                    COURT OF APPEALS OF VIRGINIA


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


TYSON FOODS, INC.
                                    MEMORANDUM OPINION * BY
v.         Record No. 0510-96-3      JUDGE LARRY G. ELDER
                                       OCTOBER 1, 1996
CAROLYN ELEANOR PAYNE-MARSHALL


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Thomas G. Bell, Jr. (Timberlake, Smith,
           Thomas & Moses, P.C., on brief), for
           appellant.
           George L. Townsend (Chandler, Franklin &
           O'Bryan, on brief), for appellee.



     Tyson Foods, Inc. (employer) appeals from the Workers'

Compensation Commission's (commission) award of temporary total

disability benefits to Carolyn Eleanor Payne-Marshall (claimant).

 Employer contends that the commission erred in determining

(1) that claimant sustained an injury by accident despite the

deputy commissioner's ruling that claimant's testimony was not

credible; and (2) that claimant had no duty to market her

residual work capacity after her treating physician released her

to light duty work without setting forth her work restrictions.

Agreeing with employer's second argument, we reverse that part of

the commission's decision awarding claimant temporary total

disability benefits after January 9, 1995, the date her physician

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
released her to light duty work.      We affirm the remainder of the

commission's decision.

                                 I.

             TESTIMONY TO ESTABLISH INJURY BY ACCIDENT

     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).      "It

is fundamental that a finding of fact made by the Commission is

conclusive and binding upon this court on review."      Department of

Corrections v. Powell, 2 Va. App. 712, 714, 347 S.E.2d 532, 533

(1986).   The fact that contrary evidence exists in the record is

of no consequence if credible evidence supports the commission's

findings.   Wagner Enters., Inc. v. Brooks, 12 Va. App. 890, 894,

407 S.E.2d 32, 35 (1991).

     Employer contends that the commission had no basis to

reverse the deputy commissioner's decision that claimant failed

to prove an identifiable injury by accident and that the

commission failed to articulate a reason for doing so.     Employer

specifically contends "that once the issue of a witness'

credibility has been decided by the deputy commissioner hearing

the case ore tenus, this finding binds the full commission."
Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 380, 363

S.E.2d 433, 436 (1989).   We disagree with employer's application

of the law to the facts of this case.

     In Pierce, we held that where the deputy commissioner's




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findings are based on a specific, recorded observation of a

witness' demeanor or appearance, the commission cannot

arbitrarily disregard those findings.    Id. at 382, 363 S.E.2d at

437.   In Pierce, unlike this case, the deputy commissioner

provided a detailed description of the claimant's demeanor and

appearance, stating in part:

                 [Claimant was] repeatedly evasive in his
            answers to the extent that he gave the clear
            appearance of intentionally trying to avoid
            giving a direct response to an uncomplicated
            question. [Claimant] . . . accomplished this
            by his argumentative answers to such question
            by defense counsel. This evasiveness which
            was clearly apparent to this Hearing
            Commissioner, coupled with the inconsistent
            testimony of the [claimant] as contrasted
             to his signed statement on the hospital pass
            . . . raises a substantial question as to the
            credibility of this [claimant].

Id. at 379-80, 363 S.E.2d at 436.

       The commission has no duty to explain its decision favoring

the testimony of one witness over another "[a]bsent a specific

recorded observation regarding the behavior, demeanor or

appearance of [the witness]."    Bullion Hollow Enters. v. Lane, 14

Va. App. 725, 729, 418 S.E.2d 904, 907 (1992).    In this case, the

deputy commissioner did not make a specific, recorded observation

of the claimant's demeanor.    The commission, therefore, was

entitled to make its own credibility determination based on the

record before it without articulating a reason for not following

the deputy commissioner's credibility findings.    Kroger Co. v.

Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 881 (1992); Lane,



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14 Va. App. at 729, 418 S.E.2d at 907.

     We agree with the commission's determination that the

conflicts between claimant's testimony and the recorded histories

are not substantial, "and in most instances, they are

satisfactorily explained."   The probative weight that the

commission gave the conflicting evidence was "within its province

and not subject to our review."     Birdsong Peanut Co. v. Cowling,

8 Va. App. 274, 279, 381 S.E.2d 24, 27 (1989).
     The commission accurately summarized the substantial and

credible evidence in the record that supports claimant's version

of events, which factual account binds us on appeal.    Briefly,

the evidence, viewed in the light most favorable to claimant,

shows that after midnight on October 21, 1994, claimant lifted a

tub full of boxes of chicken off of a conveyor belt, at which

time she was pulled down and injured her back and neck area.

