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COURT OF APPEALS OF VIRGINIA
Judges Benton, Humphreys and Retired Judge Duff*
HARTFORD ACCIDENT & INDEMNITY COMPANY
Record No. 1897-01-4
MEMORANDUM OPINION **
NOVEMBER 13, 2001
FAUSTINE I. COOPER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Roger L. Williams; Lauren M. Ebersole;
Williams & Lynch, on brief), for appellants.
(Gregory P. Perigard; Burgess, Locklin,
Kernbach & Perigard, PLLC, on brief), for
TravCorps and its insurer (hereinafter referred to as
"employer") contend that the Workers' Compensation Commission
erred in finding that Faustine I. Cooper proved that she
adequately marketed her residual work capacity after
November 18, 2000.
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.
Retired Judge Charles H. Duff took part in the
consideration of this case by designation pursuant to Code
Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
"The determination of whether a partially disabled employee
has adequately marketed [her] residual work capacity lies within
the fact finding judgment of the commission."
Wall Street Deli,
Inc. v. O'Brien, 32 Va. App. 217, 220-221, 527 S.E.2d 451, 453
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,
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).
ruling that Cooper proved that she adequately marketed her
residual work capacity beginning November 18, 2000, the
commission found as follows:
[Cooper] showed that she moved to California
. . . [on November 18, 2000], and
immediately began seeking employment. She
presented evidence of 21 different jobs for
which she made personal contacts, and she
also stated that she applied at the
California employment commission and made 16
contacts with potential employers through
that commission, for which she supplied
contact information. She also searched the
want-ads and inquired at places posting
On appeal, employer challenges the reliability of Cooper's
job search and her credibility.
As fact finder, the commission,
weighed Cooper's evidence and accepted her uncontradicted
testimony and documentary evidence regarding her marketing
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efforts after November 18, 2000.
It is well settled that
credibility determinations are within the fact finder's
Goodyear Tire & Rubber Co. v. Pierce, 5 Va.
App. 374, 381, 363 S.E.2d 433, 437 (1987).
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
Wagner Enters., Inc. v. Brooks, 12 Va. App.
890, 894, 407 S.E.2d 32, 35 (1991).
Because the commission's decision was based upon credible
evidence, it will not be disturbed on appeal.
affirm the commission's decision.
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