Tidewater Equipment Corp. v David Earl Russell

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Baker, Bray and Overton
Argued at Norfolk, Virginia
TIDEWATER EQUIPMENT CORPORATION
v. 	Record No. 2516-94-1 	MEMORANDUM OPINION* BY
JUDGE RICHARD S. BRAY
DAVID EARL RUSSELL 	OCTOBER 3, 1995
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Susan B. Potter (Henry P. Bouffard; Vandeventer,
Black, Meredith & Martin, on brief), for appellant.
William E. Baggs for appellee.
Tidewater Equipment Corporation (employer) appeals the
decision of the Workers' Compensation Commission (commission)
awarding temporary total disability and medical benefits to David
Earl Russell (claimant). 	Employer contends that claimant is
precluded from benefits because he misrepresented his physical
condition to procure employment. 	We disagree and affirm the award.
The parties are fully conversant with the record, and we
recite only those facts necessary to this opinion.
On appeal, we construe the evidence in the light most
favorable to the party prevailing below, claimant in this instance.
Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,
339 S.E.2d 916, 916 (1986). 	"If there is evidence, or reasonable
inferences can be drawn from the evidence, to support the
Commission's findings, they will not be disturbed on review, even
though there is evidence in the record to support a contrary
finding." 	Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App.
*Pursuant to Code § 17-116.010 this opinion is not designated
for publication.

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276, 279, 348 S.E.2d 876, 877 (1986) (citations omitted); see Code
§ 65.2-706. 	"In determining whether credible evidence exists,"
this Court will not "retry the facts, reweigh the preponderance of
the evidence, or make its own determination of the credibility of
the witnesses." 	Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991) (citation omitted).
It is uncontroverted that claimant suffered a back injury on
September 2, 1993, while working for employer as a "shipfitter."
Claimant had previously injured his back during military service in
1986 and 1988 and was medically discharged on May 1, 1990. 	A third
back injury resulted from a work-related accident with another
employer in May, 1991, which required surgical intervention.
Claimant's treating surgeon on that occasion concluded that
claimant had reached maximum medical improvement, ordered a
Functional Capacity Evaluation (FCE), and recommended "retraining"
consistent with the FCE. 	The FCE report, dated June 4, 1992, noted
that any "vocation that require[d] heavy lifting or sustained
standing, sitting or walking" was "not . . . feasible" for
claimant.
On February 26, 1993, claimant applied for the position with
employer. 	This work involved lifting up to 75 pounds, "bending,"
and "climbing." 	On the related employment application, claimant
disclosed that he had been "operated on," "[r]eceived worker's
[sic] compensation benefits," injured his back, and "[l]ost work
time because of [an] occupational injury." 	Elsewhere on the
application, claimant wrote that his "lower back was operated on do

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[sic] to a fall," with attendant "worker's [sic] compensation until
[he] was well. 	5/1990 - Release 11/90." 	He confirmed that he was
"aware of all job related functions" and was "able to perform" in
the "position." 	Claimant later attributed inaccuracies and
omissions in the application to carelessness and oversight and
denied previous knowledge of the FCE.
William Moore, employer's office manager, testified that
employer was unaware of claimant's 1991 injury until after the
subject accident. 	He testified that claimant was hired conditioned
upon the representations that he understood and could perform the
tasks of a shipfitter, and had been medically released to "full"
duty.
It is well established that
[a] false representation 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 Bean v. Hungerford
Mechanical Corp., 16 Va. App. 183, 186, 428 S.E.2d 762, 764 (1993).
Here, however, we do not find that claimant misrepresented his
physical condition as contemplated by McDaniel. 	We concur with the
commission that, although the "FCE reflect[ed] lifting, standing,
walking, and sitting restrictions[,] . . . [t]here is insufficient
evidence that . . . claimant's job [with employer] exceeded these

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somewhat vague restrictions." 	Moreover, he denied knowledge of
these limitations.
Claimant's awareness of the "job related functions," and
assurances to employer that he could perform them, also do not
constitute misrepresentations. 	As the commission noted, "[b]oth of
these queries call[ed] for a subjective determination by the
[claimant] as to his physical capabilities." 	Although claimant may
have considered himself incapable of "heavy labor" in June, 1992,
intervening employment and other circumstances justified a
different assessment at the time of the disputed application to
employer.
Accordingly, our review of the entire record discloses
sufficient support in the evidence for the commission's finding
that claimant did not misrepresent his physical condition to
employer, and we affirm the decision.1
Affirmed.
1Because the deputy commissioner made no "specific, recorded
observation regarding the behavior, demeanor or appearance" of a
witness in relation to an explicit credibility finding, the
commission was not required to "articulate[] a basis for its
different conclusion . . . ." 	Bullion Hollow Enters., Inc. v.
Lane, 14 Va. App. 725, 728-29, 418 S.E.2d 904, 907 (1992).