                      COURT OF APPEALS OF VIRGINIA


Present:    Judges Annunziata, Agee and Senior Judge Coleman


ACE CARPENTRY, INC. AND
 PENNSYLVANIA MANUFACTURERS
 ASSOCIATION INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 1169-02-2                         PER CURIAM
                                               OCTOBER 1, 2002
BENJAMIN M. MULLINS


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Arthur T. Aylward; Thomas C. Bunting;
             Midkiff, Muncie & Ross, P.C., on briefs), for
             appellants.

             (Wesley G. Marshall, on brief), for appellee.


     Ace Carpentry, Inc. and its insurer (hereinafter referred

to as "employer") contend the Workers' Compensation Commission

erred in finding that (1) Benjamin M. Mullins (claimant) proved

he was entitled to a de facto award; (2) employer failed to

prove it made a bona fide offer of selective employment to

claimant; (3) claimant did not unjustifiably refuse selective

employment; and (4) claimant had no duty to market his residual

work capacity because he was under a de facto award.     Upon

reviewing the record and the parties' briefs, we conclude that

this appeal is without merit.     Accordingly, we summarily affirm

the commission's decision.     Rule 5A:27.


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                I.    Existence of a De Facto Award

     In Ryan's Family Steak Houses, Inc. v. Gowan, 32 Va. App.

459, 528 S.E.2d 720 (2000), we reiterated our holding in

National Linen Serv. v. McGuinn, 5 Va. App. 265, 269-70, 362

S.E.2d 187, 189 (1987) (en banc) as follows:

          [W]here the employer has stipulated to the
          compensability of the claim, has made
          payments to the employee for some
          significant period of time without filing a
          memorandum of agreement, and fails to
          contest the compensability of the injury, it
          is "reasonable to infer that the parties
          ha[ve] reached an agreement as to the
          payment of compensation," and a de facto
          award will be recognized.

Gowan, 32 Va. App. at 463, 528 S.E.2d at 722.

     In ruling that claimant proved the existence of a de facto

award, the commission found as follows:

          The employer voluntarily paid benefits from
          November 4, 1999 to November 7, 2000, a
          period of over one year. Moreover, the
          employer did not contest the initial
          compensability of the accident. . . .

           *      *       *      *        *     *     *

               The Commission has found a de facto
          award where the employer paid benefits for
          an extended period of time and did not
          contest the compensability of the claim.
          The employer's argument that disability was
          unrelated to the accident, does not
          challenge the compensability of the initial
          accident but is an affirmative defense to
          limit benefits awarded. Thus, the claimant
          was entitled to a de facto award and the
          employer had the burden to prove disability
          was not related to the accident for which
          the de facto award was entered.

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        The commission's findings, which are amply supported by

credible evidence in the record, support its conclusion that

claimant was entitled to a de facto award.     It was undisputed

that employer voluntarily paid benefits to claimant for over a

year.    At the hearing, employer stipulated to the compensability

of claimant's accident, and only disputed the causal

relationship of claimant's disability on the ground that he

failed to disclose a previous back injury.     Employer's

affirmative defense to claimant's disability did not negate

claimant's de facto award under the circumstances of this case.

Accordingly, the commission did not err in finding that claimant

was entitled to a de facto award.

             II.   Bona Fide Offer of Selective Employment

        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).

        Employer argues that it proved it made a bona fide offer of

selective employment within claimant's restrictions to claimant

because he performed that light-duty job for a period of five

weeks.    Unless we can say as a matter of law that employer's

evidence sustained its burden of proof, the commission's

findings are binding and conclusive upon us.     See Tomko v.

Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835

(1970).


                                 - 3 -
               An employer seeking to terminate
          compensation benefits pursuant to [Code
          § 65.2-510] must establish "(1) a bona fide
          job offer suitable to the employee's
          capacity; (2) procured for the employee by
          the employer; and (3) an unjustified refusal
          by the employee to accept the job." To
          constitute a bona fide offer, the selective
          employment contemplated by Code § 65.2-510
          must be upon terms and conditions
          sufficiently specific to permit informed
          consideration by an employee, and comprised
          of duties consistent with employee's
          remaining work capacity.

Hillcrest Manor Nursing Home v. Underwood, 35 Va. App. 31, 37,

542 S.E.2d 785, 788 (2001).

     In ruling that employer failed to prove that it made a bona

fide offer of selective employment within claimant's

restrictions, the commission found as follows:

               The claimant testified that he was
          consistently required to perform work that
          violated his 20-pound lifting restriction.
          His supervisors testified the light duty
          work met the restrictions. The Deputy
          Commissioner accepted the claimant's
          testimony over the testimony of the
          claimant's supervisors. We see no reason to
          disregard that credibility determination.
          Moreover, Dr. [Joseph] Stratkus noted in his
          records that the claimant reported that his
          work violated his 20-pound lifting
          restriction. Dr. Stratkus also opined that
          he would consider the claimant totally
          disabled and only released him to light duty
          based on financial considerations and with
          high doses of pain medication. Thus, we
          agree with the Deputy Commissioner that the
          employer did not show a bona fide offer of
          employment within the claimant's
          restrictions.



                              - 4 -
     As fact finder, the commission was entitled to accept

claimant's testimony and to reject the contrary testimony of his

supervisors regarding whether the light-duty job offered by

employer exceeded his restrictions.      It is well settled that

credibility determinations are within the fact finder's

exclusive purview.    Goodyear Tire & Rubber Co. v. Pierce, 5

Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).     In light of

claimant's testimony, coupled with Dr. Stratkus' medical records

and opinions, we cannot find as a matter of law that employer's

evidence sustained its burden of proving it made a bona fide

offer of selective employment to claimant.

               III.   Refusal of Selective Employment

     Because we affirm the commission's ruling that employer

failed to prove it made a bona fide offer of selective

employment to claimant, we need not address employer's Question

Presented III as to whether claimant unjustifiably refused

selective employment.

                           IV.   Marketing

     Because we affirm the commission's ruling that claimant was

entitled to a de facto award, we also affirm the commission's

ruling that claimant had no duty to market his residual work

capacity.   See McGuinn, 5 Va. App. at 271, 362 S.E.2d at 190.

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

                                                            Affirmed.


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