COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Willis 

NEWPORT NEWS BAPTIST RETIREMENT COMMUNITY AND 

 HARTFORD FIRE INSURANCE COMPANY 

 MEMORANDUM OPINION*

v. Record No. 0707-97-1 PER CURIAM 

 JULY 15, 1997 

CHERYL KENNEDY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Susan B. Potter; Vandeventer, Black Meredith 

& Martin, on brief), for appellants. 

 (Byron A. Adams, on brief), for appellee. 

 Newport News Baptist Retirement Community (employer) 

contends that the Workers' Compensation Commission (commission) 

erred in finding that Cheryl Kennedy (1) proved she sustained an 

injury by accident arising out of and in the course of her 

employment on January 3, 1996; (2) did not unjustifiably refuse 

selective employment offered by employer as of January 30, 1996; 

and (3) made a good faith effort to market her residual work 

capacity during her periods of light-duty release. 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. Rule 5A:27. 

 I. 

 "In order to carry [the] burden of proving an 'injury by 

accident,' a claimant must prove that the cause of [the] injury 

 

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

designated for publication. 
 2 

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 

S.E.2d 858, 865 (1989). 

 In ruling that Kennedy credibly described an injury by 

accident, the commission found as follows: 

 [Kennedy] had no prior shoulder problems, 

although she had a back injury in 1992 for 

which she missed very little work. While not 

recording the accident, Dr. [Vincent] 

Joseph's records do not contradict the 

happening of an accident. We are impressed 

by the consistency of [Kennedy's] account as 

reflected in the documentary records. Dr. 

[Wilfred R.] Gillis recorded that [Kennedy] 

pulled a muscle while "lifting patient" at 

work. Dr. [Kenneth] Putland recorded "right 

shoulder pain since lifting a patient on

1/3/96." Dr. [Thomas M.] Stiles recorded on 

February 5, 1996, that approximately one 

month earlier [Kennedy] experienced acute 

pain in her shoulder while lifting a patient 

at work. When she reported the incident to 

her employer on January 23, 1996, she 

recounted precisely the same history, of 

lifting a particular patient on the morning 

of January 3, 1996, when she felt a pull and 

sharp pain in her shoulder. [Kennedy's] 

handwritten incident report gives exactly the 

same history. We find [Kennedy's] 

credibility enhanced by the fact that she has 

repeatedly named the patient and the 

co-worker present during the incident. 

Although the employer requires immediate 

reporting of accidents, it is understandable 

that in a job which involves heavy lifting, 

an employee would not necessarily report 

every muscle strain. [Kennedy] credibly 

stated that she believed the problem would 

resolve itself. We do not find that the 

failure of [Kennedy] to report the accident 

for twenty days to her employer refutes the 

evidence supporting the occurrence as 

described by [Kennedy]. 
 3 

 Kennedy's testimony, which was corroborated by the histories 

contained in the medical records of Drs. Gillis, Putland, and 

Stiles, and by Kennedy's handwritten incident report, provides 

credible evidence to support the commission's finding that she 

sustained an injury by accident arising out of and in the course 

of her employment on January 3, 1996. Thus, that finding is 

conclusive on this appeal. See James v. Capitol Steel Constr. 

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). 

 Employer argues that the commission erred in reversing the 

deputy commissioner's credibility determination. We disagree. 

If, as in this case, "the deputy commissioner's determination of 

credibility is based upon the substance of the testimony rather 

than upon the witness's demeanor, such a finding is as 

determinable by the full commission as by the deputy." Kroger 

Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880 (1992). 

 The deputy commissioner's credibility determination was based on 

the evidence and the substance of the witnesses' testimony. 

Therefore, the full commission could make its own credibility 

determination. See id. In its role as fact finder, the 

commission was entitled to accept Kennedy's testimony, which was 

not inherently incredible. 

 II. 

 "To support a finding of refusal of selective employment 

'the record must disclose (1) a bona fide job offer suitable to 

the employee's capacity; (2) [a job offer that was] procured for 
 4 

the employee by the employer; and (3) an unjustified refusal by 

the employee to accept the job.'" James, 8 Va. App. at 515, 382 

S.E.2d at 489 (quoting Ellerson v. W.O. Grubb Steel Erection Co., 

1 Va. App. 97, 98, 335 S.E.2d 379, 380 (1985)). 

 Marilynne Gladding, Kennedy's supervisor, offered a 

light-duty position to Kennedy on January 30, 1996. In response, 

Kennedy telephoned Gladding the next day, reporting that her pain 

had increased and she had an appointment with an orthopedist. On 

February 5, 1996, Dr. Stiles, an orthopedist, examined Kennedy. 

Dr. Stiles noted a history of severe pain since Kennedy's 

work-related accident. Dr. Stiles excused Kennedy from work 

beginning February 5, 1996 until he released her to light-duty on 

March 18, 1996. 

 Kennedy's testimony and Dr. Stiles' medical records provide 

credible evidence to support a finding that Kennedy did not 

unjustifiably refuse selective employment offered to her by 

employer. Accordingly, we cannot find as a matter of law that 

the commission erred in awarding Kennedy temporary total 

disability benefits for the period from January 12, 1996 through 

April 15, 1996 and from May 20, 1996 through May 28, 1996. 

 III. 

 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. See Great 

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 
 5 

98, 101 (1987). "What constitutes a reasonable marketing effort 

depends upon the facts and circumstances of each case." The 

Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 

318 (1993). We have discussed factors which the commission 

should consider in deciding whether a claimant has made 

reasonable good faith efforts to market his or her remaining 

capacity: 

 (1) the nature and extent of employee's 

disability; (2) the employee's training, age, 

experience, and education; (3) the nature and 

extent of employee's job search; (4) the 

employee's intent in conducting his job 

search; (5) the availability of jobs in the 

area suitable for the employee, considering 

his disability; and (6) any other matter 

affecting employee's capacity to find 

suitable employment. 

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

31, 34 (1989) (footnotes omitted). In reviewing the commission's 

findings, "we view the evidence in the light most favorable to 

. . . the party prevailing before the commission." Id. at 270, 

380 S.E.2d at 33. 

 So viewed, the evidence established that after Dr. Stiles 

released Kennedy to light-duty work on March 18, 1996, Kennedy 

looked for jobs on a daily basis in the classified advertisements 

in the newspaper. She also registered with the Virginia 

Employment Commission. Between March 18, 1996 and April 5, 1996, 

Kennedy applied for jobs with Phar-Mor, Boulevard Cleaners, Farm 

Fresh, Blockbuster Video, The Devonshire, and Harris Select. 

Kennedy ultimately procured a job on her own with Harris Select, 
 6 

which she began on April 16, 1996. 

 Based upon this credible evidence and the relatively brief 

period of time during which Kennedy searched for and successfully 

found employment, we cannot find as a matter of law that the 

commission erred in holding that Kennedy made good faith efforts 

to market her residual work capacity during her periods of 

light-duty release. 

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

 Affirmed.