                    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.
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



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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



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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.




                                   4
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.




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