeing with employer's second argument, we reverse that part of 

the commission's decision awarding claimant temporary total 

disability benefits after January 9, 1995, the date her physician 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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released her to light duty work. We affirm the remainder of the 

commission's decision. 

 I. 

TESTIMONY TO ESTABLISH 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). "It 

is fundamental that a finding of fact made by the Commission is 

conclusive and binding upon this court on review." Department of 

Corrections v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533 

(1986). The fact that contrary evidence exists in the record is 

of no consequence if credible evidence supports the commission's 

findings. Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 

407 S.E.2d 32, 35 (1991). 

 Employer contends that the commission had no basis to 

reverse the deputy commissioner's decision that claimant failed 

to prove an identifiable injury by accident and that the 

commission failed to articulate a reason for doing so. Employer 

specifically contends "that once the issue of a witness' 

credibility has been decided by the deputy commissioner hearing 

the case ore tenus, this finding binds the full commission." 

Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 380, 363 

S.E.2d 433, 436 (1989). We disagree with employer's application 

of the law to the facts of this case. 

 In Pierce, we held that where the deputy commissioner's 
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findings are based on a specific, recorded observation of a 

witness' demeanor or appearance, the commission cannot 

arbitrarily disregard those findings. Id. at 382, 363 S.E.2d at 

437. In Pierce, unlike this case, the deputy commissioner 

provided a detailed description of the claimant's demeanor and 

appearance, stating in part: 

 [Claimant was] repeatedly evasive in his 

answers to the extent that he gave the clear 

appearance of intentionally trying to avoid 

giving a direct response to an uncomplicated 

question. [Claimant] . . . accomplished this 

by his argumentative answers to such question 

by defense counsel. This evasiveness which 

was clearly apparent to this Hearing 

Commissioner, coupled with the inconsistent 

testimony of the [claimant] as contrasted 

 to his signed statement on the hospital pass 

. . . raises a substantial question as to the 

credibility of this [claimant]. 

Id. at 379-80, 363 S.E.2d at 436. 

 The commission has no duty to explain its decision favoring 

the testimony of one witness over another "[a]bsent a specific 

recorded observation regarding the behavior, demeanor or 

appearance of [the witness]." Bullion Hollow Enters. v. Lane, 14 

Va. App. 725, 729, 418 S.E.2d 904, 907 (1992). In this case, the 

deputy commissioner did not make a specific, recorded observation 

of the claimant's demeanor. The commission, therefore, was 

entitled to make its own credibility determination based on the 

record before it without articulating a reason for not following 

the deputy commissioner's credibility findings. Kroger Co. v. 

Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 881 (1992); Lane, 
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14 Va. App. at 729, 418 S.E.2d at 907. 

 We agree with the commission's determination that the 

conflicts between claimant's testimony and the recorded histories 

are not substantial, "and in most instances, they are 

satisfactorily explained." The probative weight that the 

commission gave the conflicting evidence was "within its province 

and not subject to our review." Birdsong Peanut Co. v. Cowling, 

8 Va. App. 274, 279, 381 S.E.2d 24, 27 (1989). 

 The commission accurately summarized the substantial and 

credible evidence in the record that supports claimant's version 

of events, which factual account binds us on appeal. Briefly, 

the evidence, viewed in the light most favorable to claimant, 

shows that after midnight on October 21, 1994, claimant lifted a 

tub full of boxes of chicken off of a conveyor belt, at which 

time she was pulled down and injured her back and neck area. 

Claimant immediately informed her sister and a supervisor of her 

accident, before attempting to receive medical attention from a 

company nurse. Claimant consulted a nurse later that day, 

remained home in pain for the next three days, and then received 

medical treatment at the hospital and from Dr. Mettetal. A 

herniated disc was diagnosed and successfully treated surgically. 

 This evidence proved an injury by accident arising out of and in 

the course of claimant's employment. See Code § 65.2-101. 

 We therefore hold that the commission did not err in 

reversing the deputy commissioner's decision without providing a 
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rationale for disregarding the deputy commissioner's general 

credibility findings. 
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 II. 

DUTY TO MARKET 

 The duty of a claimant to market his or her residual 

capacity arises when the claimant is partially disabled. 

National Linen Serv. v. McGuinn, 8 Va. App. 267, 268, 380 S.E.2d 

31, 32 (1989); Code § 65.2-510. 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 she may undertake restricted work 

in order for her to be obligated to make reasonable efforts to 

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. 

 In this case, the uncontradicted evidence proved that Dr. 

Gillespie informed claimant that beginning on January 9, 1995, 

she was cleared to return to light duty employment. Dr. 

Gillespie's report included the following excerpt: 

 I have recommended that claimant start 
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looking for a light duty type job. She still 

has some complaints of neck discomfort as 

well as some axillary pain on the left side. 

 She has stated that she has no intentions of 

going back to a manual labor type job, and 

may be planning on returning to her 

schooling. I have informed her that she 

could be cleared for return to light duty 

work at this point, and have recommended that 

she go ahead and seek this type of 

employment. 

While nothing in the record reveals that Dr. Gillespie specified 

the types of light duty employment that suited claimant's 

physical limitations, claimant never asked for such 

specifications. In light of these circumstances, we hold that 

the commission erred in finding that claimant had no duty to 

market her residual work capacity. Claimant failed to present 

any evidence to show why she failed to make reasonable attempts 

to locate suitable light duty employment. For example, claimant 

may have presented evidence that she did not understand that she 

had been released to light duty status or that she was confused 

over her work restrictions or that she had problems not known to 

Dr. Gillespie that precluded her return to work. In the absence 

of any evidence of this nature, the commission lacked a basis to 

determine that claimant's inaction was reasonable after Dr. 

Gillespie in clear and unequivocal terms "informed her that she 

[was] cleared for return to light duty work at this point." 

 The fact that a treating physician does not specify the 

precise physical limitations on a claimant's release to light 

duty employment does not mean that the claimant is excused from 
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making further inquiry into the matter. As we stated in 

Ridenhour, 12 Va. App. at 416, 404 S.E.2d at 89, a claimant who 

suffers partial disability need not even be informed by her 

physician "that she may undertake restricted work in order for 

her to be obligated to make reasonable efforts to market her 

residual skills." It follows that where a claimant's physician 

does inform her of a release to light duty, the claimant is 

required to take reasonable efforts toward marketing her residual 

skills, even where the physician does not provide her with 

specific instructions concerning appropriate light duty work. 

 Accordingly, we reverse that part of the commission's 

decision awarding claimant temporary total disability benefits 

after January 9, 1995. We affirm the other portions of the 

commission's decision. 

Affirmed in part and

reversed in part.