                  COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Fitzpatrick, Judges Elder and Agee
Argued by teleconference


CLINTON FELTON JEFFERSON
                                        MEMORANDUM OPINION* BY
v.   Record No. 2318-01-3                JUDGE G. STEVEN AGEE
                                            APRIL 16, 2002
SERVITEX, INC. AND
 HARTFORD CASUALTY INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Stephen G. Bass (Carter, Craig, Bass, Blair
          & Kushner, P.C., on briefs), for appellant.

          Richard D. Lucas (Lucas & Associates, on
          brief), for appellees.


     Clinton Felton Jefferson (the claimant) appeals the

decision of the Workers' Compensation Commission (the

commission) denying his claim for disability benefits from

Servitex and its insurer, Hartford Casualty Insurance Company,

(herein, collectively, referred to as "the employer").    He

contends the commission erred in finding that he failed to

reasonably market his residual work capacity.    Pursuant to Rule

5A:21(d), the employer raises the additional questions of

whether (1) the commission erred in finding the claimant's

injury arose out of his employment and (2) the claimant was



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
entitled to temporary total disability benefits for September

12-26, 2000.    Upon review, we affirm the commission's decision.

                            I.   BACKGROUND

        As the parties are fully conversant with the record in this

case and because this memorandum opinion carries no precedential

value, only those facts necessary to a disposition of this

appeal are recited.

        The claimant worked as a route salesman for the employer.

His job duties included the delivery of laundered linens to

clients and the pick-up of the client's soiled linens.      On April

13, 2000, the claimant backed his delivery vehicle up to a

client's loading dock which was two and one-half to three feet

above the bed of the vehicle.

        The claimant went through the building to open the loading

dock door.    As was his normal practice, he then stepped down

backwards from the loading dock into the bed of the vehicle.

His left knee gave and, as he tried to recover, his left leg

gave out causing the claimant to fall backwards.      He did not

slip or trip.

        After a few minutes of lying on the vehicle bed's floor,

the claimant rose and attempted unsuccessfully to work.

        Dr. Campbell treated the claimant that day and informed him

that he had arthritis in his left knee.       The examination

reflected degenerative changes in the knee with a history of

gout.    The physician recommended the claimant not work for a few

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days.    On April 21, 2000, Dr. Campbell examined the claimant

again and released him to return to regular work.

        From April 21, 2000, through late August 2000, the

claimant, suffering pain in his left knee, continued treatment

with Dr. Campbell.    He worked his regular job during that period

of time, except for three days.

        On September 12, 2000, Dr. Campbell saw the claimant who

complained of knee pain and walked with a stiff gait.    An MRI

revealed a partial MCL tear.    The physician provided claimant

with a leave slip that read, "this is to certify that [the

claimant] is physically unable to return to work from Sept. 1,

00 until next appt.    Next appointment-Sept. 27, 00 @ 10:00."     On

September 27, 2000, the claimant was placed on light duty

restrictions, but the employer did not have a light duty

position for him.

        The claimant did not seek subsequent employment prior to

December 14, 2000.    Between December 14, 2000, and January 3,

2001, he contacted nine companies, which employed friends or

acquaintances, but none of the nine companies were hiring.

Claimant began to make these contacts after filing for benefits

with the Virginia Employment Commission, which requires benefit

recipients to contact at least two potential employers per week.

No other efforts to find employment were made by the claimant.

The claimant testified that he was unaware that he was required



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to seek employment in order to be entitled to workers'

compensation benefits.

     In addition to the testimony of the claimant and a

representative for the employer, the deputy commissioner

reviewed Dr. Campbell's submitted responses to questionnaires

provided to him from each party.    On the questionnaire from the

claimant, the physician indicated his agreement to the following

statement:

             It is my opinion with a reasonable degree of
             medical certainty or probability that the
             incident, described by [the claimant] as
             occurring on April 13, 2000[,] and in which
             he twisted his left knee at work stepping
             down from a loading dock to the rear of a
             truck, aggravated his pre-existing arthritis
             and caused a strain of his medical [sic]
             collateral ligament.

