                      COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton and Kelsey
Argued by teleconference


JAUNT, INC. AND
 LIBERTY MUTUAL INSURANCE COMPANY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1156-02-2         CHIEF JUDGE JOHANNA L. FITZPATRICK
                                              JANUARY 21, 2003
HAROLD E. CLEMENT, JR.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Roger L. Williams (John T. Cornett, Jr.;
          Williams & Lynch, on brief), for appellants.

          (John R. Walenten, on brief), for appellee.
          Appellee submitting on brief.


     Jaunt, Inc. (employer), contends the Workers' Compensation

Commission (commission) erred in finding that Harold E. Clement,

Jr. (claimant) sustained an injury arising out of his employment

on April 2, 2001 and that he adequately marketed his residual

capacity after the injury.   Finding no error, we affirm the

commission's decision.

                             I.   FACTS

     "'Decisions of the commission as to questions of fact, if

supported by credible evidence, are conclusive and binding on

this Court.'"   WLR Foods v. Cardosa, 26 Va. App. 220, 230, 494

S.E.2d 147, 152 (1997) (quoting Manassas Ice & Fuel Co. v.


     * Pursuant to Code § 17.1-413 this opinion is not
designated for publication.
Farrar, 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991)).

"Where reasonable inferences may be drawn from the evidence in

support of the commission's factual findings, they will not be

disturbed by this Court on appeal."     Hawks v. Henrico County

School Board, 7 Va. App. 398, 404, 374 S.E.2d 695, 698 (1988).

"[The Workers' Compensation Act] has always required the

claimant to carry the burden of proving, by a preponderance of

the evidence, . . . an 'injury by accident' . . . arising out of

and . . . in the course of, the employment."      Morris v. Morris,

238 Va. 578, 584, 385 S.E.2d 858, 862 (1989).     "On appeal, we

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

who prevailed before the commission."     Allen & Rocks, Inc. v.

Briggs, 28 Va. App. 662, 672, 508 S.E.2d 335, 340 (1998)

(citations omitted).

     So viewed, the evidence proved that on April 2, 2001,

claimant, a shuttle bus driver who provided transportation for

disabled people, picked up Roy Shull (Shull) and drove him to

the hospital.   Shull was "tough to transport."    He was confined

to a wheelchair with his legs extended and surrounded by boards

and pillows.    When they arrived at the hospital, claimant knelt

down and leaned over to unbuckle the straps holding the

wheelchair and felt something "pop" in his back.     Claimant

stated, "I leaned over top of [Shull's] legs to unstrap the left

side, and something popped and pulled in my back.     Shull

testified by deposition that claimant "was down on the floor and

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he got up off the floor and that's when he hurt his back."

Claimant immediately reported the injury to his employer and

sought medical treatment the same day.

     Claimant was initially diagnosed with lumbosacral strain

and given a work excuse valid through April 4, 2001.    He was

released to return to work on April 5, 2001 with a five-pound

lifting restriction.   On April 9, 2001 claimant was restricted

to a five-hour workday with no heavy lifting or wheelchair duty

on April 10 and April 13.   A later MRI revealed a disc

herniation, and claimant was excused from all work until June 4,

2001 and later to June 15, 2001 when his treating physician,

Dr. J. Devon Lowdon, released him to restricted duty.     Claimant

testified he is able to sit for only "15 to 30 minutes at a

stretch."

     During claimant's periods of temporary partial disability,

he briefly worked for employer and began his own home-based

computer company.   He stated he ran a computer business two

years prior to his injury, that included "computer hardware,

software and training on the internet."   After his injury, he

modified this business into a "new start-up of remote back up

for computers."   He invested "a significant amount of money" in

the business, purchased the software, developed a marketing

plan, bought mailing lists, learned the software and took

additional training.   He had received no income from this

business at the time of the hearing.

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     The deputy commissioner found that claimant was placed in

an awkward position when he tried to unstrap Mr. Shull and his

"movement . . . was different from a normal bending down or

rising from a squatting position without having been in any

twisted position" and thus, the injury arose out of and in the

course of claimant's employment.   He also found claimant was

totally disabled April 3, April 4 and May 21 through June 15 and

partially disabled April 5 through April 13, May 18 through May

20 and June 16 through the present and continuing.

     The commission, upon review, agreed.

          Testimony and medical records all confirm
          that the claimant was on his knees inside a
          van leaning over a patient in a wheelchair
          trying to buckle or unbuckle the seatbelt
          when he felt a painful pop in his back.
          This clearly rises out of the employment.
          He was in an awkward position and the injury
          was related to his working conditions.

     The commission also affirmed the deputy commissioner's

findings regarding the periods of disability.

