                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


NEWPORT NEWS SHIPBUILDING AND
 DRY DOCK COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 0954-02-1                         PER CURIAM
                                               AUGUST 27, 2002
JOSEPH W. BURNETT, JR.


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Christopher R. Hedrick; Mason, Cowardin &
             Mason, P.C., on brief), for appellant.

             (Gregory E. Camden; Montagna, Breit, Klein &
             Camden, LLP, on brief), for appellee.


     Newport News Shipbuilding and Dry Dock Company (employer)

contends the Workers' Compensation Commission erred in finding

that Joseph W. Burnett, Jr. (claimant) proved (1) his left leg

condition was a compensable consequence of his 1992 right knee

injury; and (2) he adequately marketed his residual work

capacity after July 10, 2000.     Upon reviewing the record and the

parties' briefs, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.

Rule 5A:27.




     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                   I.   Compensable Consequence

     On appeal, we view the evidence in the light most favorable

to the prevailing party below.     R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).     "The

actual determination of causation is a factual finding that will

not be disturbed on appeal if there is credible evidence to

support the finding."   Ingersoll-Rand Co. v. Musick, 7 Va. App.

684, 688, 376 S.E.2d 814, 817 (1989).

     In ruling that claimant proved his left knee condition was

a compensable consequence of his May 9, 1992 compensable work

injury to his right knee, the commission found as follows:

          The compensable May 9, 1992, right knee
          accident required 2 arthroscopy procedures
          and a total knee replacement. We have no
          evidence that before the 1992 accident, the
          claimant had any problem or a diagnosis of
          arthritis in his left knee. It was only
          after two arthroscopy procedures to the
          right knee that the claimant first reported
          on November 4, 1998 a problem with the left
          knee. While it appears that from the degree
          of arthritis in the left knee it pre-existed
          the accident, Dr. [Glenn] Nichols, the
          treating doctor, causally related the
          deterioration of the knee to the need to
          shift weight to the left knee because of the
          right knee surgeries. Dr. Nichols has
          stated that without the right knee injury he
          could not say that the claimant would have
          required treatment for the left knee. We
          find the opinion of Dr. Nichols to be more
          persuasive than that of Dr. [Patrick W.]
          O'Connell who examined the claimant one time
          at the request of the employer and
          Dr. [David] Tornberg who only reviewed
          medical records.


                                 - 2 -
     The medical records and opinions of the treating physician,

Dr. Nichols, coupled with claimant's testimony, constitute

credible evidence to support the commission's findings.    As fact

finder, the commission was entitled to weigh the medical

evidence, to accept Dr. Nichols' opinions, and to reject the

contrary opinions of Drs. O'Connell and Tornberg.    "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).     Furthermore, "[i]n 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).

                            II.   Marketing

     "What constitutes a reasonable marketing effort depends on

the facts and circumstances of each case."     The Greif Cos. v.

Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314, 318 (1993) (citation

omitted).    When the commission's factual determinations are

supported by credible evidence, they will not be disturbed on

appeal.     Wall St. Deli, Inc. v. O'Brien, 32 Va. App. 217,

220-21, 527 S.E.2d 451, 453 (2000).     The commission determines

the weight to give the various criteria it considers.     National

Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d 31, 34

(1989) (citing relevant factors).
                              - 3 -
     In holding that claimant adequately marketed his residual

work capacity, the commission found as follows:

            [C]laimant has attended the Job Club on two
            occasions. He has worked with at least
            three job counselors who have been
            unsuccessful in locating a position within
            his physical capacity. He has registered
            with the Virginia Employment Commission.
            While the claimant may have applied for some
            positions that a vocational rehabilitation
            specialist would not deem appropriate, this
            does not negate that his consistent actions
            of applying anywhere that a job was
            available were such as to demonstrate a
            genuine effort to locate possible
            employment. While some of the jobs that the
            claimant contacted were clearly not within
            his work restrictions, we find that a number
            of them were. We do not find that it was
            unreasonable for the claimant to apply for
            desk clerk positions particularly since a
            vocational counselor previously identified
            this as a possible job. The claimant also
            noted seeing desk clerks sitting. Based on
            the totality of the evidence including the
            inability of vocational counselor's to
            locate employment, we find that in this case
            the claimant sufficiently marketed his
            remaining capacity.

     As fact finder, the commission weighed claimant's evidence

and accepted his testimony and evidence regarding his marketing

efforts.   It is well settled that credibility determinations are

within the fact finder's exclusive purview.    Goodyear Tire &

Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437

(1987).    In light of the nature and extent of claimant's

disability; his training, age, experience and education; the

nature and extent of his job search; the intent of his job

search; availability of jobs in the area; and his cooperation
                                - 4 -
with three vocational counselors who failed to locate suitable

employment for him, the commission could reasonably conclude

that claimant adequately marketed his residual work capacity.

The fact that some of the jobs claimant applied for may have

arguably entailed duties outside his work restrictions did not

automatically preclude a finding by the commission that he

adequately marketed his residual work capacity.

     Because the commission's decision was based upon credible

evidence, it will not be disturbed on appeal.

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

                                                        Affirmed.




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