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. 
 2 

(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 
 3 

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 
 4 

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 
 5 

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.