                     COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Hodges
Argued at Alexandria, Virginia


GREAT NORTHERN NEKOOSA CORPORATION AND
 EMPLOYERS INSURANCE OF WAUSAU
                                                   OPINION BY
v.   Record No. 0228-01-4                  JUDGE ROSEMARIE ANNUNZIATA
                                               OCTOBER 23, 2001
LARRY L. WOOD


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Susan A. Evans (Siciliano, Ellis, Dyer &
             Boccarosse, on brief), for appellants.

             Joseph T. Trapeni, Jr. (Trapeni, Romero &
             Morrison, P.C., on brief), for appellee.


     The appellants, Great Northern Nekoosa Corporation and

Employers Insurance of Wausau, appeal the decision of the

Workers' Compensation Commission to award benefits to Larry L.

Wood, pursuant to Code § 65.1-56(18), the statute in effect at

the time of the accident, upon finding he is permanently

unemployable in gainful employment.     For the reasons that follow,

we affirm.

                                  I.

                              BACKGROUND

     On appeal, we review the evidence, together with all

reasonable inferences that may be drawn, in the light most

favorable to Wood, the party prevailing before the commission.
Great Eastern Resort Corp. v. Gordon, 31 Va. App. 608, 610, 525

S.E.2d 55, 56 (2000).     Wood was injured on December 30, 1988,
while working as a maintenance mechanic for Great Northern

Nekoosa Corporation (employer).    He was then thirty-seven years

old.    While he assisted in changing a 3/4 inch steel crane cable,

the cable slipped and fell on Wood's face, causing him to fall

from his position on top of a truckload of logs, twelve to

fourteen feet to the concrete roadway.    He was diagnosed with a

closed brain injury, right frontal intracerebral hematoma, a

basilar skull fracture with multiple air/fluid levels, a

contusion to the right side of the face, multiple fractures to

the face and right orbit, chest and neck trauma, aspiration

pneumonities and pulmonary contusion, and pneumonia.     The claim

was accepted as compensable, resulting in a total of five hundred

weeks of compensation benefits pursuant to various awards.

Subsequently, Wood sought an award of permanent total

compensation benefits pursuant to Code § 65.1-56(18).
        After several years of medical treatment, the employer

offered Wood a part-time position as a work order processor,

which required him to process work orders using a computer

software package by entering information into the computer

database from card files.    The position had previously been

filled by college students on a part-time basis, but had been

eliminated in August 1992.    The job was revived and modified for

Wood.    The job was obtained for Wood by a vocational

rehabilitation specialist and was approved by his treating

physician and treating psychologist.     Wood performed fewer than

one-half the job tasks required of the last employee in the

position.    Wood testified that he obtained this position because

"this was the only thing they could find that I might be capable

                                 - 2 -
of doing."    He earns $8.59 per hour and certain fringe benefits,

including holiday pay, vacation pay, health insurance and a

retirement plan.    Although the job was approved for sixteen hours

per week, Wood was only scheduled to work twelve hours per week

and, in fact, worked even fewer hours than assigned because of

the fatigue and severe headaches he suffered.    Furthermore, he

often cannot perform his assigned tasks.    In his stead, his

supervisor performs those tasks when those tasks are important.

Wood performs them when he is able.
     Marsha Hoexter, an expert in vocational rehabilitation,

basing her conclusions on the medical, psychological and

rehabilitation reports, testified that "there are not any jobs

out in the competitive labor market that [Wood] would be

considered for."    She concluded that employers in the competitive

market would not be as accommodating as the employer such that

Wood could maintain a position elsewhere.    Richard J. Milan, Jr.,

Ph.D., concluded that

             the objective and psychometric evidence and
             collateral reports converge to strongly
             indicate that this gentleman is effectively
             disabled by the residual effects of his work
             related traumatic brain injury. He requires
             special accommodations to work even part-time
             and is unable to sustain anything approaching
             full-time employment in a competitive work
             environment.

     The commission concluded that Wood was not employable in

gainful employment and, thus, is totally and permanently

incapacitated.    It entered an award in his favor for $362 per

week beginning July 30, 1998.    It is from that decision that the

employer appeals.

                                  II.

                                 - 3 -
                              Analysis

     Code § 65.1-56(18) of the Workers' Compensation Act

provided, inter alia, that:

          [A]n injury to the brain which is so severe
          as to render the employee permanently
          unemployable in gainful employment, shall
          constitute total and permanent incapacity, to
          be compensated according to the provisions of
          Section 65.1-54.

The commission found that because the employer revived and

modified the position to meet Wood's needs and not out of

business necessity, his employment did not constitute "gainful

employment."   Employer contends (1) that the commission too

narrowly defined "gainful employment" and (2) that Wood's

position is beneficial to the employer.   Employer argues that

Wood does not meet this definition because he is and has been

gainfully employed since January 11, 1993.   We disagree.




