COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Annunziata and Overton 

THOMAS MYERCHIN 

 MEMORANDUM OPINION*

v. Record No. 0617-97-4 PER CURIAM 

 AUGUST 26, 1997 

HEART CORPORATION AND 

 MICHIGAN MUTUAL INSURANCE 

 COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 (Mark Westerfield; Johnston, Foley & 

Westerfield, on briefs), for appellant. 

 (Cecil H. Creasey, Jr.; Sands, Anderson, 

Marks & Miller, on brief), for appellees. 

 Thomas Myerchin (claimant) contends that the Workers' 

Compensation Commission (commission) erred in denying benefits on 

the ground that he failed to market his residual work capacity, 

(1) where his physician had released him to part-time light-duty 

work; and (2) Heart Corporation (employer) failed to provide 

necessary medical care. Pursuant to Rule 5A:21(b), employer 

raises the following additional questions: Whether the 

commission erred in finding that (1) claimant proved he sustained 

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

employment on September 12, 1995; and (2) claimant gave employer 

timely notice of his September 12, 1995 industrial injury. Upon 

reviewing the record and the briefs of the parties, we conclude 

 

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

designated for publication. 
 2 

that the issues raised on appeal by both parties are without 

merit. Accordingly, we summarily affirm the commission's 

decision. Rule 5A:27. 

Injury by Accident

 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). 

 So viewed, the evidence proved that in June 1995, claimant 

injured his right kneecap. Thereafter, he came under the care of 

Dr. Young J. You. In June 1995, Dr. You prescribed a patella 

stabilizing brace. On July 12, 1995, Dr. You noted that 

claimant's knee appeared stable. Dr. You advised claimant to 

wear the brace for any major activity. Dr. You did not indicate 

the need for any further treatment at that time. 

 Claimant testified that on September 12, 1995, while working 

for employer as a mechanic, he was assigned to go to American 

Stone to work on an overhead crane, his last assignment of the 

day. At approximately 4:00 p.m., claimant began to descend to a 

platform after taking readings and measurements. In the process, 

he fell four to five feet, his foot jammed, and he experienced a 

mild ache and pop in his right knee. When claimant returned to 

the shop, he did not see a supervisor. He went home with an ache 

in his knee. The next day, claimant had to stop working due to 

severe pain in his knee. At that time, he reported his September 

12, 1995 injury to Stephen Welch, employer's part owner and vice 
 3 

president of operations. 

 On September 15, 1995, claimant returned to Dr. You. 

Claimant reported a history of falling while working on a crane 

four days earlier, causing an injury to his knee with an 

increased amount of pain, soreness, and swelling. Dr. You opined 

that claimant's symptoms were consistent with the September 12, 

1995 injury described to him by claimant, rather than claimant's 

pre-existing knee injury. Dr. You opined that claimant's prior 

dislocated patella had no relation to the current anterior 

cruciate ligaments and meniscus injury. 

 "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 

S.E.2d 858, 865 (1989). Claimant's testimony, which was 

corroborated by the history he reported to Dr. You, provides 

credible evidence to support the commission's finding that 

claimant proved an identifiable incident resulting in a sudden 

mechanical change in his body. 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). 

Notice

 Claimant testified that he reported his injury to Welch the 

day after it occurred. Welch denied knowing about claimant's 
 4 

work-related injury until approximately thirty days later when 

the insurer notified employer of the accident. 

 As fact finder, the commission was entitled to accept 

claimant's version of events, and to reject Welch'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). 

Claimant's testimony constitutes credible evidence to support the 

commission's finding that he gave timely notice of the September 

12, 1995 injury by accident to employer. 

 In rendering its decision, the commission considered Welch's 

testimony, and resolved any inconsistencies between his testimony 

and claimant's testimony in favor of claimant. "In determining 

whether credible evidence exists, 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.

Marketing

 It is well settled that 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. 
 5 

App. 459, 464, 359 S.E.2d 98, 101 (1987). 

 Dr. You testified that claimant could have returned to 

part-time, light-duty work as of September 15, 1995. No evidence 

proved that claimant made any effort to market his residual work 

capacity. Claimant argues that because he was released only to 

part-time employment, he should not be penalized for failing to 

market his residual capacity by suffering a complete loss of wage 

benefits. The Workers' Compensation Act ("the Act") provides no 

exception for employees released to part-time light-duty work 

versus full-time light-duty work with respect to that employee's 

duty to market his or her residual work capacity. Accordingly, 

we conclude that this argument is without merit. 

 Claimant also contends that because employer wrongfully 

withheld medical care, claimant should not be penalized for his 

failure to market his residual capacity. Again, this argument is 

without merit. No evidence proved employer wrongfully withheld 

medical care. Moreover, the Act does not support such an 

argument. 

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

 Affirmed.