                     COURT OF APPEALS OF VIRGINIA


Present:    Chief Judge Fitzpatrick, Judge Bumgardner and
            Senior Judge Hodges


CORNING, INC. AND
 ROYAL INDEMNITY COMPANY

v.   Record No. 1752-00-3

TYLER V. BROWN                              MEMORANDUM OPINION*
                                                 PER CURIAM
TYLER V. BROWN                               NOVEMBER 28, 2000

v.   Record No. 1768-00-3

CORNING, INC. AND
 ROYAL INDEMNITY COMPANY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (James A. L. Daniel; Elizabeth B. Carroll;
             Daniel, Vaughan, Medley & Smitherman, P.C.,
             on briefs), for Corning, Inc. and Royal
             Indemnity Company.

             (Henry G. Crider; Crider Law Office, on
             briefs), for Tyler V. Brown.


     Corning, Inc. and its insurer (hereinafter referred to as

"employer") contend that the Workers' Compensation Commission

erred in finding that Tyler V. Brown (claimant) proved that (1)

he sustained a compensable injury by accident on February 4,

1999; and (2) employer was responsible for the cost of medical

treatment provided by Dr. Frank Tate, a chiropractor.       On


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
cross-appeal, claimant contends that the commission erred in

finding that he failed to market his residual work capacity on

or after May 17, 1999.      Upon reviewing the record and the briefs

of the parties, we conclude that these appeals are without

merit.   Accordingly, we summarily affirm the commission's

decision.   See Rule 5A:27.

                       I.    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).

     Claimant testified that on Thursday, February 4, 1999, at

approximately 1:00 p.m., while working for employer as a

tradesman, he was repairing a lehr belt.     This job required that

he wedge a 2 x 6 board under the belt.     As claimant pried and

pushed the board, in an effort to get it under the belt, he felt

a burning sensation in his mid-back.      He had never felt this

type of pain before.   He took a break and walked around.       The

sharp pain subsided, but he still felt a bulging pain.     He was

able to finish working that day, completing his shift at

3:30 p.m.   That day claimant mentioned to Mike Davis, his group

leader, that he thought he had pulled something in his back.

     Claimant worked Friday, February 5, 1999 and testified that

his back did not start bothering him until he woke up on

Saturday morning.



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     On Monday, February 8, 1999, claimant went to work and

reported the incident to Carolyn Harrison, the plant nurse.

Harrison did not offer claimant a panel of physicians.    Claimant

sought treatment from Dr. Tate that day.

     On Tuesday, February 9, 1999, claimant reported the

incident to Mike Jones, his supervisor.    Claimant did not want

to report his accident as a workers' compensation claim at that

time because the company was in the middle of a period of no

injuries and claimant thought that his back would get better in

a few weeks.   Claimant completed a form for short term

disability, but he did not know that it would be submitted as

unrelated to work and he did not indicate on the form whether

the accident happened at work.    Sometime in February 1999,

claimant told employer's personnel supervisor, Kevin Konopski,

that he wanted to "treat" the injury as a disability and not as

a workers' compensation claim.    Konopski admitted that he was

aware that an accident report had been completed which indicated

that claimant hurt his back while on the job on February 4, 1999

at 1:00 p.m.   Konopski admitted that claimant never told him

that the work-related incident had not happened.

     Claimant denied telling any co-workers that his back injury

was not work-related.   Claimant agreed that he had back problems

before February 4, 1999 and that he had treated with Dr. Tate

for those problems.   The record established that claimant had



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not undergone any treatment for his back since 1991 until after

the February 4, 1999 incident.

        A February 9, 1999 accident report signed by claimant and

Jones reflected that claimant was pushing a 2 x 6 board under a

172 lehr belt, which required him to lift, lower, and push at

the same time.    The report stated, "Did not feel anything at the

time.    Woke up next day with a sore back."   The report noted

that the injury occurred while performing normal duties, on the

job, during regular work hours.    Claimant specifically denied

making the statement that he did not feel anything at the time

of the incident.

        A document entitled "PeopleSoft Incident Detail," completed

on February 9, 1999, showed an incident of February 4, 1999,

occurring at 1:00 p.m and reported on February 8, 1999.    The

report listed the nature of the injury as "[b]ack pain, hurt

back" and the accident type as "[o]verexertion in pulling or

pus[hing]."    The report described the incident as follows:

"Employee stated he was pushing a 2"x6" board under 172 lehr

belt.    It required lifting and lowering and pushing at the same

time.    He did not fell anything at the time.   Woke up next day

with sore back."

