COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fe lton, Judges Frank and Powell Argued at Chesapeake, Virginia

TRANSIT MANAGEMENT COMPANY AND TRANSPORTATION DI STRICT COMMISSION OF HAMPTON ROADS MEMORANDUM OPINION * BY v. Record No. 0463-09-1 JUDGE ROBERT P. FRANK SEPTEMBER 29, 2009 CYNTHIA MATTHEWS WILLIAMS

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Robert L. Samuel, Jr . (Williams Mull en, on brief), for appellants. No brief or argument for appellee.
Transit Management Company (employer) a nd Transportation District Commission of Hampton Roads (self-insurer), appellants, appeal the decision of the Workers’ Compensation Commission (commission), finding in sufficient proof of construc tive fraud. The commission reinstated a prior award of temporary total di sability compensation to Cynthia M. Williams (claimant), appellee. Appellants contend the co mmission erred in finding th e evidence failed to support the deputy commissioner’s determina tion that a February 21, 2007 award of compensation should be terminated on the basis of fraud or mistake. For the reasons stated, we affirm.

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - BACKGROUND “On appeal, we view the evidence in the lig ht most favorable to the prevailing party before the commission.” Central Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 269, 590 S.E.2d 631, 634 (2004). So viewed, the evidence was as follows. On December 27, 2000, claimant suffered a comp ensable injury to her right knee. She was awarded medical benefits and compensation for various periods of temporary total disability ending November 19, 2003. Claimant filed a cl aim for benefits on November 18, 2005, alleging a change of condition. On April 3, 2006, Deputy Commissioner Lahne presided over a hearing pursuant to claimant’s claim for an award of total te mporary disability from October 12, 2005 and continuing. Employer contended that any disability caused by the work injury was not the cause of claimant’s current inability to work and that claimant voluntarily resigned from her employer-provided light-duty employment in Apr il 2004. Claimant testified that she had been released to work. The deputy commissioner rule d that claimant had not fully marketed her residual capacity and denied her claim for benefits. Claimant requested a review by the full commission. On February 21, 2007, the commission issued an opinion finding that claimant had sufficiently and adequately marketed her residu al capacity and awarding claimant compensation for temporary total disability dating from October 12, 2005. On July 16, 2007, appellants applied for a hearing to terminate the commission’s February 21, 2007 award of compensation to claima nt. The basis for appellants’ application was that medical records reflected that claimant ha d been totally disabled since March 5, 2004 as a result of a condition unrelated to her Decembe r 27, 2000 work injury to her right knee. Appellants later amended their application to alle ge claimant’s unjustifie d refusal of selective employment and constructive fraud.- 3 - Deputy Commissioner Lahne conducted a he aring on March 12, 2008. At that hearing, claimant testified she had been totally disa bled since March 2005. On May 2, 2008, the deputy commissioner issued an opini on concluding that during a hear ing before the commission on April 3, 2006, claimant either intentionally misled or negligently misrepresented that she had been released by Dr. Arthur Wardell to return to work, when in fact Dr. Wardell had not released claimant and considered her to be fully disabled due to an unrelated lower back condition. The deputy commissioner terminated the comm ission’s February 1, 2007 award as void ab initio

. On May 22, 2008, claimant requested a review of the deputy commissi oner’s decision. The commission issued its opinion on February 12, 2009. The commission reversed the deputy commissioner and reinstated the payment of wa ge loss benefits to claimant. The commission ruled that claimant did not commit constructive fraud, stating: At the previous hearing, the em ployer defended on the ground that the claimant could not have marketed because she was totally disabled as a result of her back condition and that Dr. Wardell had not released her to work. The cl aimant has consistently supplied information about her treatment with Dr. Wardell for her non-work-related conditions and did not conceal this treatment. Moreover, the record reflects that the employer subpoenaed Dr. Wardell’s records prior to th e earlier hearing, which refer to the Social Services form. Additionally, the claimant testified to her belief that Dr. Wardell had released her to some work. This belief correlated to the Social Services form, which is more confusing than informative. Dr. Wardell marked that the claimant was unable to work, yet simultaneously advised that he did not recommend that she quit her job or apply for disability benefits . To the contrary, Dr. Wardell stated that the claimant could driv e, climb steps, type, handle small objects, lift less than five pounds, a nd sit or stand for one hour at a time. These restrictions mirro r those issued by the Sports Medicine and Orthopaedic Center, In c. that treated the claimant’s work-related knee injury. Additionally, none of her restrictions was inconsistent with the receptionist jobs which the claimant was seeking, and that the Commission pr eviously found to constitute adequate marketing.The Deputy Commissioner acknowledge d in his first decision that the record did not contain a stat ement from Dr. Wardell that the claimant was able to work or c ould not work. Given all of these facts, we are hard-pressed to find that the ambiguous Social Services form and its relationship to the first proceed ing is proof of fraud to render the previous award void ab initio

