                    COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Richmond, Virginia


FORMEX, INC./W. B. GOODE COMPANY, INC.
and
AMERICAN GUARANTEE AND LIABILITY INSURANCE COMPANY

v.         Record No. 1493-95-2          MEMORANDUM OPINION *
                                      BY JUDGE JOSEPH E. BAKER
CHARLES RANDAL MILEY                       MARCH 12, 1996


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Joseph C. Veith, III (Montedonico, Hamilton &
           Altman, P.C., on briefs), for appellants.

           Laura Large Geller (Geoffrey R. McDonald;
           McDonald & Snesil, P.C., on brief), for
           appellee.



     In this appeal from a decision of the Workers' Compensation

Commission (commission) by Formex, Inc./W. B. Goode Company, Inc.

and American Guarantee and Liability Insurance Company, its

insurance carrier, (jointly referred to herein as employer), the

dominant issue presented is whether the commission erred when it

entered an award in favor of Charles Randal Miley (claimant) for

benefits effective beyond July 7, 1993 and specifically beginning

August 1, 1994 and continuing.    A secondary issue to be

considered is whether the commission wrongfully held that

claimant did not forfeit his benefits during the period December

21, 1992 to February 18, 1993.    Finding no error, we affirm the

decision of the commission.
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     We must view the evidence in the light most favorable to

claimant, as the prevailing party below, and the fact that

contrary evidence may be found in the record is of no consequence

if credible evidence supports the commission's findings.      See

Manassas Ice & Fuel Co. v. Farrar, 13 Va. App. 227, 229, 409

S.E.2d 824, 826 (1991), and cases there cited.   Viewed

accordingly, the record discloses that employer manufactures

steel curbing and bumpers.    On November 19, 1992, claimant was

employed with employer as a shop foreman.   On that date, claimant

sustained a compensable injury to his left shoulder as he and a

fellow employee were moving a piece of steel curbing.     Later that

day, claimant was seen by Dr. John G. Cametas, who diagnosed

claimant's injury as an AC joint tear of the left shoulder.      Dr.

Cametas released claimant for light-duty work.   Claimant returned

to his usual employment but found that he could not perform the

duties required by his job.   Employer refused to honor Dr.

Cametas's restrictions to limit his work to light duty.    The

commission found that claimant was justified in refusing to

accept employer's offer of employment which required him to

perform his pre-injury duties.
     The record discloses some conflict in claimant's job

description.   Claimant testified that he was a working foreman

and would, on occasion, lift materials weighing between 200 and

250 pounds.    Former co-workers, Danny Lightfoot, who now performs

claimant's job, and Mike Ketchum, testified that although



                                 - 2 -
claimant would occasionally help lift something, this was not a

requirement of claimant's job.    The commission found that

claimant's job required that, on occasion, with the assistance of

a fellow employee, he would lift items weighing as much as 250

pounds.

     Employer did not contend that claimant forfeited his right

to compensation by refusing the employment offered by employer,

but rather employer contended that claimant failed to market his

residual capacity by failing to make a reasonable effort to find

employment within his capability.    Claimant's evidence of efforts

to find employment subsequent to being released to light duty on

April 21, 1993 consisted primarily of a list of 152 companies

that he contacted.   The list was of dye cast foundries and

similar companies located throughout the country, with only one

company in Virginia listed.   With respect to these companies,

claimant presented no evidence of the contact person, when the

company was contacted, what the response to the contact was, the

type of position sought, or whether the company was hiring.    The

list contained a handwritten notation of a listing with the

Virginia Employment Commission (VEC) during the period from

1992-1994.   No supporting documentation from the VEC was

submitted and claimant gave no testimony as to what, if any,

activities he undertook in conjunction with the VEC.   Claimant

stated that probably one-quarter of the contacts were made after

September 13, 1993, when his deposition was taken by employer.



                                 - 3 -
     Three weeks from the date of claimant's injury, Dr. Cametas

noted no improvement in claimant's injury and referred him to Dr.

