Aiahun Semere v R.H. Macy & Company, et al

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Bray, Annunziata and Frank
AIAHUN SEMERE
MEMORANDUM OPINION*
v. 	Record No. 0533-99-4 	PER CURIAM
JULY 20, 1999
R.H. MACY & COMPANY, INC. AND
ZURICH AMERICAN INSURANCE
COMPANY OF ILLINOIS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(James J. Gallinaro; Ray & Gallinaro, on
brief), for appellant.
(Charles F. Midkiff; Midkiff & Hiner, P.C.,
on brief), for appellees.
Aiahun Semere (claimant) contends that the Workers'
Compensation Commission (commission) erred in finding that R.H.
Macy & Company, Inc. and its insurer (hereinafter referred to as
"employer") proved that claimant was released to return to all of
the duties of his pre-injury employment. 	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.
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).
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

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, 488 (1989).
On March 27, 1998, after reviewing a description of
claimant's pre-injury job as a salesman of household appliances,
Dr. Jorge Mondino opined that claimant was released to return to
his pre-injury position. 	On that same date, after receiving a
copy of claimant's pre-injury job description and based upon an
EMG performed on claimant, Dr. Ali Ganjei agreed that claimant was
released to his pre-injury job. 	In addition, on April 16, 1998,
Dr. Neil Kahnovitz examined claimant at employer's request. 	Dr.
Kahnovitz noted that claimant presented with "rather exaggerated
symptoms and a total lack of objective findings to correlate with
his magnified pain complaints." 	Dr. Kahnovitz agreed "completely
with the prior recommendations of return to work in at least a
sedentary setting immediately." 	Dr. Kahnovitz opined that "there
is no reason to think that, based on the relatively
sedentary/light duties involved as a salesman, the patient could
not return to that job at this time."
These uncontradicted medical opinions provide credible
evidence to support the commission's finding that employer met its
burden of proving that claimant was able to perform all of the
duties of his pre-injury work. 	Moreover, the commission correctly
acknowledged that in a case, such as this one, where the claimant
presented no evidence to contradict the accuracy of the pre-injury
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job description, employer was under no duty to offer additional
affirmative evidence as to the accuracy of that job description.
The fact that claimant may have been performing a particular act
at the time of his injury is of no significance, where, as here,
there was no evidence that such an act was a required or expected
part of his pre-injury job.
For these reasons, we affirm the commission's decision.
Affirmed.
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