On the questionnaire from the employer, the physician indicated

his agreement with this statement:

             [Y]ou did not believe [the claimant] was
             totally disabled but was capable of doing
             light duty work, including sedentary work,
             and that you have never told [the claimant]
             that he was totally disabled from all
             employment.

     The deputy commissioner found the claimant had suffered a

compensable injury arising out of and in the course of his

employment; that he was entitled to temporary total disability

benefits for the period September 12-26, 2000; he was not

entitled to benefits for the period September 27, 2000, through

December 13, 2000, due to his failure to market his residual


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work capacity; and that he was entitled to benefits, commencing

December 14, 2000, through January 4, 2001, for reasonably

marketing his remaining work capacity.

     Upon review, the full commission found the claimant had

proven that he suffered a compensable injury; was entitled to

temporary total disability benefits for the period September

12-26, 2000; and that the claimant failed to market his residual

work capacity commencing December 14, 2000.

     Both parties now challenge the award in different respects.

                       II.   A COMPENSABLE INJURY

     We begin our review with the employer's contention that the

commission erred in finding the claimant suffered a compensable

injury arising out of his employment.     It argues the claimant is

not entitled to benefits because he failed to meet his burden of

proving the injury he suffered was due to a risk of employment.

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

     "In order to recover on a workers' compensation claim, a

claimant must prove: (1) an injury by accident, (2) arising out

of and (3) in the course of his employment."        Kane Plumbing,

Inc. v. Small, 7 Va. App. 132, 135, 371 S.E.2d 828, 830 (1988);

see Code § 65.2-101.    "The phrase arising 'in the course of'

refers to the time, place, and circumstances under which the

accident occurred," while "arising 'out of' refers to the origin

or cause of the injury."      County of Chesterfield v. Johnson, 237

Va. 180, 183, 376 S.E.2d 73, 74 (1989).

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      "The mere happening of an accident at the workplace, not

caused by any work related risk or significant work related

exertion, is not compensable."     Plumb Rite Plumbing Serv. v.

Barbour, 8 Va. App. 482, 484, 382 S.E.2d 305, 306 (1989).      A

claimant must establish "that the conditions of the workplace or

. . . some significant work related exertion caused the injury."

Id.   Thus, "the arising out of test excludes 'an injury which

comes from a hazard to which the employee would have been

equally exposed apart from the employment.    The causative danger

must be peculiar to the work, incidental to the character of the

business, and not independent of the master-servant

relationship.'"   Johnson, 237 Va. at 183-84, 376 S.E.2d at 75

(quoting United Parcel Service v. Fetterman, 230 Va. 257,

258-59, 336 S.E.2d 892, 893 (1985)).

      "The actual determination of causation is a factual finding

that will not be disturbed on appeal," if supported by credible

evidence.   Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688,

376 S.E.2d 814, 817 (1989); see Code § 65.2-706.    However,

"[w]hether an injury arises out of and in the course of

employment is a mixed question of law and fact . . . ,

reviewable upon appeal."   Jones v. Colonial Williamsburg Found.,

8 Va. App. 432, 434, 382 S.E.2d 300, 301 (1989).

      The claimant's testimony constitutes credible evidence to

support the commission's factual findings.    The claimant stated

that when he stepped down from the loading dock, which was two

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and one-half to three feet higher than the bed of the truck,

into the bed of the truck his left knee went out from under him

and he fell backwards.   The claimant was not simply walking,

bending or turning when his knee gave way.    Rather, the

commission could reasonably infer from the evidence that

claimant's employment-related need to get into the bed of the

truck resulted in his knee injury.     "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 Sch. Bd., 7 Va. App. 398, 404,

374 S.E.2d 695, 698 (1988).   Here, the evidence supported an

inference that the conditions of employment either caused or

contributed to the claimant's injury.

     The commission's factual findings are supported by the

record and properly establish an injurious activity arising from

a work-related risk, compensable under the Act.     Compare

Southside Va. Training Center/Com. v. Ellis, 33 Va. App. 824,

829, 537 S.E.2d 35, 37 (2000) (denying compensation resulting

from "bending to pick up a tray," a movement "neither unusual,

awkward, nor something that employee was required to do on a

repetitive basis"), with Richard E. Brown, Inc. v. Caporaletti,

12 Va. App. 242, 245, 402 S.E.2d 709, 711 (1991) (finding

"cutting and fitting" motions of employee, while leaning over

during installation of a furnace, a condition of employment with

attendant risk of injury).

