                    COURT OF APPEALS OF VIRGINIA


Present:   Judges Benton, Coleman and Willis


BOBBY HAY, T/A UP FRONT PAINTING
                                               MEMORANDUM OPINION *
v.   Record No. 1196-97-3                          PER CURIAM
                                               SEPTEMBER 30, 1997
DANNY EUGENE POWELL


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           (Robert M. McAdam; David W. Hearn; Wooten &
           Hart, on brief), for appellant.
           (Thomas N. Key; Neil E. McNally; Key & Tatel,
           on brief), for appellee.



     Bobby Hay, t/a Up Front Painting (employer), contends that

the Workers' Compensation Commission erred in finding that (1)

Danny Eugene Powell proved he sustained an injury by accident

arising out of and in the course of his employment on November 6,

1995; (2) employer regularly employed three or more painters,

rendering it subject to the jurisdiction of the Workers'

Compensation Act ("the Act"); and (3) Powell remained totally

disabled since the November 6, 1995 accident, and, therefore, had

no duty 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.




     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
                                I.

     Powell testified that while working for employer he lost his

balance on the edge of a roof and fell approximately twelve feet

to the ground below.   As a result, Powell injured his right foot.

Dr. Richard Whitehill diagnosed Powell as suffering from a

dislocated ankle and a fractured heel.   Dr. Whitehill performed

surgery to correct these conditions.

     In rendering its decision, the commission adopted and

affirmed the deputy commissioner's findings.   The deputy

commissioner found as follows:
          No testimony was presented which would
          meaningfully contradict [Powell's] account of
          his accident, which we hereby adopt as our
          own. Although counsel for Bobby Hay inferred
          that [Powell] fell because he was under the
          influence of Valium, that inference was
          advanced in an evidentiary vacuum, and is
          unpersuasive. [Powell] said that he last
          took Valium the day before he was hurt, no
          medical evidence has been filed that he was
          impaired, and the fact that he was able to
          work nearly the entire shift until the mishap
          occurred convinces us that his injury was
          accidental, rather than self-imposed.


     "In order to carry [the] burden of proving an 'injury by

accident,' a claimant must prove that the cause of [the] injury

was an identifiable incident or sudden precipitating event and

that it resulted in an obvious sudden mechanical or structural

change in the body."   Morris v. Morris, 238 Va. 578, 589, 385

S.E.2d 858, 865 (1989).   Powell's testimony and the medical

records provide credible evidence to support the commission's

finding that Powell proved an identifiable incident resulting in



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a sudden mechanical change in his body.    Thus, that finding is

conclusive on this appeal.    See James v. Capitol Steel Constr.

Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

     In rendering its decision, the commission considered and

rejected employer's speculative contention that Powell fell due

to ingesting valium.   No evidence supported this contention.

Moreover, "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).

                                 II.

     Code § 65.2-101(2)(h) provides that an employer who has

three or more employees "regularly in service" is subject to

jurisdiction under the Act.

     Powell testified that employer employed three or more

painters over an extended period of time before Powell's

accident.    The commission found Powell to be credible.

Furthermore, employer offered no evidence to contradict Powell's

testimony.   Based upon Powell's unrebutted testimony, we cannot

say as a matter of law that employer's evidence proved it was not

subject to the commission's jurisdiction under the Act.

                                III.

     Based on the evidence regarding Powell's disability, the

deputy commissioner found as follows:
          [Powell] was repetitively assessed by Dr.


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          Whitehill as being "unable to work" during
          their association. Once that association
          ended, [Powell] was followed locally by a
          succession of orthopedists. There is no
          indication from their office notes that they
          at any point gave [Powell] even a partial
          work release, and Dr. [Olumide A.] Danisa
          specifically indicated on April 24, 1996 that
          he expected his patient to be "off work for
          6-12 months." It is by no means
          determinative that Dr. [Dallas P.]
          Crickenberger did not similarly assess
          [Powell] in his recently filed narrative
          report since, as the orthopedist candidly
          acknowledged, "there was no discussion
          regarding" his patient's "work status" upon
          the one occasion he examined him on July 31,
          1996.

     The commission affirmed and adopted the deputy

commissioner's finding that Powell remained totally disabled

since the November 6, 1995 accident.   The medical records of Drs.

Whitehill and Danisa, along with Powell's testimony, provide

credible evidence to support the commission's findings, which we

will not disturb on appeal.   Because the evidence supports the

commission's decision, Powell had no residual work capacity to

market.

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

                                                          Affirmed.




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