Kim Sellergren, an orthopedic surgeon.   Dr. Sellergren diagnosed

claimant's injury as a first or second degree AC joint

separation.   After claimant was given MRI tests, Dr. Sellergren

directed that claimant not work from December 18, 1992 to

December 21, 1992.   In a letter to Dr. Cametas, Dr. Sellergren

wrote that claimant "should do no work requiring anything other

than the lightest use (paperwork) of left arm."
     On February 19, 1993, claimant underwent surgery on his

injured shoulder.    In June 1993, Dr. Sellergren opined that he

could offer no further treatment to claimant to improve his

condition; however, he then referred claimant to Dr. Richard

Caspari, another orthopedic surgeon in Dr. Sellergren's group,

who last saw claimant on July 7, 1993.   At that time, Dr. Caspari

concluded, "[w]e cannot find any evidence of biomechanical

shoulder instability or reasons for this pain.    We are therefore

referring [claimant] to Dr. Ed Isaacs, a neurologist, to see if

there is possibly a cervical disc that is giving [claimant] this

problem.   We do not feel that physical therapy is warranted any

longer."   Thereafter, Drs. Sellergren and Caspari turned over

management of claimant's case to Dr. Isaacs, opining that from an

orthopedic view there were no further physical restrictions and

that claimant could return to work "unless further restrictions

were . . . warranted by Dr. Isaacs."    From that, the commission




                                - 4 -
found that as of April 22, 1994, there was no further indication

of total work incapacity.

     On July 21, 1993, claimant was seen by Dr. Isaacs.      At that

time, Dr. Isaacs stated, "I am concerned . . . that because of

the surgery [claimant] cannot generate enough stable power in

that left shoulder to do the heavy kind of work he had done

before . . . ."   After a September 7, 1993 visit, Dr. Isaacs

reported, "[claimant's] major difficulties involve working with

his arms extended in front of him and trying to provide some type

of repetitive action which causes him increased pain and

discomfort."   Dr. Isaacs treated claimant until September 30,

1994 and thereafter refused to see claimant because he was not

being paid for his services.    Dr. Isaacs's last report made by a

November 7, 1994 letter stated that when he last saw claimant,

further additional services were required.     The commission noted

"that there was no evidence in the record that [claimant] was

ever released from his light duty status."     That observation is

supported by the record.
     The commission reviewed the evidence claimant contended

showed that he had attempted to obtain selective employment

suitable to his residual capacity.      In its opinion, it found that

evidence to be insufficient to meet claimant's burden to show he

had made the required effort.   For that reason, the commission

declined to award benefits from April 22, 1993 to August 1, 1994,

the latter date being the date claimant obtained other employment




                                - 5 -
at a wage of $200 weekly.   We find the evidence sufficient to

support the commission's finding that beginning August 1, 1994

and continuing, claimant was entitled to an award of benefits for

his November 19, 1992 injury.

     Employer further argues that the commission erred when it

held that claimant was entitled to compensation benefits between

December 21, 1992 and February 19, 1993.   Employer asserts that

the record fails to show that during that period, after refusing

to return to his pre-injury employment, claimant sufficiently

marketed his residual capacity.    Cases cited by claimant vary as

to the time limit a claimant will be justified in not marketing

his or her residual capacity.    We have reviewed those cases and

find that a cardinal principle declared is that each case must be

judged by the commission based upon its particular facts.    See

National Linen v. McGuinn, 8 Va. App. 267, 380 S.E.2d 31 (1989).

In addition, on appeal, those facts must be viewed in the light

most favorable to the party in whose favor the commission ruled,

here that being claimant.   See Holley Farms Food v. Carter, 15

Va. App. 29, 422 S.E.2d 165 (1992).

     It is obvious that between December 21, 1992 and February

19, 1993, claimant required substantial treatment.   On December

18, 1992, he underwent an MRI.    From that date, Dr. Sellergren

restricted claimant from any work until December 21, 1992.   On

February 19, 1993, claimant underwent surgery.   It is reasonable

to assume that the surgery was being planned during the period




                                 - 6 -
employer asserts that claimant should have been seeking selective

employment.   We find that a reasonable view of the evidence

supports the commission's decision holding that claimant was

justified in not seeking employment during the subject period.

     For the reasons stated, the decision of the commission is

affirmed.

                                                   Affirmed.




                               - 7 -
