Opinion
Record No. 1269-93-4
November 30, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Elaina Lell; Lewis, Trichilo, Bancroft McGavin, on brief), for appellants.
(Christopher Paul Schewe, on brief), for appellee.
Present: Judges Barrow, Koontz and Bray.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the decision of the Workers' Compensation Commission. Rule 5A:27. As the parties are familiar with the facts of the case, we recite them only as necessary to explain our decision.
Riverside Park Apartments and its insurer (collectively referred to hereinafter as "employer") contend that the commission erred in finding that (1) Earl Osborne (claimant) sustained an injury by accident arising out of and in the course of his employment on February 10, 1992; (2) the evidence did not prove that claimant materially misrepresented his physical condition on his employment application; and (3) the evidence did not support a finding that claimant committed willful misconduct.
I. Injury by Accident
Employer contends that claimant did not sustain an injury by accident because he knew that the back injuries he sustained prior to February 10, 1992 predisposed him to further injury, especially if he worked in a job where he would be required to lift heavy objects. Employer further contends that claimant's injury did not arise out of his employment because it was caused by his failure to follow certain physical limitations imposed upon him by his physician. Finally, employer asserts that claimant's version of the accident was not credible.
On appellate review, we construe the evidence in the light most favorable to the party prevailing below. R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). Factual findings of the commission are binding on appeal if supported by credible evidence. James v. Capitol Steel Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).
The commission found that the medical records did not persuasively show that claimant continued to suffer from the effects of his previous back injuries between October 7, 1991, the date he began work for employer, and February 10, 1992, the date of his accident. In addition, the commission believed claimant's version of how the accident occurred. These findings are supported by credible evidence.
On September 11, 1990, Dr. E. Joy Arpin, neurosurgeon, opined that claimant had reached maximum medical improvement. She returned him to work with no permanent partial impairment. On November 8, 1990, Dr. Steven M. Tucci approved a job description allowing claimant to work as a maintenance man at a motel where he would be required to perform physical labor, including lifting televisions weighing up to fifty pounds. Dr. Tucci's only caveat was that claimant might need assistance lifting the televisions. Claimant was last treated by Dr. Tucci on December 5, 1990.
Between December 5, 1990 and February 1992, claimant's only medical treatment for his back occurred when he was examined on three occasions in August 1991 at a walk-in medical center. Claimant testified that this treatment was for a pulled muscle causing pain in his leg and buttock. There is no medical evidence in the record to demonstrate that claimant required any treatment after August 1991 up until the time of his accident in February 1992. Moreover, there is no evidence that claimant suffered from any back pain or that he ever complained of back problems while working for employer during the four month period prior to February 10, 1992. On March 4, 1992, Dr. Mizra S. Baig reported that claimant had sustained a herniated disc on the right at L5-S1 and suffered from an abnormality at L4-5 on the left.
Based upon claimant's testimony and the medical evidence, we cannot say as a matter of law that the commission erred in finding that the record supported a new injury by accident on February 10, 1992 which caused claimant's subsequent disability.
We note that Dr. Baig's records confirming claimant's disability subsequent to the February 1992 accident and providing evidence of a causal connection are uncontradicted.
Moreover, "'[t]raditional principles dictate, . . . that the determination of a witness' credibility is within the fact finder's exclusive purview. . . .'" Goodyear Tire Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363 S.E.2d 433, 437 (1987) (citation omitted). The deputy commissioner gave numerous reasons for her finding that claimant's version of the accident was credible. The medical histories corroborated claimant's testimony. The full commission affirmed the deputy's finding, which will not be disturbed on appeal.
II. Misrepresentation
A false representation on an employment application bars a claim for compensation benefits "upon proof by the employer that: (1) the employee knew that the representation was false; (2) the employer relied upon the false misrepresentation; (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).
The commission found that claimant did not make a false misrepresentation on his employment application. Credible evidence supports this finding.
On the application, employer asked whether claimant had any physical limitations which might affect his performance. Claimant answered "no" to this question. Claimant and his wife testified that he was not having any problems with his back at the time he submitted the application. This testimony is supported by the absence of medical treatment during the month before claimant's employment; his full-time employment with a construction company immediately before he began work for employer; and his subjective belief that he was capable of carrying out the job duties of a maintenance technician, regardless of his previous back problems. Lastly, claimant did not have any back problems while performing his duties during the four month period leading up to the February 10, 1992 accident.
Accordingly, we cannot say that the commission erred in finding that employer failed to prove that claimant misrepresented his physical condition on the employment application.
III. Willful Misconduct
Employer contends that claimant violated a company policy, because he lifted an air conditioning unit without the assistance of another employee. In finding that employer failed to prove willful misconduct within the meaning of Code § 65.2-306, the commission held that the policy alleged to have been broken was unclear, routinely violated by other employees, and was not brought to claimant's attention prior to the accident except through casual conversations between co-workers. Credible evidence supports these findings.
There was no written policy or prohibition in the employee handbook against lifting air conditioning units without the assistance of another employee. Claimant testified that he was never told of such a policy. Claimant stated that employees moved units by themselves when they could not get in contact with other employees. Claimant's supervisor, Tom Parks, was unable to state with any specificity how he enforced the alleged policy, other than he might give "grief" to an employee who violated it.
Based upon this evidence, we cannot say that the commission erred in finding that the alleged rule was not known to claimant nor enforced by employer. Accordingly, the commission did not err in finding that employer failed to prove willful misconduct.
Additionally, claimant testified that he called another employee to assist him on February 10, 1992, but when no help was forthcoming, he lifted the unit himself in order to complete the job. "Willful misconduct requires something more than mere negligence. '"Willful" . . . imports something more than a mere exercise of the will in doing the act. It imports a wrongful intention.'" Uninsured Employer's Fund v. Keppel, 1 Va. App. 162, 164, 335 S.E.2d 851, 852 (1985) (citation omitted). There is no evidence of a wrongful intention on the part of claimant in deciding to move the unit by himself.
For the reasons stated, we affirm the commission's decision.
Affirmed.