        In ruling that claimant proved he sustained an injury by

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

February 4, 1999, the commission found as follows:



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          [W]e note the claimant's testimony
          concerning a specific incident which is
          corroborated by the various medical
          histories. His testimony is buttressed by
          the PeopleSoft Incident Detail report. The
          employer's initial accident report indicates
          a work injury and generally comports with
          claimant's testimony except that the report
          reflects that the claimant did not feel
          anything at the time. The claimant
          testified to feeling some pain at the time
          but that it eased up, allowing him to
          continue to work the following day. . . .

               We are not persuaded that an accident
          did not occur merely because the claimant
          elected to file for short term disability.
          At the time the short-term disability was
          sought, Konopski was aware of the report
          indicating a work related injury. . . . We
          note the claimant's testimony that he
          believed the disability to be for a short
          period of time and did not want to be the
          person to break the lost time record. . . .

               *    *     *    *    *     *    *

               While the claimant agreed and several
          witnesses testified to discussions
          concerning back pain prior to this incident,
          we can find no medical report to indicate
          any treatment since April 1991, when he saw
          the chiropractor. There is no medical
          evidence that claimant had any disc
          herniation or other similar problem. . . .
          No witnesses testified that prior to the
          accident the claimant missed any time from
          work as a result of a back problem.

     "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



                                - 5 -
S.E.2d 858, 865 (1989).   "In determining whether credible

evidence exists [to support the commission's ruling], 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).      "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."    Id.

     Claimant's testimony, which was consistent with the various

medical histories and which was generally corroborated by the

accident report and PeopleSoft Incident Report, constituted

credible evidence to support the commission's finding that

claimant proved that he sustained a specific identifiable

incident at work on February 4, 1999, resulting in a back

injury.   As fact finder, the commission was entitled to weigh

the evidence, accept claimant's testimony, and to reject any

contrary testimony of employer's witnesses.     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).     Because the

commission's finding is supported by credible evidence, we will

not disturb it on appeal.




                                - 6 -
                        II.    Medical Treatment

     In ruling that employer was responsible for the cost of Dr.

Tate's treatment up through May 12, 1999, the commission found

as follows:

          [U]ntil May 12, 1999, the employer did not
          provide the claimant with a panel of
          physicians although being aware of an on the
          job injury. . . . We find no evidence that
          Dr. Tate treated the claimant for this
          incident after May 7, 1999. We find that
          Dr. [Stuart J.] Kramer, who was selected
          from the panel, in turn, referred the
          claimant to Dr. [Lawrence F.] Cohen, who
          then referred him to Dr. [Ramon R.] Erasmo
          for a second opinion. Dr. Cohen ultimately
          referred the claimant to Dr. [Eduardo]
          Fairfield [sic]. We do note, however, that,
          inasmuch as the employer denied the claim,
          the claimant was free to seek medical
          treatment from a physician of his choice.
          Therefore, . . . we can find no evidence of
          unauthorized medical care.

     Contrary to employer's assertions in its brief, the record

established that from the beginning, claimant consistently

reported an on-the-job injury to employer's representatives and

his medical providers.    Employer did not offer claimant a panel

of physicians before May 12, 1999, and, therefore, he was

entitled to seek treatment from Dr. Tate from February 1999

through May 12, 1999.

                              III.    Marketing

     "In determining whether a claimant has made a reasonable

effort to market his remaining work capacity, we view the

evidence in the light most favorable to . . . the prevailing


                                     - 7 -
party before the commission . . . ."    National Linen Serv. v.

McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989).     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).   Unless we can say as a matter of law that

claimant’s evidence sustained his burden of proof, the

commission’s findings are binding and conclusive upon us.        Tomko

v. Michael’s Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833,

835 (1970).

     It was undisputed that on May 17, 1999, Dr. Kramer released

claimant to light-duty work with restrictions of no lifting more

than fifteen to twenty pounds, no excessive bending, and no

squatting or crawling.   Claimant's marketing efforts after May

17, 1999 consisted of seeking light-duty from employer, which

was not available, and attempting to register with the VEC

veterans outreach program.    Claimant was advised he was not

eligible for that program until he was released to full-duty by

his physician.   Claimant pursued no other means of employment.

He did not seek assistance from employment agencies.   He did not

consult newspaper advertisements or complete any applications or

arrange for any interviews.

     Contrary to claimant's argument on appeal, the fact that he

was undergoing physical therapy three times per week after May

                                - 8 -
17, 1999 did not excuse his obligation to seek suitable

employment.

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

that claimant marketed his residual work capacity after May 17,

1999.

        For the reasons stated, we affirm the commission's

decision.

                                                             Affirmed.




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