COURT OF APPEAL S OF VIRGINIA

Present: Judg es Bray, Annunz iata and Frank

AIAHUN SEMERE MEMORANDUM OPINION * v. Record No. 05 33-99-4 PER CURIAM JULY 20, 1999 R.H. MACY & COMP ANY, INC. AND ZURICH AMERIC AN INSURANCE COMPANY OF ILLINOIS

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION (James J. Gallinaro; Ray & Gall inaro, on brief), for appellant. (Charles F. Midkiff; Midkiff & Hi ner, P.C., on brief), for appellees.

Aiahun Semere (c laimant) contends that the Workers' Compensation Commission (commission) erred in finding that R.H. Macy & Company, Inc. and its insurer (hereinafter re ferred to as "employer") prov ed that claimant was releas ed to return to all of the duties of hi s pre-injury employment . Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we su mmarily 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 Bl dg. Corp. v. Mullins , 10 Va. App. 211, 212, 39 0 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 comm ission will be up held on appeal if supported by cr edible 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 ap pliances, Dr. Jorge Mondino opined that clai mant was released to return to his pre-injury position . On that same da te, after re ceiving a copy of claimant 's pre-injury job descri ption and base d upon an EMG performed on claima nt, Dr. Ali Ganj ei agreed that claimant was released to his pre-injury job. In addition, on April 16, 1998, Dr. Neil Kahnovitz exam ined claimant at empl oyer's request. Dr. Kahnovitz noted th at claimant presented wi th "rather exaggerated symptoms and a total la ck of objective findings to correlate with his magnified pain complaints." Dr. Kahnovitz agre ed "completely with the prior recommen dations of return to work in at least a sedentary setting immediatel y." Dr. Kahnovitz op ined that "there is no reason to think that, ba sed on the relatively sedentary/ligh t duties involved as a sa lesman, the pa tient could

not return to that job at this time." These uncontra dicted medical opinio ns provide credible evidence to supp ort the commission 's finding that employer met its burden of provin g that claimant was able to perform all of the duties of his pr e-injury work. Moreover, the comm ission correctly acknowledged that in a case, such as this one, wh ere the claimant presented no evidence to contradict the accura cy of the pre-injury

- 2 -job descriptio n, employer was under no duty to offe r additional affirmative evid ence as to the ac curacy of that jo b descript ion. The fact that cl aimant may have been perf orming a particular act at the time of his inju ry is of no signific ance, where, as here, there was no evidence th at such an act was a required or expected part of his pr e-injury job. For these reas ons, we affirm the co mmission's decision. Affirmed.

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