                     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.

     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

     *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
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



                               - 4 -
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




                               - 5 -
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.




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