                     COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Agee
Argued at Salem, Virginia


POWELL MOUNTAIN COAL COMPANY AND
 RELIANCE INSURANCE COMPANY
                                           MEMORANDUM OPINION * BY
v.   Record No. 1936-00-3                   JUDGE G. STEVEN AGEE
                                                MARCH 27, 2001
GEORGE JEFFREY MOSKO


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Lisa Frisnia Clement (Michael F. Blair; J.
          Jasen Eige; Penn, Stuart & Eskridge, on
          brief), for appellants.

          Susan D. Oglebay for appellee.


     Powell Mountain Coal Company and its insurer, Reliance

Insurance Company (collectively "the employer"), appeal an order

of the Workers' Compensation Commission ("the commission")

awarding George Mosko ("the claimant") disability benefits.     The

employer asserts that the commission erred by (1) finding it had

jurisdiction to consider a claim arising in the Commonwealth of

Kentucky; and (2) holding that the claimant had not been

released to light duty work and thus had no duty to market his

residual capacity.     For the reasons set forth below, we affirm

the commission's decision.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                                 I.

                             BACKGROUND

     The employer hired the claimant in Lee County, Virginia in

October 1995.   No written contract of employment has ever

existed between employer and claimant.    Between October 1995 and

October 1998, the employer transferred the claimant back and

forth between various mines in Virginia.   In the fall of 1998,

the employer posted a job description announcing the hiring of

new employees and the transferring of current employees to

another mine.   All applications for the positions were received

in Virginia where all the employment decisions associated with

the positions were made.    The claimant requested consideration

for a position and was subsequently transferred to the

employer's Kentucky mine.

     In the application process, the claimant, as a current

employee, was not required to fill out a job application or sign

an employment contract.    The claimant was required, however, to

complete a mandatory training program at the Kentucky mine and

sign a "certificate of training" form provided by the U.S.

Department of Labor.   The form signed by the claimant was

denominated "newly employed experienced miner."   The employer

testified that this form is required by the federal government

any time an individual begins working in a particular mine, and

it would have been required even if the claimant was transferred

to a mine in Virginia.

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     The new work location in Kentucky was about 17 miles from

the claimant's Virginia home.    The new position, described as a

transfer, resulted in no change in pay or duties, just a change

in location and the assigned shift.      The transfer was not

intended to be permanent, and the claimant could have been

transferred to another mine or shift at any time.     The

employer's general superintendent described the claimant's

employment status as "a Powell Mountain Coal Company employee"

and "not exclusively employed in Kentucky."

     After his training, the claimant began working at the

Kentucky mine and suffered an injury on October 12, 1998, less

than a week after he began at the new site.     The claimant did

not immediately file a Kentucky or Virginia workers'

compensation claim, yet shortly after the accident he began

receiving compensation checks.    (The claimant, did, however,

file a February 1999 claim in Virginia.)     The claimant testified

that he was not aware the checks he received were issued under

Kentucky law until he received notice in the summer of 1999 that

the benefits would be terminated.

     After the accident on October 12, 1998, the claimant

complained of pain in his back and right leg.     He was examined

for a low back strain at Lee County Community Hospital.     On

October 23, 1998, Dr. Paul C. Peterson began caring for the

claimant resulting in a determination that surgery was required.

After a December 14, 1998 surgery the claimant reported

                                 - 3 -
improvement in his right leg pain, yet he continued to suffer

back pain.

        In the spring of 1999, the claimant was referred to

additional physicians and healthcare providers who diagnosed and

treated his back pain.    In June 1999, the claimant underwent a

Functional Capacities Evaluation.    The report generated from the

evaluation placed restrictions on sitting and standing, and

limitations on repetitive bending, kneeling, squatting, standing

and stair climbing.    The evaluation further noted that the

claimant was able to infrequently lift 20 pounds from floor to

waist and 15 pounds frequently.    The evaluation restricted the

claimant to light sedentary employment.

        In a report generated on June 30, 1999, Dr. Peterson

concurred with the evaluations findings, and recommended the

claimant continue with pain management.     It was further

recommended that the claimant undergo vocational rehabilitation.

The doctor stated, "We will be happy to review any job

description prior to releasing the patient to employment."     As

to work status, the doctor stated, "[a]s noted above, he is

unable to return to the heavy demand of his previous employment.

He is restricted to light sedentary employment, as outlined in

the functional capacity evaluation.      We will consider him to be

MMI."

        In August 1999, Dr. Robert P. Goodman examined the claimant

at the employer's request.    In his report, Dr. Goodman noted

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similar lifting limitations and wrote "I think he is MMI."

(Emphasis added).

                                 II.

                            JURISDICTION

     Code § 65.2-508 provides that where an employee is injured

while he is employed outside the Commonwealth, and such injury

would entitle the employee to compensation had it occurred

within the Commonwealth, the claimant shall be entitled to

compensation if:    (1) the contract of employment was made within

the Commonwealth, and (2) the employer's place of business is in

the Commonwealth, provided the contract of employment was not

expressly for services exclusively outside the Commonwealth.

     The evidence conclusively established that the contract for

employment was made in the Commonwealth with an employer doing

business here.   The claimant testified he initially applied for

and was interviewed for the transfer at his employer's place of

business in Virginia.   The employer testified that the claimant

was hired in Virginia through its Virginia office, its place of

business.    The claimant is, therefore, entitled to benefits

unless the contract was expressly for services outside of the

Commonwealth.

     We hold that the commission's finding that the employment

contract was not expressly for services outside of Virginia is

supported.   The employer hired the claimant in Virginia

approximately three years prior to his accident, and the

                                - 5 -
claimant worked in Virginia during that time for all but the

week of his accident.    The claimant testified that he was

initially unaware that the position he was interested in was in

Kentucky.    The employer testified that the employee was not

exclusively a Kentucky employee, and could be transferred

between mines and shifts at any time, as had occurred in the

past.    In considering these facts, the commission could find the

transfer to Kentucky did not constitute a new contract of

employment and did not constitute an agreement by which the

claimant would work exclusively in Kentucky.

        As all three prongs of the test for jurisdiction are met,

the commission did not err in finding it had jurisdiction to

consider the claimant's claim for benefits.

                                 III.

                        MEDICAL RELEASE TO WORK

        On appeal, we review 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).    Factual findings made by the commission will be upheld

on appeal if supported by credible evidence.      See James v.

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

488 (1989).

        In this matter, the commission found that the claimant was

not released to light duty work.    The employer, however, argues

the commission erred by not recognizing the claimant's release

                                 - 6 -
as stated in a June 30, 1999 physician's report issued by the

claimant's primary physician.   In its argument, the employer

points to the physician's comments in the report providing "he

is restricted to light sedentary employment as outlined in the

functional capacity evaluation.   We will consider him to be at

MMI [maximum medical improvement]."     It argues that the

physician would not have provided restrictions for the claimant

if he had not concluded the claimant was capable of returning to

some form of work at that time.

     Yet, in its argument, the employer fails to recognize that

the doctor's report also requests the claimant be provided

vocational rehabilitation.   The doctor further states, "We will

be happy to review any job descriptions prior to releasing the

claimant to employment."   (Emphasis added).   In view of these

additional comments by the primary physician, we cannot find

that the commission erred in finding that the claimant was not

released to light duty work on June 30, 1999 and, therefore, had

no obligation to market his residual capacity.

     As we find no error by the commission, its decision

awarding the claimant benefits is affirmed.

                                                     Affirmed.




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