Prince William County Service Authority v. Harper ( 1997 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia
PRINCE WILLIAM COUNTY SERVICE AUTHORITY
AND AMERICAN & FOREIGN
INSURANCE COMPANY
OPINION BY
v. Record No. 3100-96-4 JUDGE JAMES W. BENTON, JR.
JULY 8, 1997
LORRAINE HARPER
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Benjamin J. Trichilo (Trichilo, Bancroft,
McGavin, Horvath & Judkins, P.C., on briefs),
for appellants.
Lawrence A. Durkin (John K. Coleman; Slenker,
Brandt, Jennings & Johnson, on brief), for
appellee.
Prince William County Service Authority appeals from a
ruling of the Workers' Compensation Commission granting Lorraine
Harper temporary total disability benefits from May 23, 1995
until July 23, 1995. The Authority argues that Harper is not
entitled to workers' compensation benefits because she obtained
her employment through misrepresentation. For the reasons that
follow, we affirm the commission's award.
I.
The evidence proved that Harper was employed in 1993 by the
Authority as a waste water treatment plant operator. On June 14,
1994, Harper slipped and fell and sustained a compensable injury.
The commission approved the parties' memorandum of agreement and
awarded Harper temporary total disability benefits from June 28,
1994 through July 26, 1994 and from August 11, 1994 through
August 14, 1994.
On February 15, 1995, Harper filed an application for a
change in condition seeking compensation for lost wages for
additional time periods, payment of lifetime medical costs, and
payment of certain medical bills. On February 20, 1995, Harper
was released to light duty work by her doctor. The next day,
Harper resigned from her position at the Authority. Harper
testified that she resigned because she believed that she could
not physically perform her job.
Harper worked for Lane Construction Corporation from March
22, 1995 through May 23, 1995. Although Harper's employment
required little physical activity, her doctor removed her from
work as of May 23, 1995. Harper later moved her residence to
another city and began seeing Dr. Wagner. Dr. Wagner kept Harper
from work until July 24, 1995, when he released her to light
duty.
The evidence also proved that when Harper applied for
employment with the Authority on July 30, 1993, she was required
to complete an application form. The form contained the
following question: "Have you ever been convicted of a law
violation, including moving traffic violations but excluding
offenses committed before your eighteenth birthday which were
finally adjudicated in a Juvenile Court or under a Youth Offender
Law? You may omit traffic violations for which you paid $30 or
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less." In response to that question, Harper indicated, "no."
Above Harper's signature, the form contained the following
attestation: "I hereby certify that this application is a
complete record and that all entries given are true and accurate
to the best of my knowledge. I understand that any attempt to
practice deception or fraud in this application is grounds for
disqualification or dismissal." The evidence proved that less
than a year before Harper filled out the employment application
she had been convicted in Pennsylvania for insurance fraud and
conspiracy to commit insurance fraud. Harper testified that she
"wasn't sure if it was a misdemeanor or [a] felony."
Sherry Boyce, personnel director for the Authority,
testified that the fact that an applicant had a felony conviction
did not make the applicant automatically ineligible for
employment. The Authority's policy required the personnel office
to consider other factors. Thus, Boyce testified that they
"would get the information on the felony, . . . how long ago it
was, what it was, and make a determination from that." However,
Boyce also testified that had Harper's convictions been reported
on her application, Harper would not have been hired by the
Authority. Boyce further testified that Harper is not eligible
to be rehired because of the false response and that Harper would
have been dismissed if the Authority had discovered the
misrepresentation while Harper was still working at the
Authority.
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The deputy commissioner found that on February 21, 1995,
Harper unjustifiably refused light duty work offered by the
employer. Thus, the deputy commissioner denied benefits for the
period of February 21 through March 21, 1995. In ruling on the
employer's defense of misrepresentation, the deputy commissioner
found as follows:
[Harper's] felony conviction would not have
automatically resulted in the [Authority's]
rejection of her employment application. The
falsehood itself did not contribute to the
nature of her injury, which would prevent
benefits as in those cases where a claimant
lied about her physical condition. . . . Her
misrepresentation of her criminal record on
her employment application would prevent her
being rehired by the employer. However,
because she was medically totally disabled
from May 23, 1995 through July 23, 1995, her
disability is due to her original injury, and
not her misrepresentation on the employment
application. For these reasons, temporary
total disability benefits are awarded from
May 23, 1995 through July 23, 1995. The fact
that she is not eligible to be rehired is
found to have no bearing on temporary total
disability benefits when the medical evidence
establishes total disability.