                               - 4 -
           A.   The Legal Definition of "Gainful Employment"

     The phrase "unemployable in gainful employment" is not

defined in the Act.     Therefore, the commission determined that

            gainful employment is employment that is
            beneficial to both the worker performing the
            job, as well as the employer providing the
            opportunity. It is not a position that is
            specifically created for the injured
            worke[r] in the absence of a pre-existing
            need of the employer. It is not a position
            created by the employer by transferring work
            duties from other workers for no apparent
            business purpose, where the end result is
            that the same work is performed and there is
            an increase in labor cost without a
            concomitant business benefit for the
            employer. Gainful employment results in
            profits and benefits both for the worker and
            the employer.

     The issue of whether the commission erred in finding that

Wood was "unemployable in gainful employment," implicates a core

question of first impression in Virginia.     The commission's

description of "gainful employment" is a conclusion of law that

is not binding on this Court.     Thomas Refuse Service v. Flood, 30

Va. App. 17, 20, 515 S.E.2d 315, 317 (1999).     "However, the

commission's construction of the Workers' Compensation Act is

entitled to great weight on appeal."     Id. (citing Wiggins v.

Fairfax Park Ltd., 22 Va. App. 432, 441, 470 S.E.2d 591, 596

(1996)).    We now adopt the commission's description of "gainful

employment."

     "It is a well established rule of construction that a

statute ought to be interpreted in such a manner that it may have

effect, and not found to be vain and elusive.     Every

interpretation that leads to an absurdity ought to be rejected.


                                 - 5 -
It is our duty to give effect to the wording of the statute, and

allow the legislative intention to be followed."    Barnett v. D.L.

Bromwell, 6 Va. App. 30, 34, 366 S.E.2d 271, 273 (1988) (quoting

McFadden v. McNorton, 193 Va. 455, 461, 69 S.E.2d 445, 449

(1952)).

     To constitute total incapacity, a brain injury must render

an individual "unemployable in gainful employment."   The phrase

"gainful employment" must, therefore, have some meaning beyond

"any" employment.
     We hold that the commission's interpretation of the phrase,

"unemployable in gainful employment," is consistent with the

statutory purpose and that it properly determined that Wood was

totally and permanently incapacitated, in accordance with that

interpretation.   A definition of "gainful employment" in this

context that does not consider the labor market and the

motivations of a potential employer would swallow the rule such

that any brain injury no matter how severe would be

noncompensable if one employer were willing to hire an individual

for non-business reasons, such as compassion.   Under such a

definition, that person would be "employable in gainful

employment" and ineligible for total disability benefits.    The

limitation to "gainful" employment would be rendered meaningless.

     While the Virginia appellate courts have not addressed the

issue previously, we find that the definition adopted by the

commission is supported by the decision of the Virginia Supreme

Court in Atlantic Life Insurance Co. v. Worley, 161 Va. 951, 959,
172 S.E. 168, 171 (1934), in which the court addressed analogous

issues.    In its consideration of the phrase "total and permanent


                                - 6 -
disability" in the context of insurance policy coverage, the

Virginia Supreme Court rejected an interpretation of the phrase

that disallowed benefits if the individual could engage in "any

occupation whatsoever."   Id.     The Supreme Court defined "total

and permanent disability" as the inability to perform work for

profit "in substantially the customary and usual manner in which

such occupation is prosecuted."      Id. at 960, 172 S.E. at 172. 1

The Supreme Court's definition, like the commission's definition,

implies that the employer needs the employee as it would need any

other employee to perform the tasks of the occupation.        In short,

the employment of a claimant has a business purpose.
     In adopting the commission's definition of "gainful

employment," we are also persuaded by Professor Larson's

so-called "odd-lot" doctrine. 2    Professor Larson defines

"odd-lot" workers as within the category of the totally disabled:

          [T]otal disability may be found in the case
          of workers who, while not altogether
          incapacitated for work, are so handicapped
          that they will not be employed regularly in
          any well-known branch of the labor market.
          The essence of the test is the probable
          dependability with which claimant can sell
     1
       The Supreme Court subsequently relied on its definition in
Worley in two worker's compensation cases concerning the loss of
use of two members. See Borden, Inc. v. Norman, 218 Va. 581,
586, 239 S.E.2d 89, 92 (1977) (adopting the Worley definition of
total and permanent incapacity to determine the propriety of an
award under former Code § 65.1-56(18) of the Workers'
Compensation Act); Virginia Oak Flooring Co. v. Chrisley, 195 Va.
850, 80 S.E.2d 537 (1954) (adopting the same definition of "total
and permanent loss" in the context of former Code § 65-53(18) of
the Virginia Workers' Compensation Act).
     2
       The term "odd-lot" refers to a worker who is "so
substantially disabled as to be unable to find stable
employment, and thus is considered totally disabled and entitled
to worker's compensation benefits under the odd-lot doctrine."
Black's Law Dictionary 1107 (7th ed. 1999).


