                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


NEW RIVER CASTINGS
AND
ARGONAUT INSURANCE COMPANY

v.    Record No. 1027-96-3

KEVIN C. HURST
                                               MEMORANDUM OPINION *
AND                                                PER CURIAM
                                                NOVEMBER 12, 1996
KEVIN C. HURST
v.    Record No. 1149-96-3

NEW RIVER CASTINGS
AND
ARGONAUT INSURANCE COMPANY


          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            (J. Gorman Rosenberger, Jr.; Wilson, Garbee &
            Rosenberger, on briefs), for New River
            Castings and Argonaut Insurance Company.

            (Deborah W. Dobbins; Gilmer, Sadler, Ingram,
            Sutherland & Hutton, on briefs), for Kevin C.
            Hurst.



      New River Castings and its insurer (hereinafter collectively

referred to as "employer") contend that the Workers' Compensation

Commission ("commission") erred in finding that Kevin C. Hurst

("claimant") proved (1) he sustained a sudden mechanical change

in his body as the result of an identifiable work-related

incident on September 26, 1994; (2) a causal connection existed

between his right scapula condition and the September 26, 1994
      *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
work-related incident; and (3) he remained on light-duty status

as a result of the September 26, 1994 work-related incident.

(Record No. 1027-96-3).    Claimant contends that the commission

erred in finding that he failed to prove he made a good faith

effort to market his residual work capacity after March 17, 1995.

 (Record No. 1149-96-3).   Upon reviewing the record and the

briefs of the parties, we find that these appeals are without

merit.   Accordingly, we summarily affirm the commission's

decision as to all issues raised by the parties. 1   Rule 5A:27.

            Injury by Accident   (Record No. 1027-96-3)

     On September 26, 1994, claimant had been working for

employer as a "knock-out" laborer for three weeks.    On that date,

he was using a sledgehammer to knock iron risers off spindles.

At a particular point in time, he hit the riser with the hammer

and felt a severe pain in the right middle portion of his back.

Claimant was not physically able to continue working and

immediately sought medical treatment at the first aid station.

David Daily, the first aid attendant on duty, testified that

claimant told him "he was working at the knock-out job and he was

hammering castings, degating castings.   And when he swung the

hammer down he felt a pain and he came over to first aid to get
     1
      Claimant filed a motion to remand for consideration of
after-discovered evidence. The evidence submitted by claimant
with the motion relates to a charge of discrimination claimant
filed with the Equal Opportunity Commission against employer
under the Americans with Disabilities Act. Because this evidence
does not contain any information relevant or material to the
issues on appeal, we deny claimant's motion.




                                  2
treated for that."   On October 4, 1994, Dr. Matthew Skewes

diagnosed claimant as suffering from back pain and spasms related

to the September 26, 1994 work-related incident.   Dr. Skewes

noted that claimant "thinks pulled muscle swinging - sledge

hammer." 2

     "In order to carry his burden of proving 'an injury by

accident,' a claimant must prove that the cause of his 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, 598, 385 S.E.2d

858, 865 (1989).   On appeal, factual findings made by the

commission will be upheld when supported by credible evidence.

James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382

S.E.2d 487, 488 (1989).

     The commission held that "claimant's uncontradicted

testimony, corroborated by the testimony of the emergency medical

technician, supports the finding of a sudden, identifiable

incident contemporaneous with a mechanical change in the body

which resulted in injury on September 26, 1996 [sic]."    In so

ruling, the commission found as follows:
          The claimant's uncontradicted testimony
          clearly identified a particular moment when
          he was swinging the sledgehammer that he felt
     2
      Several years before the September 1994 accident, claimant
underwent kidney surgery in the same area where he felt the
sudden pain on September 26, 1994. Dr. Sinclair Ross Mackay
opined that preexisting weakness in this area caused by the
surgery made claimant more prone to straining his right flank
area.




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          pain, followed almost immediately by swelling
          in the right flank muscles.
               It is of no moment that the claimant had
          a muscular deficiency from prior surgery.
          The employer takes the employee with all his
          pre-disposing weaknesses and infirmities.
          Thus, the employer is liable for the effects
          of the industrial accident that aggravates or
          otherwise contributes to a preexisting
          condition or other weakness to produce
          further injury.


     Claimant's uncontradicted testimony, corroborated by the

history taken by Daily and Dr. Skewes, constitutes credible

evidence to support the commission's finding that claimant

experienced an identifiable incident on September 26, 1994

resulting in a sudden mechanical or structural change in his

right flank area.

                Causation   (Record No. 1027-96-3)

     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).

     Drs. Skewes and Mackay acknowledged that claimant's right

flank pain developed at a particular point in time when claimant

swung the sledgehammer on September 26, 1994.   This testimony,

along with claimant's testimony that he had never felt this

particular pain before, constitutes credible evidence to support




                                 4
the commission's finding that claimant established the requisite

causal connection between the accident and the injury.    The

opinions of Drs. Mackay and Rollin J. Hawley that the claimant's

injury was a reasonably expected result of claimant using already

weakened muscles for three weeks is of no consequence.    "[T]he

employer takes the employee as he is and if the employee is

suffering some physical infirmity, which is aggravated by an

industrial accident, the employer is responsible for the end

result of such accident."   McDaniel v. Colonial Mechanical Corp.,

3 Va. App. 408, 414, 350 S.E.2d 225, 228 (1986).

            Light-Duty Status   (Record No. 1027-96-3)

     Drs. Mackay and Hawley opined that claimant could not return

to his heavy manual labor job with employer.   On October 24,

1994, after claimant's unsuccessful attempt to return to his

pre-injury work, Dr. Skewes restricted claimant to light-duty,

from which claimant has not been released.   In his deposition

testimony, Dr. Skewes opined that if claimant had not sustained

the September 26, 1994 accident, he would have been able to

continue working without restriction.   This testimony provides

credible evidence to support the commission's finding that

claimant remained on light-duty status.   "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).



                                 5
                 Marketing    (Record No. 1149-96-3)

     "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 Serv. v.

McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989).        A

claimant still has the burden of proving his entitlement to

benefits, and to do so he must prove 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, 100 (1987).      Unless we can say

as a matter of law that claimant's evidence was sufficient to

sustain his burden of proof, the commission's finding is binding

and conclusive upon us.      Tomko v. Michael's Plastering Co., 210

Va. 697, 699, 173 S.E.2d 833, 835 (1970).

     Employer provided claimant with light-duty work from October

15, 1994 through March 17, 1995.       When this light work ended,

claimant, a high school graduate with two years of community

college, did not begin looking for work for approximately one

month.   On April 12, 1995, he began working part-time at a

convenience store, earning $139.29 per week.      Claimant's

pre-injury average weekly wage was $518.27.      Claimant refused the

store's offer of full-time employment because his attorney

advised him to reject it and because he attended school three

hours per day.   Claimant made no other effort to find work.



                                   6
        Viewing this record in the light most favorable to employer,

and in light of the factors enumerated in McGuinn, we cannot find

as a matter of law that claimant's evidence proved he made a good

faith effort to market his residual work capacity after March 17,

1995.    Accordingly, the commission did not err in refusing to

award claimant compensation after March 17, 1995.

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

                                                           Affirmed.




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