Farm Fresh v. William Gregory Golicic ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
FARM FRESH AND TRAVELERS INSURANCE COMPANY
v. Record No. 2469-94-1 MEMORANDUM OPINION * BY
JUDGE NELSON T. OVERTON
WILLIAM GREGORY GOLICIC OCTOBER 10, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Warren H. Britt (Curtis G. Manchester; Vernon C.
Howerton, Jr.; Parvin, Wilson, Barnett & Guynn,
P.C., on briefs), for appellants.
John H. Klein (Rutter & Montagna, on brief), for
appellee.
The Workers' Compensation Commission awarded William Gregory
Golicic (claimant) benefits from an injury while working for Farm
Fresh (employer). The full commission found that claimant had
not misrepresented his physical condition to employer at the time
of hiring. After reviewing the record, we reverse that ruling
and remand the case to the commission for the necessary
determination of the causation of the injury in question.
Claimant worked for employer from January 1990 to April
1991. Later he worked for IGA, a different company, where, on
June 8, 1992, claimant sustained a back injury. From June 9 to
August 3 of that year claimant applied for and received total
disability payments. On June 28, 1992, claimant started to work
for Farm Fresh again. In response to questions on the July 6,
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
1992, application for that job, claimant disclosed no
restrictions or limitations on his physical condition.
Claimant asserts that he answered the questions truthfully
because he subjectively believed that he could perform the job
adequately. In rejecting this assertion, we rely mainly upon
Bean v. Hungerford Mechanical Corp., 16 Va. App. 183, 428 S.E.2d
762 (1993). In Bean, we recognized the right of the employer "to
know the true health condition of an employee before assigning
work duties." Bean, 16 Va. App. at 187, 428 S.E.2d at 764-65.
The employer must be fully informed because it accepts the
employee with all his infirmities and an aggravation of a
previous injury by accident becomes the responsibility of the
employer. Id. A false misrepresentation as to physical
condition or health made by an employee in procuring employment
will preclude workers' compensation benefits if a causal
relationship between the injury and the misrepresentation is
shown and (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.
Bean, 16 Va. App. at 186, 428 S.E.2d at 764; see McDaniel v.
Colonial Mechanical Corp., 3 Va. App. 408, 411, 350 S.E.2d 225,
227 (1986).
Claimant, receiving total disability payments at the time of
the application, must be charged with a knowing false
misrepresentation. The record shows further that employer relied
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upon this misrepresentation in hiring claimant. The only
question remaining is that of the causal connection between the
misrepresentation and the resulting injury. We leave
determination of this issue to the commission.
For the reasons above, we reverse the finding of the
commission on the issue of claimant's false misrepresentation and
remand the case for the resolution of causation.
Reversed and remanded.
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