. This appeal follows.
STANDARD OF REVIEW Our standard of review in this case is we ll settled. On appeal from a decision of the Workers’ Compensation Commission, “we view the ev idence in the light mo st favorable to the party prevailing below” and grant that party the benefit of all r easonable inferences. Tomes v. James City (County of) Fire , 39 Va. App. 424, 429-30, 573 S.E.2d 312, 315 (2002); see also Grayson (County of) Sch. Bd. v. Cornett , 39 Va. App. 279, 281, 572 S.E.2d 505, 506 (2002). “By statute, the commission’s factual findings are conclusive and binding on this Court when those findings are based on credible evidence.” City of Waynesboro v. Griffin , 51 Va. App. 308, 312, 657 S.E.2d 782, 784 (2008) (citing K & K Repairs & Const. v. Endicott , 47 Va. App. 1, 6, 622 S.E.2d 227, 230 (2005) (citing Code § 65.2-706)). “An allegation of fraud . . . presents an issue of fact, not a question of law.” Stockbridge v. Gemini Air Cargo, Inc. , 269 Va. 609, 617, 611 S.E.2d 600, 604 (2005). Furthermore, the existence of “contrary evidence . . . in the record is of no consequence if credible evidence supports the commission’s finding.” Manassas Ice & Fuel Co. v. Farrar , 13 Va. App. 227, 229, 409 S.E.2d 824, 826 (1991). We are instead “bound by these findings of fact as long as ‘there was credible eviden ce presented such that a reasonable mind could conclude that the fact in issue was proved.’” Perry v. Delisle , 46 Va. App. 57, 67, 615 S.E.2d 494, 497 (2005) (quoting Westmoreland Coal Co. v. Campbell , 7 Va. App. 217, 222, 372 S.E.2d 411, 415 (1988)) (emphasis in original). We defer on app eal to the assessment of the “probative weight” of the proffered evidence, and we recognize that the commission “is free to adopt that view - 4 -- 5 - ‘which is most consistent with reason and justice.’” Georgia-Pac. Corp. v. Robinson , 32 Va. App. 1, 5, 526 S.E.2d 267, 269 (2000) (quoting C.D.S. Const. Servs. v. Petrock , 218 Va. 1064, 1070, 243 S.E.2d 236, 240 (1978)). Finally, we note that if the deputy commissioner’s credibility determination is based not on the appearance and demeanor of the witness, bu t on the substance of th e testimony, then such a finding is as determinable by th e full commission as by the deputy. Goodyear Tire & Rubber Co. v. Pierce , 5 Va. App. 374, 383, 363 S.E.2d 433, 438 (1987); see also Code § 65.2-705.
ANALYSIS In this case, in making its ruling to reinstat e benefits to claimant, the commission referred to the Social Services form, in which Dr. Warde ll indicated that claimant was unable to work, yet at the same time advised claimant not to quit her job nor apply for disability benefits. The commission found that these remark s contradict each other at wo rst and are ambiguous at best. Dr. Wardell also imposed a number of restrict ions on claimant. According to the commission, these restrictions are not inconsistent with the jobs for which claimant had applied, and which the commission had previously found to constitute adequate marketing of claimant’s residual capacity. The commission also noted that employer subpoe naed Dr. Wardell’s records prior to the April 3, 2006 hearing and that the re cords referred to the relevant So cial Services form. In fact, at that hearing, employer used claimant’s total di sability from her back injury as its basis to argue that she had not adequately marketed he r residual capacity. Empl oyer was aware at that time that Dr. Wardell had not releas ed claimant to return to work. Moreover, claimant’s own testimony provided notice to appellants that Dr. Wardell had given her conflicting information. On April 3, 2006, claimant testified that Dr. Wardell released her to go back to work sometime after April 12, 2004. Claimant could not recall if she received- 6 - this information verbally or in writing. She also testified that Dr. Wardell had on different occasions told her she was totally disabled from be ing able to work because of her back injury. The deputy commissioner had te stimony before him on April 3, 2006 both that claimant was released to go back to work and that she was totally disabled. While claimant testified on April 3, 2006 that she’d been released to work, the ambigui ties in Dr. Wardell’s le tter belie appellants’ contention that claimant misrepresented the fact s. Furthermore, both appellants and the deputy commissioner had access to Dr. Wa rdell’s report at the time of th e April 2006 hearing. We agree with the commission that claimant made no a ttempt to mislead the deputy commissioner. “The elements of a cause of action for c onstructive fraud are ‘a showing by clear and convincing evidence that a false representation of a material fact was made innocently or negligently, and the injured party was dama ged as a result of his reliance upon the misrepresentation.’” Lumbermen’s Underwriting Alliance v. Dave’s Cabinet, Inc. , 258 Va. 377, 381, 520 S.E.2d 362, 365 (1999) (quoting Mortarino v. Consultant Eng’g Servs. , 251 Va. 289, 295, 467 S.E.2d 778, 782 (1996)). Here, claimant did not withhold information, nor did she misrepresent the facts. There is insufficient ev idence that claimant made a false representation or intentionally misled either appellants or the commission. Further, there is no evidence claimant knew, or should have known, of the requirement that she be able to work in order to receive disability benefits. Finally, Dr. Warde ll’s notes were available to the parties and the deputy commissioner at the time of the heari ng on April 3, 2006. Appellants had the same information that claimant had, and they did not detrimentally rely on a misrepresentation or omission. We conclude there was credible ev idence to support the commission’s finding that claimant committed no constructive fraud. We find the commission did not err in reve rsing the deputy commissi oner and reinstating the February 21, 2007 award. The commission did not arbitrarily ignore the findings of the- 7 - deputy commissioner, but rather resolved the issues in favor of claimant. We therefore affirm the decision of the commission. Affirmed.