                                  - 7 -
          his or her services in a competitive labor
          market, undistorted by such factors as
          business booms, sympathy of a particular
          employer or friends, temporary good luck, or
          the superhuman efforts of the claimant to
          rise above crippling handicaps.

Arthur Larson & Lex K. Larson, 4 Larson's Workers' Compensation

Law § 83.01 (2001) (emphasis added).   Most states considering the

issue have incorporated Professor Larson's concept.   See, e.g.,

Ellenburg v. Jim Walter Resources, 680 So.2d 282, 285 (Ala. Civ.

App. 1996) (defining a totally disabled employee as one "who is

so injured that he can perform no services other than those

which are so limited in quality, dependability, or quantity that

a reasonably stable market for them does not exist"); Port

Everglades Terminal Co. v. Canty, 120 So.2d 596, 600 (Fl. 1960)

(same); Gunderson v. City of Ashland, 701 S.W.2d 135, 136 (Ky.

1985) (adopting Larson's definition); Johnson v. Fidelity &

Casualty Ins. Co. of New York, 618 So.2d 651, 654 (La. Ct. App.

1993) (an employee is totally disabled when his "services are so

limited in quality, dependability or quantity that a reasonably

stable market for his services does not exist"); Bullis School

v. Justus, 377 A.2d 876, 880 (Md. Ct. Spec. App. 1977) (same);

Mastellar v. Nelson Co-op Creamery, 216 N.W.2d 836, 837 (Minn.

1974) (same); Tee v. Albertsons, Inc., 842 P.2d 374, 378 (Or.

1992) (finding that permanent and total disability status

depends on one's ability to "sell his services on a regular

basis in a hypothetically normal labor market") (subsequently

modified by statute).

                              - 8 -
                    B.   Sufficiency of the Evidence

     We further find no merit in the employer's contention that

the evidence fails to support the commission's finding that

Wood's employer did not have a business purpose for creating his

position and that he was not employable in a competitive labor

market.   The employer contends on appeal that Wood did not prove

that the work order processor position was created without a

business purpose.    It further argues the commission relied upon

speculative evidence presented by Marsha Hoexter, a vocational

rehabilitation counselor.     We disagree.

           We do not retry the facts before the
           Commission nor do we review the weight,
           preponderance of the evidence, or the
           credibility of witnesses. If there is
           evidence or reasonable inference that can be
           drawn from the evidence to support the
           Commission's findings, they will not be
           disturbed by this Court on appeal . . . .

Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d

507, 510 (1983).

     In the instant case, Wood presented ample evidence from
which the commission could reasonably conclude that the employer

did not revive and modify the work order processor position for a

business purpose.    Wood performed fewer than one-half the job

tasks required of the last employee in the position.   He

testified that he obtained this position because "this was the

only thing they could find that I might be capable of doing."

Moreover, although the job was approved for sixteen hours per

week, Wood was only scheduled to work twelve hours per week, and,

in fact, worked even fewer hours than assigned due to fatigue and

severe headaches.    Finally, the evidence shows that Wood is often

                                  - 9 -
unable to perform his assigned tasks and that, when those tasks

are important, either his supervisor performs them or Wood

performs them at a time when he is able.

     The commission also considered the testimony of Hoexter who,

in part, testified that "there are not any jobs out in the

competitive labor market that [Wood] would be considered for" and

that employers in the competitive market would not be as

accommodating as the employer such that Wood could maintain a

position elsewhere.   We disagree with the employer's claim that

the commission improperly relied on Hoexter's expert testimony.
     The credibility of an expert witness and the weight to be

accorded the evidence are matters within the province of the

commission, the fact finder in the instant case.   Georgia-Pacific

Corp. v. Dancy, 24 Va. App. 430, 439, 482 S.E.2d 867, 871 (1997)

(citing Horsley v. Commonwealth, 2 Va. App. 335, 339, 343 S.E.2d

389, 391 (1986)).   However, an expert's opinion must be supported

by facts within his or her knowledge or established by other

evidence.   Waynesboro Police v. Coffey, 35 Va. App. 264, 271, 544

S.E.2d 860, 863 (2001) (citing Gilbert v. Summers, 240 Va. 155,
160, 393 S.E.2d 213, 215 (1990)).   In the instant case, the

expert relied on facts in evidence and facts gathered by her own

investigation to reach her conclusion.   Hoexter indicated that

she met with Wood and his wife, reviewed his medical records

including a neuropsychological evaluation, and a report by

Rehabilitative Services and Vocational Placement, Inc.   The

commission, therefore, was entitled to consider and give due

weight to Hoexter's testimony.




                              - 10 -
     Because we find the evidence sufficient to support the

commission's finding that Wood was "unemployable in gainful

employment," defined as requiring a business purpose, we affirm.

                                             Affirmed.




                             - 11 -
