COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

FRANK EDWARD SERGI 

 MEMORANDUM OPINION*

v. Record No. 2107-98-4 PER CURIAM 

 MARCH 2, 1999 

WASHINGTON METRO AREA TRANSIT AUTHORITY 

 FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION 

 (Matthew H. Swyers; Koonz, McKenney, Johnson, 

DePaolis & Lightfoot, on brief), for 

appellant. 

 (Robert C. Baker, Jr.; Michael E. Ford; Mell, 

Brownell & Baker, on brief), for appellee. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 

 Frank E. Sergi contends that the Workers' Compensation 

Commission erred in finding (1) he failed to prove a compensable 

injury by accident occurring on July 21, 1997, in his employment 

with Washington Metro Area Transit Authority ("WMATA"); and (2) 

he inadequately marketed his residual work capacity after August 

22, 1997. 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. See

Rule 5A:27. 

 I. 

 The commission affirmed the deputy commissioner's ruling 

that Sergi's evidence "established the occurrence of a 

compensable injury by accident." The commission held that 

"[t]his evidence establishes an injury by accident arising out of 
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and in the course of the employment." WMATA did not appeal that 

finding to this Court. Therefore, it has become final and is 

binding upon this Court. 

 The full commission reversed the deputy commissioner's 

holding that Sergi's back strain aggravated his pre-existing 

degenerative disc disease. Based upon a review of the medical 

evidence, the commission found credible evidence that the July 

21, 1997 muscular strain did not aggravate Sergi's pre-existing 

degenerative disc disease. The evidence contains opinions from 

Dr. Levitt and Dr. Nieman that Sergi suffered only a muscular 

strain of the lower back. Although Dr. Cirillo responded 

affirmatively to a questionnaire that asked whether the disc 

disease was causally related to the accident, the commission 

"found it unlikely that [Sergi's] degenerative disc disease, with 

which he was diagnosed three days after the accident, could have 

been caused by the accident." 

 "Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 214 (1991). "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). 

In its role as fact finder, the commission was entitled to weigh 

the medical evidence and to give greater weight to the opinions 

of Dr. Neiman and Dr. Levitt. Furthermore, "[w]here reasonable 

inferences may be drawn from the evidence in support of the 
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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). "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." Wagner 

Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 

(1991). The commission's finding that the muscular strain 

suffered by Sergi as a result of his compensable injury by 

accident did not aggravate his pre-existing degenerative disc 

disease is supported by credible evidence and, thus, is binding 

on this appeal. 

 II. 

 The parties stipulated at the hearing that Sergi was 

partially incapacitated after August 22, 1997. Accordingly, we 

must address the marketing issue. 

 To establish his entitlement to benefits, Sergi had the 

burden of proving "that he made a reasonable effort to procure 

suitable work but was unable to market his remaining work 

capacity." 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 Sergi's evidence sustained his burden of proving that he 

made a reasonable effort to market his residual work capacity, 

the commission's findings are binding and conclusive upon us. 

See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 

S.E.2d 833, 835 (1970). 
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 Sergi's evidence proved he was released by his treating 

physician on August 22, 1997 to return to light-duty work. Sergi 

testified that his efforts to find employment after that date 

consisted of making telephone calls to prospective employers, 

looking in the newspaper, and talking to some friends. He 

documented his efforts on a list which showed seven job contacts 

between September 22, 1997 and February 7, 1998. Sergi made one 

job contact on September 22, 1997 and one job contact on October 

3, 1997. He did not make another job contact, according to his 

written list, until February 1, 1998. The remaining five job 

contacts contained on the written list occurred during a six-day 

period, between February 2, 1998 and February 7, 1998, three 

weeks before the hearing. One of those job contacts was with the 

same prospective employer Sergi had contacted on October 3, 1997. 

Although Sergi testified that the list did not include all of his 

job contacts, he admitted that he made only one job contact in 

September 1997 and one job contact in October 1997. Sergi did 

not list any employers he contacted by telephone or any friends 

he may have spoken to about prospective jobs. 

 Based upon this record, the commission affirmed the deputy 

commissioner's ruling that Sergi failed to prove that he made a 

reasonable effort to fully market his residual work capacity 

after August 22, 1997. "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." National Linen Service 
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v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). Thus, 

we note that the commission rejected part of Sergi's testimony 

and found as follows: 

 First, we note that [Sergi] kept 

detailed records of his mileage to and from 

medical appointments for the purposes of 

seeking reimbursement as a part of his claim 

for benefits. . . . We think it likely that 

if he had been making telephone contacts as 

he alleged, that those contacts would have 

been recorded as well. Second, we find it 

unlikely that in almost six months there were 

only seven places of potential employment in 

the Washington Metropolitan Area that he 

found at which he could file applications. 

Third, [Sergi] apparently did not register 

with the Virginia Employment Commission and 

utilize their services in attempting to 

locate employment. Considering the factors 

set forth in National Linen Service v. 

McGuinn, 8 Va. App. 267, 380 S.E.2d 31 

(1989), we do not think that [Sergi] has 

demonstrated a reasonable effort to fully 

market his residual capacity. 

 The evidence concerning Sergi's efforts to market his 

residual capacity after August 22, 1997 was largely dependent 

upon his credibility. The commission found to be unpersuasive a 

significant part of Sergi's testimony regarding his marketing 

efforts. As fact finder, the commission was entitled to reject 

Sergi's testimony. It is well settled that credibility 

determinations are within the fact finder's exclusive purview. 

See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 

363 S.E.2d 433, 437 (1987). Based upon the documentary evidence 

submitted by Sergi, which showed a minimal marketing effort, at 

best, we cannot conclude as a matter of law that he sustained his 
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burden of proving that he made a reasonable effort to market his 

residual work capacity after August 22, 1997. 

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

 Affirmed.