Frank Edward Sergi v. Washington Metro Area Transit

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
FRANK EDWARD SERGI
MEMORANDUM OPINION *
v. Record No. 2107-98-4 PER CURIAM
MARCH 2, 1999
WASHINGTON METRO AREA TRANSIT AUTHORITY
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
(Matthew H. Swyers; Koonz, McKenney, Johnson,
DePaolis & Lightfoot, on brief), for
appellant.
(Robert C. Baker, Jr.; Michael E. Ford; Mell,
Brownell & Baker, on brief), for appellee.
Frank E. Sergi contends that the Workers' Compensation
Commission erred in finding (1) he failed to prove a compensable
injury by accident occurring on July 21, 1997, in his employment
with Washington Metro Area Transit Authority ("WMATA"); and (2)
he inadequately marketed his residual work capacity after August
22, 1997. 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.
I.
The commission affirmed the deputy commissioner's ruling
that Sergi's evidence "established the occurrence of a
compensable injury by accident." The commission held that
"[t]his evidence establishes an injury by accident arising out of
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
and in the course of the employment." WMATA did not appeal that
finding to this Court. Therefore, it has become final and is
binding upon this Court.
The full commission reversed the deputy commissioner's
holding that Sergi's back strain aggravated his pre-existing
degenerative disc disease. Based upon a review of the medical
evidence, the commission found credible evidence that the July
21, 1997 muscular strain did not aggravate Sergi's pre-existing
degenerative disc disease. The evidence contains opinions from
Dr. Levitt and Dr. Nieman that Sergi suffered only a muscular
strain of the lower back. Although Dr. Cirillo responded
affirmatively to a questionnaire that asked whether the disc
disease was causally related to the accident, the commission
"found it unlikely that [Sergi's] degenerative disc disease, with
which he was diagnosed three days after the accident, could have
been caused by the accident."
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). "Questions raised by conflicting medical
opinions must be decided by the commission." Penley v. Island
Creek Coal Co., 8 Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
In its role as fact finder, the commission was entitled to weigh
the medical evidence and to give greater weight to the opinions
of Dr. Neiman and Dr. Levitt. Furthermore, "[w]here reasonable
inferences may be drawn from the evidence in support of the
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commission's factual findings, they will not be disturbed by this
Court on appeal." Hawks v. Henrico County Sch. Bd., 7 Va. App.
398, 404, 374 S.E.2d 695, 698 (1988). "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
Enters., Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35
(1991). The commission's finding that the muscular strain
suffered by Sergi as a result of his compensable injury by
accident did not aggravate his pre-existing degenerative disc
disease is supported by credible evidence and, thus, is binding
on this appeal.
II.
The parties stipulated at the hearing that Sergi was
partially incapacitated after August 22, 1997. Accordingly, we
must address the marketing issue.
To establish his entitlement to benefits, Sergi had the
burden of proving "that he made a reasonable effort to procure
suitable work but was unable to market his remaining work
capacity." 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 Sergi's evidence sustained his burden of proving that he
made a reasonable effort to market his residual work capacity,
the commission's findings are binding and conclusive upon us.
See Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173
S.E.2d 833, 835 (1970).
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Sergi's evidence proved he was released by his treating
physician on August 22, 1997 to return to light-duty work. Sergi
testified that his efforts to find employment after that date
consisted of making telephone calls to prospective employers,
looking in the newspaper, and talking to some friends. He
documented his efforts on a list which showed seven job contacts
between September 22, 1997 and February 7, 1998. Sergi made one
job contact on September 22, 1997 and one job contact on October
3, 1997. He did not make another job contact, according to his
written list, until February 1, 1998. The remaining five job
contacts contained on the written list occurred during a six-day
period, between February 2, 1998 and February 7, 1998, three
weeks before the hearing. One of those job contacts was with the
same prospective employer Sergi had contacted on October 3, 1997.
Although Sergi testified that the list did not include all of his
job contacts, he admitted that he made only one job contact in
September 1997 and one job contact in October 1997. Sergi did
not list any employers he contacted by telephone or any friends
he may have spoken to about prospective jobs.
Based upon this record, the commission affirmed the deputy
commissioner's ruling that Sergi failed to prove that he made a
reasonable effort to fully market his residual work capacity
after August 22, 1997. "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 party before the commission." National Linen Service
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v. McGuinn, 8 Va. App. 267, 270, 380 S.E.2d 31, 32 (1989). Thus,
we note that the commission rejected part of Sergi's testimony
and found as follows:
First, we note that [Sergi] kept
detailed records of his mileage to and from
medical appointments for the purposes of
seeking reimbursement as a part of his claim
for benefits. . . . We think it likely that
if he had been making telephone contacts as
he alleged, that those contacts would have
been recorded as well. Second, we find it
unlikely that in almost six months there were
only seven places of potential employment in
the Washington Metropolitan Area that he
found at which he could file applications.
Third, [Sergi] apparently did not register
with the Virginia Employment Commission and
utilize their services in attempting to
locate employment. Considering the factors
set forth in National Linen Service v.
McGuinn, 8 Va. App. 267, 380 S.E.2d 31(1989), we do not think that [Sergi] has
demonstrated a reasonable effort to fully
market his residual capacity.
The evidence concerning Sergi's efforts to market his
residual capacity after August 22, 1997 was largely dependent
upon his credibility. The commission found to be unpersuasive a
significant part of Sergi's testimony regarding his marketing
efforts. As fact finder, the commission was entitled to reject
Sergi's testimony. It is well settled that credibility
determinations are within the fact finder's exclusive purview.
See Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381,
363 S.E.2d 433, 437 (1987). Based upon the documentary evidence
submitted by Sergi, which showed a minimal marketing effort, at
best, we cannot conclude as a matter of law that he sustained his
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burden of proving that he made a reasonable effort to market his
residual work capacity after August 22, 1997.
For these reasons, we affirm the commission's decision.
Affirmed.
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