                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Bray, Annunziata and Overton


KENNY'S CONSTRUCTION, INC.
AND
ERIE INSURANCE EXCHANGE                       MEMORANDUM OPINION *
                                                  PER CURIAM
v.   Record No. 1627-96-3                      DECEMBER 17, 1996

ROGER W. RICHARDS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (Benjamin J. Trichilo; Trichilo, Bancroft,
            McGavin, Horvath & Judkins, on briefs), for
            appellants.

            (Terry L. Armentrout, on brief), for
            appellee.



     Kenny's Construction, Inc. and its insurer (hereinafter

collectively referred to as "employer") contend that the Workers'

Compensation Commission ("commission") erred in (1) refusing to

consider employer's labor market survey received by the

commission after the record closed; (2) finding that Roger

Richards ("claimant") made a good faith effort to market his

residual work capacity; and (3) finding that claimant sustained

an injury by accident arising out of and in the course of his

employment on June 6, 1995.   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.    Labor Market Survey

     The hearing in this case took place on December 13, 1995.

At the hearing, the deputy commissioner agreed to hold the record

open for thirty days to allow employer to file a labor market

survey with the commission.       Pursuant to employer's January 10,

1996 request, the commission granted employer an extension until

January 26, 1996 within which to submit the labor market survey.

The commission received the survey on January 29, 1996, after

the record had closed.     Consequently, the commission refused to

consider the survey as evidence.
     The commission afforded employer ample time within which to

submit the survey as part of the record.       Yet, the commission did

not receive the survey until after the record closed.      Under

these circumstances, we cannot find that the commission abused

its discretion by refusing to consider the survey.

                            II.    Marketing

     In order to establish entitlement to benefits, a partially

disabled employee must prove that he has made a reasonable effort

to procure suitable work but has been unable to do so.       Great

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d

98, 101 (1987).   "What constitutes a reasonable marketing effort

depends upon the facts and circumstances of each case."       The

Greif Companies v. Sipe, 16 Va. App. 709, 715, 434 S.E.2d 314,

318 (1993).   We have discussed factors which the commission

should consider in deciding whether a claimant has made



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reasonable good faith efforts to market his remaining capacity:
          (1) the nature and extent of employee's
          disability; (2) the employee's training, age,
          experience, and education; (3) the nature and
          extent of employee's job search; (4) the
          employee's intent in conducting his job
          search; (5) the availability of jobs in the
          area suitable for the employee, considering
          his disability; and (6) any other matter
          affecting employee's capacity to find
          suitable employment.


National Linen Serv. v. McGuinn, 8 Va. App. 267, 272, 380 S.E.2d

31, 34 (1989) (footnotes omitted).   In reviewing the commission's

findings, "we view the evidence in the light most favorable

to . . . the party prevailing before the commission."     Id. at

270, 380 S.E.2d at 33.

     So viewed, the evidence established that the claimant, a

thirty-nine-year-old carpenter with a ninth grade education,

registered with the Virginia Employment Commission on September

12, 1995 and contacted approximately five employers each week

thereafter.   Claimant submitted a list of forty-four job

contacts.   The medical record revealed that although Dr. Mark

Prager signed a note on June 17, 1995 releasing claimant to

return to work as of June 26, 1995, Dr. Prager also referred

claimant to Dr. Frederick Fox at that time.   On June 28, 1995,

Dr. Fox opined that claimant was disabled from working.     On

September 11, 1995, Dr. Fox indicated that claimant should be

matched with a rehabilitation counselor for consideration of

light-duty work.   Claimant began his job search the next day.

     Based upon this record, we cannot say as a matter of law


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that the commission erred in ruling that claimant had no duty to

market his residual capacity until after September 11, 1995 and

that he adequately marketed his residual capacity after that

date.

                       III.   Injury by Accident

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

to the prevailing party below.     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.     James v. Capitol Steel

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

        Claimant testified that on June 6, 1995, at approximately

2:15 p.m., while working at a job site at Great Oaks, he felt a

sudden tearing across his back while lifting a 600-pound

pre-fabricated wall onto a deck with his co-worker, Greg

Campbell.    Claimant testified that he told his supervisor, Tim

Cubbage, about the accident shortly after it occurred.    Claimant

also stated that he called the owner, Kenny Cubbage, the next

morning and informed Kenny Cubbage that he would not be coming

into work because of the accident.

        On June 8, 1995, claimant sought medical treatment from

Dr. Prager.    Dr. Prager recorded a history of claimant sustaining

a back injury at work on June 7, 1995 while lifting a

pre-fabricated wall.    Claimant testified that Dr. Prager

incorrectly recorded the accident date.     On June 28, 1995, Dr.



                                   4
Fox recorded a history consistent with claimant's description of

the accident.

     Claimant's testimony conflicted in various respects with the

testimony of Campbell and the Cubbages, employer's witnesses.

The commission, after observing the demeanor of the witnesses and

reviewing the totality of the evidence, found claimant credible

and afforded greater weight to his testimony than to the contrary

accounts of employer's witnesses.
     "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).       It is

well settled that credibility determinations are within the fact

finder's exclusive purview.    Goodyear Tire & Rubber Co. v.

Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987).      In this

instance, the issue of whether claimant sustained an injury by

accident arising out of and in the course of his employment was

entirely dependent upon the credibility of the witnesses.      The

commission, in considering the testimony of the witnesses, found

claimant's testimony, which was corroborated by the medical

histories, to be credible.    We are bound by that finding.

"Although contrary evidence may exist in the record, findings of

fact made by the commission will be upheld on appeal when

supported by credible evidence."       Bullion Hollow Enters., Inc. v.




                                   5
Lane, 14 Va. App. 725, 730, 418 S.E.2d 904, 907 (1992).

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

                                                  Affirmed.




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