                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Elder, Bumgardner and Lemons


FARAWAY FARMS, INC. AND
 ERIE INSURANCE EXCHANGE
                                             MEMORANDUM OPINION*
v.   Record No. 2163-99-3                         PER CURIAM
                                               FEBRUARY 8, 2000
BRUCE DINGES


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (John C. Johnson; Tracy M. Benner; Frith,
             Anderson & Peake, P.C., on brief), for
             appellants.

             (A. Thomas Lane, Jr., on brief), for
             appellee.


     Faraway Farms, Inc. and its insurer (hereinafter referred

to as "employer") contend that the Workers’ Compensation

Commission (commission) erred in finding that (1) Bruce Dinges

(claimant) proved he was totally disabled beginning August 13,

1998; and (2) its holding on the disability issue obviated the

need to address employer's argument that claimant failed 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.     See Rule 5A:27.



     * Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
     On appeal, we view 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 holding that claimant sustained his burden of proving

total disability for the relevant time period, the commission

found as follows:

               In his response to the questions posed
          to him by claimant's counsel in his letter
          dated August 18, 1998, Dr. Spicuzza stated
          his opinion that the claimant was totally
          disabled from the time of his accident.
          This opinion is substantiated by his note
          dated August 13, 1998, stating that the
          claimant was to be out of work for the
          "indefinite future."

               The employer relies heavily upon the
          deposition testimony of Dr. Spicuzza in
          arguing that claimant was not totally
          disabled. Unquestionably, that testimony on
          its face creates some equivocation on the
          issue. However, when we review the entire
          deposition transcript, we believe that the
          statements made by Dr. Spicuzza are more in
          the nature of hypothesizing rather than
          definitive statements as to functional
          ability. It would also appear from the
          context of those statements that Dr.
          Spicuzza was premising his hypothesis on the
          assumption that the claimant would undergo
          the surgery that was being considered.

     Dr. Spicuzza's August 13, 1998 notes and his response to

claimant's counsel's questions contained in the August 18, 1998

letter constitute credible evidence to support the commission's

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finding that claimant carried his burden of proving total

disability beginning August 13, 1998.   Moreover, as fact finder,

the commission was entitled to weigh any inconsistencies between

that evidence and Dr. Spicuzza's deposition testimony.     The

commission did so and articulated legitimate reasons for

concluding that Dr. Spicuzza's deposition "statements [did not]

sufficiently outweigh the other evidence . . . to require a

finding that the claimant failed to carry his burden." 1

     For the reasons stated, we affirm the commission's

decision.

                                                           Affirmed.




     1
       Our affirmance of the commission's holding on the
disability issue renders it unnecessary for us to address the
marketing issue.

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