Opinion
Record No. 1920-94-4
Decided: January 24, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Michael L. Zimmerman; Brault, Palmer, Grove, Zimmerman, White Mims, on brief), for appellants. Appellants submitting on brief.
(Lawrence J. Pascal; Ashcraft Gerel, on brief), for appellee. Appellee submitting on brief.
Present: Judges Barrow, Koontz and Bray
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
On appeal, we view the evidence in the light most favorable to the party who prevailed before the commission. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Therefore, we do not disturb the commission's factual findings if credible evidence supports them. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). Furthermore, we may reverse the commission's finding that a party did not carry its burden of proof only if we can say, as a matter of law, that the party did carry its burden. Tomko v. Michael's Plastering Co., 210 Va. 697, 699, 173 S.E.2d 833, 835 (1970).
In this case, the employer had the burden to show that the employee was able to carry out all of the duties of his pre-injury employment. See Crystal Oil Co. v. Dotson, 12 Va. App. 1014, 1021, 408 S.E.2d 252, 253-54 (1991). The employee testified that, at the time in question, he was not able to return to his "full unrestricted pre-injury occupation." Any ambiguity in his testimony was resolved by the commission. In addition, the treating physician's report of work restrictions showed that the employee was restricted from lifting weight as heavy as that he was required to lift during his pre-injury employment. Based upon this record, we cannot say as a matter of law that the evidence was sufficient to meet the employer's burden of proof; therefore, we are bound by the commission's findings. Sky Chef, Inc. v. Rogers, 222 Va. 800, 805, 284 S.E.2d 605, 607 (1981); see Tomko v. Michael's Plastering Co., 210 Va. at 699, 173 S.E.2d at 835.
The decision of the commission is, therefore, affirmed.
Affirmed.