COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata 

Argued at Alexandria, Virginia 

FALLS CHURCH CONSTRUCTION COMPANY 

 AND WEST AMERICAN INSURANCE COMPANY 

 MEMORANDUM OPINION* BY 

v. Record No. 1628-96-3 JUDGE ROSEMARIE ANNUNZIATA 

 DECEMBER 3, 1996 

ROBERT C. LAIDLER 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 

 Benjamin J. Trichilo (Trichilo, Bancroft, 

McGavin, Horvath & Judkins, P.C., on briefs), 

for appellants. 

 Roger A. Ritchie (Roger Ritchie & Partners, 

P.L.C., on brief), for appellee. 

 Employer, Falls Church Construction Company, and insurer, 

West American Insurance Company (together referred to as 

employer), appeal the commission's decision that claimant, Robert 

C. Laidler, did not knowingly misrepresent his criminal status in 

his employment application and that employer did not rely on 

claimant's alleged misrepresentation. For the reasons that 

follow, we affirm. 

 A false representation on a job application precludes 

compensation where the employer proves, inter alia, that (1) the 

employee knowingly made a false representation; and (2) the 

employer relied on the false representation and, thereby, 

provided the employment from which the injury in question 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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results. See, e.g., Grimes v. Shenandoah Valley Press, 12 Va. 

App. 665, 667, 406 S.E.2d 407, 409 (1991). On review, we 

construe the evidence in the light most favorable to the party 

prevailing below and will uphold the commission's findings of 

fact if credible evidence supports them. Id. In the present 

case, we find that the evidence fails to support the commission's 

finding that claimant did not misrepresent his criminal status. 

However, we find that the record supports the commission's 

finding that employer did not rely on the misrepresentation and, 

therefore, affirm. 

 In June 1992, claimant completed a job application 

responding, inter alia, that he had never been "charged or 

convicted of a felony or any crime." Claimant signed the 

application, thereby warranting that his answers were "complete 

and true, with the understanding that . . . false answers or 

concealment of material information shall be grounds for 

discharge." Claimant worked from June 2, 1992 until July 27, 

1992, when employer terminated him because of absenteeism. 

 In May 1993, employer rehired claimant. Pursuant to company 

policy, claimant submitted another, identical job application. 

On the second application, claimant failed to respond, inter 

alia, to the question concerning his prior criminal record. 

Rather than having claimant complete the second application, 

employer's human resources representative, Beverly Spalding, 

referred to the information claimant had provided in his initial 
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application. Spalding assumed claimant's answer concerning his 

prior criminal offenses remained the same, reasoning that 

claimant had verified his current answers to be "complete and 

true" with the knowledge that concealment of material information 

was grounds for discharge. Spalding also noted that the answers 

which claimant had provided remained unchanged. 

 In July 1993, claimant suffered a compensable injury by 

accident. Pursuant to agreement by the parties, the commission 

entered an award of temporary total disability benefits for two 

periods during the Summer and Fall of 1993. Subsequently, 

claimant filed a claim for benefits, seeking reinstatement of 

temporary total disability benefits. In the Spring of 1994, 

claimant responded to employer's interrogatories, stating that he 

had been convicted of breaking and entering in 1978 and had 

served two years of probation. Employer defended the claim for 

benefits on the ground that claimant had made a material 

misrepresentation on his job application with respect to his 

prior criminal record. 

 A hearing was conducted in January 1995 at which Spalding 

testified concerning employer's hiring policy. She stated that, 

because employer often worked on government projects, it wanted 

to know the criminal records of its employees and to be informed 

truthfully of the information requested in the application. 

Spalding testified that employer would not have hired claimant 

had he represented his criminal record completely and truthfully, 
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and that employer would have fired claimant had it learned the 

truth while claimant was still employed. Claimant admitted that 

the representation on the initial application was, in fact, 

untrue. However, he testified that the charge against him had 

been reduced to unlawful entry and that he thought the offense 

was a misdemeanor at the time he completed the application. 

 The commission found claimant had misrepresented his 

criminal status on the initial application. However, it found 

that claimant made no misrepresentation on the second 

application, because he made no representation at all. 

Furthermore, the commission found employer did not rely on the 

alleged misinformation because it failed to have claimant 

complete the application. 

 There is no dispute that claimant affirmatively 

misrepresented his criminal status in his initial application. 

On his second application, claimant failed to answer the question 

concerning his criminal record. However, claimant signed the 

application, verifying that it was "complete and true" and 

knowing that concealment of material information was grounds for 

discharge. The commission's finding that "claimant made no 

misrepresentation on [the] second application regarding his 

criminal status, because he made no representation at all," is a 

clear misstatement of the law. See, e.g., Metrocall of Delaware 

v. Continental Cellular, 246 Va. 365, 374, 437 S.E.2d 189, 193 

(1993) ("Concealment of a fact that is material to the 
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transaction, knowing that the other party is acting on the 

assumption that no such fact exists, is as much fraud as if 

existence of the fact were expressly denied"). We find that the 

evidence in its entirety compels the conclusion that claimant 

knowingly misrepresented the truth about his criminal status on 

the second application. 

 However, the record supports the commission's finding that 

employer failed to rely on claimant's misrepresentation. We will 

not disturb the commission's implicit credibility finding that 

the testimony of employer's witness, stating that employer relied 

on the absence of an affirmative response to the question 

concerning criminal status in hiring claimant, was unbelievable. 

 Moreover, employer's acts support the commission's finding. The 

two applications were filled out nearly a year apart. Employer's 

reliance on claimant's answers on his first application to fill 

in the blanks he left on the second application provided employer 

no information concerning events which may have transpired since 

claimant completed the first application. Employer's failure to 

have claimant fill in that gap supports the commission's finding 

that it did not rely on the absence of information in hiring 

claimant. 

 Accordingly, the decision of the commission is affirmed. 

Affirmed.