Claimant immediately informed her sister and a supervisor of her

accident, before attempting to receive medical attention from a

company nurse.   Claimant consulted a nurse later that day,

remained home in pain for the next three days, and then received

medical treatment at the hospital and from Dr. Mettetal.     A

herniated disc was diagnosed and successfully treated surgically.

This evidence proved an injury by accident arising out of and in

the course of claimant's employment.     See Code § 65.2-101.

     We therefore hold that the commission did not err in

reversing the deputy commissioner's decision without providing a



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rationale for disregarding the deputy commissioner's general

credibility findings.




                               -5-
                                  II.

                          DUTY TO MARKET

     The duty of a claimant to market his or her residual

capacity arises when the claimant is partially disabled.

National Linen Serv. v. McGuinn, 8 Va. App. 267, 268, 380 S.E.2d

31, 32 (1989); Code § 65.2-510.    Failure of a partially disabled

employee to satisfy the duty to make reasonable efforts to market

residual work capacity results in a temporary suspension of

benefits.   Great Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459,

464, 359 S.E.2d 98, 100 (1987).    "It is not required that a

workers' compensation claimant who suffers partial disability be

informed by her physician that she may undertake restricted work

in order for her to be obligated to make reasonable efforts to

market her residual skills."   Ridenhour v. City of Newport News,

12 Va. App. 415, 416, 404 S.E.2d 89, 89 (1991).   The claimant is

required to make reasonable efforts to market his or her

remaining work capacity when under all the facts and

circumstances, the claimant should reasonably and objectively

perceive that he or she can return to gainful employment.       See

id. at 418, 404 S.E.2d at 90; Bateman, 4 Va. App. at 467, 359

S.E.2d at 102.

     In this case, the uncontradicted evidence proved that Dr.

Gillespie informed claimant that beginning on January 9, 1995,

she was cleared to return to light duty employment.    Dr.

Gillespie's report included the following excerpt:
          I have recommended that claimant start



                                  -6-
          looking for a light duty type job. She still
          has some complaints of neck discomfort as
          well as some axillary pain on the left side.
           She has stated that she has no intentions of
          going back to a manual labor type job, and
          may be planning on returning to her
          schooling. I have informed her that she
          could be cleared for return to light duty
          work at this point, and have recommended that
          she go ahead and seek this type of
          employment.


While nothing in the record reveals that Dr. Gillespie specified

the types of light duty employment that suited claimant's

physical limitations, claimant never asked for such

specifications.   In light of these circumstances, we hold that

the commission erred in finding that claimant had no duty to

market her residual work capacity.    Claimant failed to present

any evidence to show why she failed to make reasonable attempts

to locate suitable light duty employment.   For example, claimant

may have presented evidence that she did not understand that she

had been released to light duty status or that she was confused

over her work restrictions or that she had problems not known to

Dr. Gillespie that precluded her return to work.   In the absence

of any evidence of this nature, the commission lacked a basis to

determine that claimant's inaction was reasonable after Dr.

Gillespie in clear and unequivocal terms "informed her that she

[was] cleared for return to light duty work at this point."
     The fact that a treating physician does not specify the

precise physical limitations on a claimant's release to light

duty employment does not mean that the claimant is excused from




                                -7-
making further inquiry into the matter.   As we stated in

Ridenhour, 12 Va. App. at 416, 404 S.E.2d at 89, a claimant who

suffers partial disability need not even be informed by her

physician "that she may undertake restricted work in order for

her to be obligated to make reasonable efforts to market her

residual skills."   It follows that where a claimant's physician

does inform her of a release to light duty, the claimant is

required to take reasonable efforts toward marketing her residual

skills, even where the physician does not provide her with

specific instructions concerning appropriate light duty work.
     Accordingly, we reverse that part of the commission's

decision awarding claimant temporary total disability benefits

after January 9, 1995.   We affirm the other portions of the

commission's decision.
                                              Affirmed in part and
                                                 reversed in part.




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