COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
BASIC CONSTRUCTION COMPANY AND
FARMINGTON CASUALTY COMPANY/
TRAVELERS PROPERTY CASUALTY COMPANY
MEMORANDUM OPINION * BY
v. Record No. 2844-98-1 JUDGE RICHARD S. BRAY
AUGUST 17, 1999
DEBBIE HAMILTON
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
Francis G. Marrin (Law Office of Roger S.
Mackey, on brief), for appellants.
John H. Klein (Montagna, Klein & Camden,
L.L.P., on brief), for appellee.
Basic Construction Company and Travelers Property Casualty
Company (collectively employer) appeal a decision of the
Workers’ Compensation Commission (commission) awarding benefits
under the Workers’ Compensation Act (Act) to Debbie Hamilton
(claimant). Employer complains that the commission erroneously
(1) awarded claimant benefits after the deputy commissioner had
denied relief and claimant had made no timely request for
review, (2) determined that the claim was not barred by material
misrepresentations when seeking the employment, (3) found that
the injury resulted from a work-related accident, and (4)
concluded that claimant made a reasonable effort to market her
*
Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
residual capacity. Finding no error, we affirm the commission’s
award.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal. On appeal, we view the evidence in
the light most favorable to the party prevailing below, claimant
in this instance. See Crisp v. Brown’s Tysons Corner Dodge, Inc.,
1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986). Factual findings
by the commission that are supported by credible evidence are
conclusive and binding upon this Court on appeal. See Rose v.
Red’s Hitch & Trailer Servs., 11 Va. App. 55, 60, 396 S.E.2d 392,
395 (1990).
I.
On February 12, 1996, claimant lodged a claim with the
commission seeking benefits pursuant to the Act for certain
accidental injuries she suffered on August 28, 1995. A hearing
was conducted by Deputy Commissioner Wilder on April 11, 1997,
and, in defense of the application, employer asserted that (1)
claimant had misrepresented material facts on her employment
application, (2) her injuries were not occasioned by a
work-related accident, (3) she had failed to provide proper notice
of the alleged incident, and (4) she had not marketed her residual
capacity. By opinion dated May 16, 1996, the deputy found that
claimant had neither materially misrepresented her physical
condition nor failed to report the accident to the prejudice of
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employer, but, nevertheless, denied the claim, concluding that
claimant had not established that the accident “caused her injury
or disability.”
By letter dated May 20, 1997, claimant requested the deputy
to reconsider, “taking specific note” of correspondence in
evidence from her treating physician, Dr. Grasinger. In response,
the deputy wrote both parties on June 2, 1997:
I have received [claimant’s counsel’s] May
20, 1997 request for reconsideration. In
order to give the parties some certainty
regarding time limitations for review
requests, I am granting the request to
reconsider my May 16, 1997 Opinion; however,
I cannot yet rule on the merits of the claim
because the file has been returned to
Richmond. I have requested the file and will
issue a ruling on the merits as soon as I
have an opportunity to review the evidence.
After further review, the deputy resolved all issues in favor of
claimant and awarded benefits by opinion issued May 20, 1998.
Employer requested review of the decision by the full
commission, moving for enforcement of the deputy’s original
opinion and otherwise challenging the award. Employer contended
that, when the deputy did not vacate his earlier ruling within
twenty days, it became final pursuant to Code §§ 65.2-705,
65.2-706 and Commission Rule 3.1, thereby divesting him of
jurisdiction to re-decide the claim by the May 20, 1998 opinion.
In the alternative, employer asserted the defenses previously
considered by the deputy. The commission concluded that the
“Deputy Commissioner’s June 2, 1997, letter issued within twenty
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days, vacated the original opinion” and affirmed the decision of
May 20, 1998, resulting in the instant appeal by employer.
II.
Employer acknowledges on brief that “[t]he Deputy
Commissioner who has rendered an initial ruling retains
jurisdiction over the claim for twenty (20) days” and “may vacate
or amend [the] original opinion” within such period. See Code
§ 65.2-705(A); Rule 3.1, Rules of the Workers’ Compensation
Commission. However, employer contends that the deputy’s June 2,
1997 response to claimant’s motion to reconsider neither vacated
nor amended the original decision, resulting in finality after the
expiration of twenty days. See Code § 65.2-706. Employer’s
argument overlooks the deference accorded to the commission’s
interpretation of its orders.
“[I]t is within the commission’s discretion to . . . examine
the [order] of the deputy commissioner . . . to ascertain the
result intended,” and we will not disturb the commission’s
determination unless “arbitrary or capricious.” Rusty’s Welding
Service, Inc. v. Gibson, 29 Va. App. 119, 130, 510 S.E.2d 255,
260-61 (1999) (en banc). The commission determined that the
deputy’s correspondence to counsel, “granting the request to
reconsider [the earlier] opinion” and promising to “issue a ruling
on the merits” after further “review of the evidence,” “in effect,
vacated the original opinion.” The commission, therefore, decided
that the deputy “had jurisdiction to issue the May 20, 1998,
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opinion.” Our review of the record discloses ample support for
the commission’s interpretation of the deputy’s initial
disposition of claimant’s request, and we decline to disturb it on
appeal.