Upon the Authority's request for review, the commission ruled as
follows:
The [Authority] has not proven the
causal relationship between [Harper's] injury
and her misrepresentation. [Harper] did not
misrepresent a prior injury as in McDaniel
nor did her misrepresentation relate to a
qualification for her position as in Richards
and Balboa.
The commission, therefore, affirmed the decision of the deputy
commissioner. This appeal followed.
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II.
Stating the principles involving false representation on an
employment application, this Court has ruled as follows:
[A] false representation on an employment
application will operate to preclude
compensation benefits upon proof by the
employer that: (1) the employee knew that the
representation was false; (2) the employer
relied upon the false []representation; (3)
such reliance resulted in the consequent
injury; and (4) there is a causal
relationship between the injury in question
and the false representation.
Grimes v. Shenandoah Valley Press, 12 Va. App. 665, 667, 406
S.E.2d 407, 409 (1991); see Billy v. Lopez, 17 Va. App. 1, 4, 434
S.E.2d 908, 910 (1993). The employer argues that it adequately
proved a causal relationship between the misrepresentation and
the injury. We disagree.
No evidence in the record proved that the misrepresentation,
that Harper had not committed a crime, was causally related to
Harper's injury. See id. at 5, 434 S.E.2d at 911 ("There is
simply no evidence in the record that . . . [the
misrepresentation, that the employee was a legal alien,] was in
any way related to the consequent injury."); see also Grimes, 12
Va. App. at 668, 406 S.E.2d at 409 ("The fact that an employee
has [made a] misrepresent[ation] in a job application . . . does
not bar recovery where . . . the misrepresentation . . . is not
proved by the employer to be causally connected to the consequent
injury."); cf. McDaniel v. Colonial Mechanical Corp., 3 Va. App.
408, 414, 350 S.E.2d 225, 228 (1986) ("'If material
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misrepresentations as to [the employee's] physical condition are
made by the prospective employee to the prospective employer and
employment is afforded on the basis of misrepresentations to the
detriment of the employer it is only right and just that
compensation benefits be denied.'") (emphasis added) (citation
omitted).
The employer relies on Granados v. Windson Dev. Corp., 24
Va. App. 80, 480 S.E.2d 150 (1997), reh'g en banc granted, ___
Va. App. ___, ___ S.E.2d ___ (1997), for its assertion that it
proved its misrepresentation defense. In Granados, a panel of
this Court stated that a misrepresentation unrelated to the
employee's health or physical condition is causally related if
the employer shows that it "relied on [the] misrepresentation[]
to [its] detriment by . . . employ[ing]" the employee. Id. at
87, 480 S.E.2d at 153. However, unlike in Granados, the
misrepresentation in this case did not relate to a status legally
required for Harper to be eligible for employment in the United
States. Moreover, Harper's representation that she had no
criminal record was not a material fact that formed the basis for
the Authority's decision to hire Harper. Rather, the evidence
proved that under the Authority's policy, an applicant's status
as a convicted felon was not a bar from employment. Boyce, the
employer's personnel director, testified that she would determine
whether to hire the applicant based on "how long ago it was
[committed], [and] what [kind of felony] it was." Boyce's
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testimony that Harper would not have been hired had Harper
answered the question truthfully is not sufficient evidence to
establish a causal connection between the misrepresentation and
the injury. See Grimes, 12 Va. App. at 667-68, 406 S.E.2d at
409. Thus, the narrow exception created in Granados does not
apply.
Accordingly, we hold that the evidence failed to prove a
causal connection between Harper's misrepresentation and her
injury. We affirm the commission's decision.
Affirmed.
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