                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


THE TOWN OF TAPPAHANNOCK MAINTENANCE DEPARTMENT
 AND FIDELITY & CASUALTY INSURANCE COMPANY

v.   Record No. 2240-96-2                        MEMORANDUM OPINION *
                                                     PER CURIAM
DALL REYNOLDS                                       MARCH 4, 1997


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Kathryn Spruill Lingle; Midkiff & Hiner, on
           brief), for appellants.
           (Robert L. Flax; Flax, Embrey & Stout, on
           brief), for appellee.



     The Town of Tappahannock Maintenance Department and its

insurer (hereinafter collectively referred to as "employer")

contend that the Workers' Compensation Commission (commission)

erred in finding that (1) Dall Reynolds (claimant) proved he

sustained an injury by accident arising out of and in the course

of his employment on April 5, 1994; and (2) claimant proved that

he made a good faith effort to market his residual work capacity

after August 18, 1994.   Pursuant to Rule 5A:21(b), claimant

raises the additional question of whether the commission erred in

finding that employer is not responsible for unauthorized medical

treatment rendered by Drs. Robert W. Poole and Michael J. Decker

and The Riverside Hospital emergency room.   Upon reviewing the

record and the briefs of the parties, we conclude that this

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
appeal is without merit.    Accordingly, we summarily affirm the

commission's decision.    Rule 5A:27.

                                  I.

        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).

        Claimant testified that on April 5, 1994, he and a coworker

lifted a fifty-five gallon barrel full of wet grass clippings and

dumped the clippings into a truck.      Five to ten minutes later,

while riding in the truck, claimant felt a sharp pain in his

back.    The pain continued the remainder of his shift.   Claimant

reported the incident to his supervisor, James Hill, on the day

it occurred.    The Employer's First Report of Accident indicated

that claimant hurt his back on April 5, 1994 while lifting a

trash can.
        In holding that claimant met his burden of proof, the

commission found as follows:
               The employer argues that the claimant
          did not credibly describe an injury by
          accident on April 5, because his
          interrogatories identify April 8 as the date
          of the accident, the emergency room record
          reflects pain since April 7, and the claimant
          was unsure in his testimony of the date. The
          employer also argues that the pain was five
          to ten minutes after the lifting incident and
          therefore cannot be linked to the lifting.
          It is well-established that in order to prove
          a compensable injury by accident it is not
          necessary that the pain be contemporaneous
          with the incident. A valid claim will not be
          denied because of confusion about the date of
          the incident. We agree with the Deputy
          Commissioner that the claimant credibly


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          described an injury by accident which
          occurred when he lifted a heavy barrel of
          grass cuttings. Although the initial
          emergency room records do not identify such
          an incident, other medical reports generally
          corroborate this testimony.


     "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, 589, 385 S.E.2d

858, 865 (1989).   Claimant's undisputed testimony provides

credible evidence to support the commission's finding.    Thus,

that finding is conclusive on this appeal.    James v. Capitol

Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488

(1989).

     In rendering its decision, the commission considered the

medical histories, claimant's interrogatory answers, and

claimant's testimony and resolved any conflicts in this evidence

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.




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                                 II.

     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.     Great

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d

98, 101 (1987).   "What constitutes a reasonable marketing effort

depends upon the facts and circumstances of each case."       The

Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314,

318 (1993).   We have discussed factors which the commission

should consider in deciding whether a claimant has made

reasonable good faith efforts to market his remaining capacity:
          (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.


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

31, 34 (1989) (footnotes omitted).     In reviewing the commission's

findings, "we view the evidence in the light most favorable to

. . . the prevailing party before the commission."     Id. at 270,

380 S.E.2d at 33.

     In awarding temporary total disability benefits to claimant,

the commission found that claimant marketed his residual work

capacity.    In so ruling, the commission found as follows:
                 We find that under the circumstances of
            this case, the claimant was not able to



                                  4
          engage in an extensive marketing effort. He
          has experience with only manual labor and
          truck driving, neither of which are feasible
          pursuits because of his back pain and
          medications. His illiteracy prevents him
          from obtaining a substantial number of light
          duty employments. Because the employer
          denied the claim, the claimant had no money
          to fund his job search to more populated
          communities, nor did he have any vocational
          rehabilitation assistance. Given the
          claimant's limitations and the paucity of
          employment possibilities in his community, we
          find that the claimant's minimal efforts are
          sufficient and he is entitled to benefits
          during his period of disability.

     The commission considered the factors we set forth in

National Linen and its findings are amply supported by claimant's

testimony and the medical records.      Accordingly, those findings

are conclusive upon us on appeal.

                                 III.

     "Without a referral from an authorized treating physician,

Code § 65.2-603(C) provides for treatment by an unauthorized

physician in an 'emergency' or 'for other good reason.'"

Shenandoah Products, Inc. v. Whitlock, 15 Va. App. 207, 212, 421

S.E.2d 483, 485 (1992).
          [I]f the employee, without authorization but
          in good faith, obtains medical treatment
          different from that provided by the employer,
          and it is determined that the treatment
          provided by the employer was inadequate
          treatment for the employee's condition and
          the unauthorized treatment received by the
          claimant was medically reasonable and
          necessary treatment, the employer should be
          responsible, notwithstanding the lack of
          prior approval by the employer.

Id. at 212, 421 S.E.2d at 486.



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     Contrary to claimant's assertions, no evidence in the record

established that Drs. Robert E. Briggs or Glenn J. Spiegler, the

authorized treating physicians, refused to treat claimant or that

their treatment was ineffective.       Accordingly, we cannot find

that the commission erred in refusing to hold employer

responsible for the cost of unauthorized medical treatment

rendered by Drs. Poole and Decker and the Riverside Hospital

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

                                                            Affirmed.




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