Employer next asserts that claimant is barred from benefits
because she misrepresented her physical capacity by not responding
to the inquiry, “Do you know of, or have you any physical
disability that could or would hinder or limit your activity while
working in your trade?” which appeared on her employment
application. Claimant testified that she “really overlooked” the
question in issue, but would have “marked no” in response because,
“[i]n [her] opinion, the three surgeries [she] had on [her] back
. . . would [not] act as a limiting factor on what [she] could do
as a laborer.” We recognize that
[a]n employee’s false representation in an
employment application will bar a later claim
for workers’ compensation benefits if the
employer proves that 1) the employee
intentionally made a material false
misrepresentation; 2) the employer relied on
that misrepresentation; 3) the employer’s
reliance resulted in the consequent injury;
and 4) there is a causal relationship between
the injury in question and the
misrepresentation.
Falls Church Const. Co. v. Laidler, 254 Va. 474, 477-78, 493
S.E.2d 521, 523 (1997) (citations omitted).
“The concealment of a material fact on an employment
application constitutes the same misrepresentation as if the
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existence of the fact were expressly denied.” Id. (citations
omitted).
However, the instant record discloses that claimant was under
no work restrictions at the time of her employment and did not
subsequently seek related medical care until after the August 28,
1995 injury. No evidence otherwise suggests that she
intentionally misrepresented her physical condition to employer.
Under such circumstances, the commission’s finding that “employer
failed to prove that [claimant] made a material misrepresentation
on her employment application” is supported by the evidence.
Employer’s contention that the instant claim is also barred
because claimant did not provide proper notice of her work-related
injury is, likewise, without merit. It is deemed sufficient
notice “where a foreman or superior officer had actual knowledge
of the occurrence of an accident or death within a reasonable time
after the accident or death occurred and no prejudice to the
employer’s rights was shown.” Kane Plumbing, Inc. v. Small, 7
Va. App. 132, 138, 371 S.E.2d 828, 832 (1988) (citation
omitted). Claimant’s “job foreman” observed her “fall . . . on
her back side . . . [and] asked her several times . . . if she
felt like she needed . . . medical attention.” Although
claimant then responded that “she was fine” and postponed actual
notification of her injury to employer, employer had knowledge
of the accident, and the commission correctly concluded that no
prejudice resulted from delayed reporting.
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Employer next argues that claimant failed to sustain her
burden of proof that the injury was causally connected to a
work-related accident. “The actual determination of causation
is a factual finding that will not be disturbed on appeal if
there is credible evidence to support the finding.”
Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d
814, 817 (1989). “A finding that a pre-existing condition was
accelerated or aggravated by an injury sustained in an
industrial accident establishes a causal connection between the
injury and the disability and the disability resulting therefrom
is compensable under the Workers’ Compensation Act.” Corning,
Inc. v. Testerman, 25 Va. App. 332, 340, 488 S.E.2d 642, 645
(1997) (citations and internal quotations omitted). “The fact
that contrary evidence may appear in the record is of no
consequence,” provided the commission’s finding is supported by
credible evidence. Id. at 341, 488 S.E.2d at 646 (citation
omitted).
On June 9, 1996 Dr. Grasinger, claimant’s treating
physician, wrote, “it is possible that [her fall] may have
aggravated her underlying degenerative disc disease which had
pre-existed that injury. I have no way of being certain or even
probable, however, that this caused her present problem.
Certainly it could have contributed to her discomfort.”
However, after “[r]eviewing all of the final studies and
determinations,” Dr. Grasinger concluded on August 12, 1996
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“that [claimant’s] accident of August 28, 1995, aggravated her
pre-existing lumbar disc disease and, in my opinion, it is more
likely than not, and therefore medically probable, that this
accident had a direct causal relationship in her diminished
functional capacity which remains.” Such evidence, together
with other circumstances established in the record, provided
sufficient support to the finding that the accident resulted in
claimant’s injuries.
Lastly, employer complains that the commission erroneously
determined that claimant exercised reasonable efforts to market
her residual capacity. It is well settled that a disabled
employee is required “to make a ‘reasonable effort’ to market
his remaining work capacity in order to receive continued
workers’ compensation benefits.” National Linen Serv. v.
McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989)
(citations omitted). “[W]hat is reasonable in a given case will
depend upon all the facts and circumstances,” id. at 270-71, 380
S.E.2d at 33, viewed most favorably to the prevailing party,
including:
(1) the nature and extent of employee’s
disability; (2) the employee’s training,
age, experience, and education; (3) the
nature and extent of employee’s job search;
(4) the employee’s intent in conducting
[her] job search; (5) the availability of
jobs in the area suitable for the employee,
considering [her] disability; and (6) any
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other matter affecting employee’s capacity
to find suitable employment.
Id. at 272, 380 S.E.2d at 34 (citations and footnotes omitted).
Here, claimant described her job search undertaken after
released to light duty by Dr. Grasinger. Her efforts embraced
routine searches of local classified ads and contacts with
thirty-four potential employers. Such evidence supports the
commission’s conclusion that claimant “sufficiently marketed her
residual capacity.”
Accordingly, we affirm the award.
Affirmed.
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Basic Construction Company v. Hamilton
Combined Opinion