                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Willis, Lemons ∗ and Frank


NEWPORT NEWS SHIPBUILDING AND
 DRY DOCK COMPANY
                                                  OPINION BY
v.   Record No. 1302-99-1                JUDGE JERE M. H. WILLIS, JR.
                                                MARCH 28, 2000
MICHELLE BARNES


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Jonathan H. Walker; Mason, Cowardin & Mason,
             on brief), for appellant. Appellant
             submitting on brief.

             (Robert E. Walsh; Rutter, Walsh, Mills &
             Rutter, L.L.P., on brief), for appellee.
             Appellee submitting on brief.


     On appeal from a decision of the Workers' Compensation

Commission awarding Michelle Barnes benefits for a knee injury,

Newport News Shipbuilding and Dry Dock Company ("Newport News")

contends (1) that the evidence was insufficient to support a

finding that the injury was compensable, (2) that the commission

erred in finding that Barnes gave her supervisor notice of the

injury, and (3) that the commission erred in holding that Code

§ 65.2-510(C) did not operate to deny Barnes benefits.       For the




     ∗
       Justice Lemons participated in the decision of this case
prior to his investiture as a Justice of the Supreme Court of
Virginia.
reasons set forth herein, we reverse the judgment of the

commission and remand the case to it.

                   I.   Sufficiency of the Evidence

     Newport News contends that the evidence was insufficient to

support the finding that Barnes sustained a compensable injury.

Arguing that at most she suffered cumulative trauma, Newport

News asserts that the evidence that Barnes was involved in any

type of accident on November 13, 1989 is incredible as a matter

of law.

     "On appellate review, [the court will] construe the

evidence in the light most favorable to the party prevailing

below."    States Roofing Corp. v. Bush Constr. Corp., 15 Va. App.

613, 616, 426 S.E.2d 124, 126 (1993).    "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).

     While the record contains discrepancies as to the nature of

the injury, sufficient evidence supports the finding that Barnes

suffered the injury when she slipped and landed hard on both

knees.    "[I]t is fundamental that a finding of fact made by the

[c]ommission is conclusive and binding upon this court on

review.   A question raised by conflicting medical opinion is a


                                 - 2 -
question of fact."     Commonwealth v. Powell, 2 Va. App. 712, 714,

347 S.E.2d 532, 533 (1986).

     Both Barnes and Cleo Hayes described Barnes' fall and

injury.   The commission heard evidence that Hayes was a

disgruntled former employee and that Barnes' supervisor had no

recollection of the accident.     It was the commission's duty and

function to weigh the evidence and to determine the credibility

of the witnesses.     It chose to believe Barnes and the witnesses

supporting her account of the injury.     Because credible evidence

supports the commission's finding, we will not overturn that

finding on appeal.

              II.   Notice Requirement of Code § 65.2-600

     Newport News next contends that the commission erred in

finding that Barnes gave the required notice of her injury.

Code § 65.2-600 provides that:

                Every injured employee or his
           representative shall immediately on the
           occurrence of an accident or as soon
           thereafter as practicable, give or cause to
           be given to the employer a written notice of
           the accident.

Code § 65.2-600(A).

     Lack of written notice, however, does not bar recovery if

the employer has actual notice of the injury and is not

prejudiced.    See Code § 65.2-600(E).   "'[W]here there was no

written notice but . . . where a foreman or superior officer had

actual knowledge of the . . . accident or death within a

                                 - 3 -
reasonable time after the accident or death occurred and no

prejudice to the employer's rights was shown, this was

sufficient notice under this provision of the statute.'"     Kane

Plumbing v. Small, 7 Va. App. 132, 138, 371 S.E.2d 828, 832

(1988) (citation omitted) (decided under former Code § 65.1-85).

     The commission found that Barnes' supervisor, Leon Callis,

had actual knowledge of the accident and the ensuing injury.

Callis testified that he did not recall any accident report by

Barnes.   However, Barnes testified that she told him about the

injury.   "The fact that there is contrary evidence in the record

is of no consequence if there is credible evidence to support

the commission's finding."     Wagner, 12 Va. App. at 894, 407

S.E.2d at 35.   Furthermore, the record discloses no prejudice to

Newport News resulting from Barnes' failure to give written

notice of the accident and injury.

                III.   Refusal of Selective Employment

     Newport News asserts that Barnes unjustifiably refused

employment and did not cure that refusal within six months.      It

contends that Code § 65.2-510(C) bars her entitlement to

benefits.

     Barnes could not return to work after her various knee

surgeries.   Her treating physician did not clear her even for

light work associated with her cleaning job at Newport News.

Roena Hamilton, a vocational rehabilitation counselor, helped


                                 - 4 -
Barnes prepare a resume and obtained for her an interview on

July 28, 1995 for a secretarial position.   Barnes, however,

missed the interview, explaining that she had attended a family

funeral.   Barnes finally accepted a new job in January, 1997.

     Newport News argues that Barnes' failure to attend the July

28, 1995 job interview was an unjustified refusal of selective

employment which she failed to cure within six months, and that

Code § 65.2-510(C) bars her entitlement to benefits.   Citing

Selman v. McGuire Group Services, Inc., V.W.C. File No.

156-44-63 (January 16, 1998), the commission held "that Section

65.2-510(C) has no application here, where the employer merely

alleges that the claimant failed to cooperate with the

vocational rehabilitation efforts of the employer.   There is no

evidence that the employer ever procured a job suitable to the

claimant's residual capacity or that Barnes ever refused such a

job offer."   The commission erred.

     In Johnson v. City of Clifton Forge, 7 Va. App. 538, 375

S.E.2d 540 (1989), we considered whether negative conduct by a

claimant at a new job interview, such that it prevented the

offer of a new job, could constitute an unjustified refusal of

selective employment, invoking former Code § 65.1-63 (denying

compensation to an injured employee who unjustifiably refuses

employment procured for him suitable to his capacity).    We held:

           Code § 65.1-63 would be rendered meaningless
           if an employee could defeat its provisions

                               - 5 -
          by purposefully conducting himself in an
          interview so as to insure that an employer
          would not make an offer of employment. In
          addition, where an employee had undergone
          vocational rehabilitation training pursuant
          to Code § 65.1-88, this Code Section also
          could be rendered meaningless and
          ineffective if the employee could ultimately
          defeat selective employment by his negative
          conduct at a job interview. Finally, the
          commission has the ability to weigh the
          evidence in a given case to determine
          whether an employee has purposely conducted
          a job interview to prevent an offer and
          ultimate employment from being procured by
          the employer. For these reasons, we hold
          where the commission determines on
          sufficient credible evidence that an
          employee unjustifiably refuses to cooperate
          with the placement efforts of the employer,
          such conduct is tantamount to an unjustified
          refusal of selective employment under Code
          § 65.1-63 and an actual offer of employment
          is not a prerequisite to a finding of such
          refusal.

Id. at 547, 375 S.E.2d at 546.

     We hold that Code § 65.2-510 and the rationale of Johnson

apply to this case.   However, because the commission did not

consider, on their merits, the nature and prospects of the job

interview, the justification asserted by Barnes for missing the

interview, and whether her missing the interview amounted to an

unjustified refusal of procured employment under the holding in

Johnson, we remand this case to the commission for determination

of the merits of those issues.

     The judgment of the commission is reversed and remanded.

                                         Reversed and remanded.


                                 - 6 -
