However, we are also bound by the principle that "where there is `no conflict in the evidence, the question of the sufficiency thereof is one of law.'" Eccon Constr. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981) (quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)). On January 2, 1992, the claimant, a twenty-six year old laborer, injured his lower back and right hip while working for Tidewater Construction Corporation (employer). Employer accepted the claim as compensable, and, on July 28, 1992, the commission entered an award solely for medical benefits for causally-related treatment.
To constitute either type of fraud, an affirmative representation need not have been made, however; fraud may consist of the suppression or omission of that which is true as well as the articulation of that which is false. See 8B Michie's Juris., Fraud and Deceit ยง 15 (1994) (citing, inter alia, City of Norfolk v. Bennett, 205 Va. 877, 140 S.E.2d 655 (Va. 1965)). 2.
Be that as it may, fraud, once properly alleged, must be proved by clear and convincing evidence. City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965). Here, Richard's proof of "fraudulent intent" on Linda's part was woefully lacking.
In a split decision, the full Commission ruled that the evidence "fails to preponderate in establishing that claimant had direct knowledge of the rule or, and more importantly, that it was strictly enforced" and confirmed an award in favor of Kremposky. On appeal, the Commission's findings of fact are "conclusive and binding", Code Sec. 65.1-98, but when there is "no conflict in the evidence, the question of the sufficiency thereof is one of law", City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965), and the same is true when there is no credible evidence to support the Commission's factual findings, Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393, 395 (1962). Accord Eccon Company v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981); Goodyear v. Watson, 219 Va. 830, 833, 252 S.E.2d 310, 312 (1979).
But where there is "no conflict in the evidence, the question of the sufficiency thereof is one of law." City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965). There is no significant conflict in the expert medical opinions of the two doctors who attended Lucas, and "we must inquire to determine if the correct legal conclusion has been reached."
But "[t]he burden of proof is . . . on the party alleging mistake to prove its existence." Norfolk v. Bennett, 205 Va. 877, 880 (1965). Dolsey fails to meet his burden in the context of this case.
When there is "no conflict in the evidence, the question of the sufficiency thereof is one of law." Gwaltney of Smithfield, Ltd. v. Hagins, 32 Va. App. 386, 392, 528 S.E.2d 162, 165 (2000) (quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)); see also Hilton v. Martin, 275 Va. 176, 180, 654 S.E.2d 572, 574 (2008). Thus, we review whether the commission erred in refusing to consider after-discovered evidence de novo, because there is no conflict in the evidence as to the facts establishing the elements of after-discovered evidence.
"When, however, there is 'no conflict in the evidence the question of the sufficiency thereof is one of law.'" Gwaltney of Smithfield, Ltd. & Travelers Indem. Co. v. Hagins, 32 Va. App. 386, 392, 528 S.E.2d 162, 165 (2000) (quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)). "Unlike questions of fact, which are binding on this Court if supported by evidence, we review questions of law de novo."
Where, as here, there is "no conflict in the evidence, the question of the sufficiency thereof is one of law," City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965), and the same is true when there is no credible evidence to support the Commission's factual findings, Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393, 395 (1962).VEPCO v. Kremposky, 227 Va. 265, 269, 315 S.E.2d 231, 233 (1984).
We must inquire to determine if the correct legal conclusion has been reached.'" Cibula v. Allied Fibers Plastics, 14 Va.App. 319, 324, 416 S.E.2d 708, 711 (1992) (quoting City of Norfolk v. Bennett, 205 Va. 877, 880, 140 S.E.2d 655, 657 (1965)), aff'd, 245 Va. 337, 428 S.E.2d 905 (1993). Compensation benefits awarded pursuant to Code ยงยง 65.2-500 and 65.2-502 "cover losses occasioned by the impairment of the claimant's earning capacity" resulting from the claimant's compensable injury. Pilot Freight Carriers, Inc. v. Reeves, 1 Va.App. 435, 441, 339 S.E.2d 570, 573 (1986).