Falls Church Construct v. Robert C. Laidler ( 1996 )

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.
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
- 2 -
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,
- 3 -
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
- 4 -
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.
- 5 -