Lilly Trucking of VA, Inc v. Curtis R. Haley ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Coleman and Willis
LILLY TRUCKING OF VIRGINIA, INC.
AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
MEMORANDUM OPINION *
v. Record No. 0106-95-4 PER CURIAM
MAY 23, 1995
CURTIS R. HALEY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
(Dawn E. Boyce; Trichilo, Bancroft, McGavin, Horvath &
Judkins, on briefs), for appellants.
(Robert B. Patterson, on brief), for appellee.
Lilly Trucking of Virginia, Inc. and its insurer
(hereinafter collectively referred to as "employer") contend that
the Workers' Compensation Commission erred in finding that
(1) Curtis Haley's misrepresentations on his employment
application did not bar his claim for compensation benefits; and
(2) Haley was totally disabled since his August 25, 1992,
compensable injury by accident. 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. Rule 5A:27.
On appellate review, we construe the evidence in the light
most favorable to the prevailing party below. R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1990). When so viewed, the evidence proved that Haley sustained
an injury by accident on August 25, 1992, when a binder struck
his head, nose, and left eye. Haley suffered severe injuries,
including several head fractures. Shortly after his
August 25, 1992, accident, Haley developed headaches and
seizures. He also developed problems with his eyesight. The
employer voluntarily paid temporary total disability benefits to
Haley until October 1993. Due to the employer's termination of
benefits, Haley filed an application for benefits with the
commission on November 3, 1993.
Employment Application
The employment application that Haley filed with the
employer on July 6, 1992, indicated that Haley had no physical
limitations and was physically capable of performing heavy manual
work. However, at the hearing Haley admitted that he injured his
back in a September 3, 1990, accident. On September 3, 1992, a
Motion for Judgment was filed on Haley's behalf seeking damages
for the 1990 accident. This pleading alleged that Haley
sustained a broken back and permanent disability due to a
September 3, 1990, accident. Haley testified that he had never
seen this pleading and he denied that he suffered a broken back
as a result of that accident. Sharon Lilly, employer's
secretary/treasurer, testified that Haley would not have been
hired if the employer had known of Haley's back condition and
related lawsuit. She stated that the employer's drivers were
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required to engage in heavy manual work. Lilly testified,
however, that during Haley's employment, no complaints were made
concerning his ability to perform his work and he was not
reprimanded concerning his work performance.
In rejecting the employer's misrepresentation defense, the
commission found as follows:
[T]he uncontradicted testimony of Ms. Lilly
establishes the employer relied on the
representation. However, the evidence does
not show this reliance resulted in the injury
or that there is a causal relationship
between the asserted misrepresentation and
the injury. There is no evidence
establishing that some infirmity, limitation
or injury of [Haley's] back hindered him in
securing the load or otherwise caused his
industrial accident.
This Court has held:
A false misrepresentation as to physical
condition or health made by an employee in
procuring employment will preclude workers'
compensation benefits for an otherwise
compensable injury if a causal relationship
between the injury and the false
representation is shown and if it is also
shown that (1) the employee knew the
representation to be false, (2) the employer
relied upon the false representation, and
(3) such reliance resulted in the consequent
injury to the employee.
McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 411-12,
350 S.E.2d 225, 227 (1986) (citations omitted). See also Bean v.
Hungerford Mechanical Corp., 16 Va. App. 183, 186, 428 S.E.2d
762, 764 (1993); Grimes v. Shenandoah Valley Press, 12 Va. App.
665, 667, 406 S.E.2d 407, 409 (1991).
No evidence proved the existence of a causal relationship
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between Haley's August 25, 1992, injuries and his representation
on the employment application that he was not under any physical
limitations. Although the evidence showed that Haley sustained a
back injury that he failed to disclose on his employment
application, no evidence causally related Haley's back condition
to the August 25, 1992, industrial accident.
The employer's further contention that Haley's failure to
obtain a DOT physical barred his recovery of compensation
benefits is without merit. The evidence showed that Haley had
fifteen days from August 24, 1992, within which to obtain the
physical. Accordingly, the commission did not err in rejecting
the employer's misrepresentation defense.
Disability
In ruling that Haley was totally disabled since
August 25, 1992, the commission found as follows:
The Deputy Commissioner found that
[Haley] had remained totally disabled since
the August 25, 1992 accident. We agree. The
fact that he drives during short trips around
town and engages in light tasks does not
establish he is able to perform work at any
level on a regular basis. We note, as did
the Deputy Commissioner, that the medical
record is not comprehensive on the issue of
[Haley's] work capacity. The only specific
report is from Dr. Shuping, who opined in
early 1994 that [Haley] cannot drive for at
least another year. Considering Dr.
Shuping's report, [Haley's] ongoing headaches
and seizures stemming from serious head
trauma, and the lack of medical evidence to
the contrary, we find the record supports the
Deputy Commissioner's decision.
Factual findings made by the commission will be upheld on
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appeal if supported by credible evidence. James v. Capitol Steel
Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
Haley's testimony and Dr. Shuping's reports constitute credible
evidence to support the commission's finding. Accordingly, the
commission did not err in ruling that Haley remained totally
disabled since his August 25, 1992, industrial accident.
For the reasons stated, we affirm the commission's decision.
Affirmed.
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