                               - 7 -
     Accordingly, the evidence supports the commission's

determination that the claimant's injury arose out of his

employment, and we affirm the related award.

             III.   TEMPORARY TOTAL DISABILITY BENEFITS

     The employer contends the commission erred in finding the

claimant was entitled to temporary total disability benefits for

the period September 12-26, 2000.    Finding the commission's

decision supported by the evidence, we disagree.

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

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

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

this particular contention, the claimant prevailed before the

commission, and we review the evidence in the light most

favorable to him.   Factual findings made by the commission will

be upheld on appeal if supported by credible evidence, even if

there is evidence in the record to support a contrary finding.

Russell Stover Candies v. Alexander, 30 Va. App. 812, 825, 520

S.E.2d 404, 411 (1999).   We will "not retry the facts, reweigh

the preponderance of the evidence, or make [our] 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).   Consequently, where the commission resolves a conflict

in medical evidence, on appeal the medical issue will not be

"settled by judicial fiat," and the commission's decision is

binding so long as it is supported by credible evidence.

                                 - 8 -
Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872,

874 (1992).   "This rule applies when an expert's opinion

contains internal conflict."   Greif Companies/Genesco, Inc. v.

Hensley, 22 Va. App. 546, 552, 471 S.E.2d 803, 806 (1996).

     In support of its argument that the claimant is not

entitled to temporary total disability benefits, the employer

contends the physician's agreement with its submitted partial

statement, "you have never told [the claimant] that he was

totally disabled from all employment," belies an award of

benefits for temporary total disability benefits.   We disagree.

     In awarding claimant temporary total disability benefits

for the period of September 12-26, 2000, the commission found as

follows:

           [T]he December 27, 2000, affirmation is
           contradicted by the September 12, 2000,
           disability slip that Dr. Campbell signed
           after examining the claimant that day. The
           September 12, 2000, disability slip is
           consistent with the treatment notes, which
           reflect that his condition has "become more
           symptomatic." It is also contemporaneous
           with the period in question. Therefore, we
           agree with the [deputy commissioner's]
           finding that the claimant was temporarily
           and totally disabled from September 12
           through September 26, 2000.

     The commission's factual findings are supported by credible

evidence, including the medical records, leave slip and

claimant's testimony.   Based upon that evidence, the commission

could reasonably conclude that claimant was temporarily and



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totally disabled from September 12, 2000, through September 26,

2000.

             IV.   THE FAILURE TO MARKET RESIDUAL CAPACITY

        The claimant contends the commission erred in finding that

he did not reasonably market his residual work capacity between

December 14, 2000, and January 4, 2001.     We disagree.

        A partially disabled employee is required to make

reasonable efforts to market his residual earning capacity to be

entitled to receive continued benefits.     See National Linen

Serv. v. McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989).

"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."     Id. at 270, 380 S.E.2d at 33.   "What

constitutes a reasonable marketing effort depends upon the facts

and circumstances of each case."     Greif Companies (GENESCO) v.

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

        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 [he or] she may undertake restricted work in

order for her to be obligated to make reasonable efforts to

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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.

     The claimant contacted nine potential employers between

December 14, 2000, and January 3, 2001.   The only reason the

nine were contacted was because the Virginia Employment

Commission, from which the claimant sought unemployment

benefits, required he contact at least two employers per week.

All nine were employers he knew personally, and none of these

were hiring.    The claimant did not fill out any employment

applications.    There is no evidence that he sought employment

elsewhere, that he approached potential employers with actual

job openings, or that he even looked into job listings in a

newspaper or other readily available resource.

     The commission found that the claimant's efforts were not

reasonable.    Credible evidence, i.e., the claimant's testimony

and his minimal list of contacts, supports the commission's

finding.   Therefore, the commission's decision will not be

disturbed on appeal.

                                                           Affirmed.

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