          As of June 15, 2001, although Dr. Lowdon
          indicated a reduced work status, he was not
          yet "fit for office duty." The claimant
          meanwhile worked part-time for the employer
          for various periods of time, and invested
          significant amounts of energy and his own
          money into trying to start up a home-based
          computer back-up business. Lacking any
          assistance from the employer, who denied the
          claim we find that the claimant has made
          reasonable and good faith efforts to utilize
          his residual capacity.

     Employer appealed that decision.




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                      II.    Injury by Accident

     Employer first contends the commission erred in finding

claimant's accident arose out of his employment.     It argues that

claimant's act of bending while unstrapping his wheelchair-bound

patient is not a risk of employment.      The question of "[w]hether

an accident arises out of the employment is a mixed question of

law and fact and is reviewable by the appellate court."      Plumb

Rite Plumbing Service v. Barbour, 8 Va. App. 482, 483, 382

S.E.2d 305, 305 (1989).     An injury arises out of the employment

where "[t]here is apparent to the rational mind upon

consideration of all the circumstances, a causal connection

between the conditions under which the work is required to be

performed and resulting injury."      Bradshaw v. Aronovitch, 170

Va. 329, 335, 196 S.E. 684, 686 (1938).     "It is well established

that the commission's determination of causation is a factual

finding that will not be disturbed on appeal if supported by

credible evidence."   Corning, Inc. v. Testerman, 25 Va. App.

332, 339, 488 S.E.2d 642, 645 (1997).

     "'"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."'"      Id. at 339, 488 S.E.2d at 645 (quoting

Ogden Allied Aviation Servs. v. Shuck, 18 Va. App. 756, 758, 446



                                  - 5 -
S.E.2d 898, 899 (1994) (quoting Morris, 238 Va. at 589, 385

S.E.2d at 865)).

     "[T]he claimant, at the time of the injury, performed his

work task in 'an unusual or awkward position.'   As a

consequence, because the injury . . . was caused by exertion on

that occasion that was peculiar to his employment, his injury

arose out of his employment."    Shuck, 18 Va. App. at 759, 446

S.E.2d at 899-900.

     In the instant case, claimant was positioned on his knees,

leaning over a passenger who was confined to a wheelchair with

both legs extended and surrounded by boards and pillows.      He had

been warned by another driver that Shull was difficult "to strap

in and out" because of his unusual position in the wheelchair.

Both claimant's testimony and Shull's deposition testimony

support claimant's description of the injury and his unusual and

awkward position when he felt the "pop" in his back.     Although

claimant testified that he was unbuckling the belt and Shull

testified claimant was buckling the belt, the deputy

commissioner accepted as true claimant's testimony.     The

commission found that whether claimant was "trying to buckle or

unbuckle the seat belt . . . [t]his clearly arises out of

employment."   Claimant felt pain, reported the injury

immediately and sought medical treatment that day.    Credible

evidence supports the commission's finding that claimant's

injury arose out of his employment.

                                - 6 -
                            III.   Marketing

     Employer next contends that the claimant's failure to

adequately market his residual work capacity bars his receipt of

benefits.    We agree with the commission that claimant "made

reasonable and good faith efforts to utilize his residual

capacity."

             [I]n deciding whether a partially disabled
             employee has made reasonable effort to find
             suitable employment commensurate with his
             abilities, the commission should consider
             such factors as: (1) the nature and extent
             of employee's disability; (2) the employee's
             training, age, experience, and education;
             (3) the nature and extent of employee's job
             search; (4) the employee's intent in
             conducting his job search; (5) the
             availability of jobs in the area suitable
             for the employee, considering his
             disability; and (6) any other matter
             affecting employee's capacity to find
             suitable employment. The commission . . .
             determines which of these or other factors
             are more or less significant with regard to
             the particular case.

National Linen Service v. McGuinn, 8 Va. App. 267, 272-73, 380

S.E.2d 31, 34-35 (1989) (footnotes omitted).

     "What constitutes a reasonable marketing effort depends on

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

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

credible evidence exists to support a factual finding is a

question of law which is properly reviewable on appeal.     See

Ablola v. Holland Rd. Auto Ctr., Ltd., 11 Va. App. 181, 183, 397

S.E.2d 541, 542 (1990).


                                   - 7 -
     The medical reports support the commission's determination

of the duration of claimant's periods of disability.   The

commission also found that claimant operated his own

computer-related business prior to his employment with Jaunt.

The record contains credible evidence that while on a reduced

work status, claimant worked for employer part-time.   After

claimant left the part-time employment, he "invested significant

amounts of energy and his own money" in his attempt to establish

another computer-related business.    In view of claimant's prior

business experience, part-time work, and efforts to re-establish

his business, we hold that credible evidence supports the

finding that "claimant has made reasonable and good faith

efforts to utilize his residual capacity."   Thus, we affirm.

                                                         Affirmed.




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