                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Bray, Fitzpatrick and Overton


OGDEN MARTIN SYSTEMS OF ALEXANDRIA and
 INSURANCE COMPANY OF THE STATE OF
 PENNSYLVANIA
                                              MEMORANDUM OPINION *
v.   Record No. 1152-97-4                         PER CURIAM
                                              SEPTEMBER 23, 1997
OLLIE LLOYD, JR.


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           (Lisa C. Healey; Siciliano, Ellis, Dyer &
           Boccarosse, on brief), for appellants.

           (Marc H. Botzin; Delaney, McCarthy, Colton &
           Botzin, on brief), for appellee.


     Ogden Martin Systems of Alexandria and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission (commission) erred in

finding that (1) Ollie Lloyd, Jr. (claimant) did not

unjustifiably refuse selective employment; and (2) claimant made

a good faith effort to market his residual work capacity.     Upon

reviewing the record and the briefs of the parties, we conclude

that this appeal is without merit.   Accordingly, we summarily

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

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

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

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

support a finding of refusal of selective employment 'the record

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
must disclose (1) a bona fide job offer suitable to the

employee's capacity; (2) [a job offer that was] procured for the

employee by the employer; and (3) an unjustified refusal by the

employee to accept the job.'"   James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 489 (1989) (quoting

Ellerson v. W.O. Grubb Steel Erection Co., 1 Va. App. 97, 98, 335

S.E.2d 379, 380 (1985)).

     In ruling that claimant did not refuse the light-duty job

offered by employer, the commission found as follows:
          In this case, the claimant did not refuse the
          light duty job. He performed it until he was
          laid off. At that time the employer stated
          that it had been hoped that he would be back
          to his pre-injury condition by that point,
          and that the job required the services of a
          full-time laborer. The employer stated it
          would bring the claimant back to work as soon
          as he had a full release with no
          restrictions. As soon as he was laid off,
          the claimant registered with the VEC, and he
          applied for 39 jobs prior to the April 3,
          1996, hearing. Although the Deputy
          Commissioner found that the claimant did not
          make a bona fide effort to perform the job,
          we disagree with this finding. The decision
          below states that there is no evidence that
          the claimant's physician approved his use of
          a cane; however, Dr. Verdin's office notes of
          June 21, 1995, and August 7, 1995, note that
          the claimant is using a cane. The claimant
          was told he could take as many breaks as he
          needed, and he was not aware that his job was
          in jeopardy for taking too many breaks.


     Claimant's testimony and the correspondence and testimony of

employer's representatives, Glen Madelmeyer and James Mattingly,

provide credible evidence to support the commission's findings.

Therefore, those findings are binding on appeal.   See James, 8



                                2
Va. App. at 515, 382 S.E.2d at 488.   Based upon this credible

evidence, the commission could reasonably conclude that claimant

did not unjustifiably refuse selective employment, and that he

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

"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).
     Accordingly, we affirm the commission's decision.

                                                   Affirmed.




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