Opinion
Record No. 0913-93-4
November 9, 1993
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION.
(Walter F. Green, IV; Green and O'Donnell, on brief), for appellant.
(M. Bruce Wallinger; Wharton, Aldhizer Weaver, on brief), for appellees.
Present: Judges Benton, Coleman, and Willis.
Pursuant to Code § 17-116.010 this opinion is not designated for publication.
Juanita Scott contends that the Workers' Compensation Commission erred in ruling that (1) she made a material misrepresentation on her employment application, and (2) her injury did not arise out of her employment. Upon reviewing the record and the briefs of the parties, we conclude that this appeal is without merit. Accordingly, we affirm the commission's decision. Rule 5A:27.
Scott was employed as a poultry processing worker. As a part of her employment application, Scott signed a job placement medical questionnaire in which she responded "no" to the inquiry, "Have you ever had — fainting spells." Scott also responded negatively to the inquiry, "Have you ever had — dizzy spells."
Three months after she was hired, Scott fainted and fell while working the processing line. At the time of her fall, Scott was standing on an elevated platform of an unknown height, removing turkey wings from shackles. She was injured when she hit her head on the concrete floor.
At the evidentiary hearing, Scott admitted having fainted one or two times prior to her employment. The emergency room record gives a history that Scott "[F]aints a lot." In addition, Scott's medical records reveal that she was treated at a hospital in 1991 after she lost consciousness while operating a motor vehicle. Scott's medical records also indicate that she was treated for vertigo, syncope, and dizzy spells at various times in 1982, 1983, 1986, 1988, 1989, 1990, and 1991.
The rule is well established that falsification of an employment application may affect the right to receive workers' compensation benefits.
A false representation as to physical condition or health made by an employee in procuring employment will preclude workers' compensation benefits for an otherwise compensable injury if a causal relationship between the injury and the false representation is shown and if it is also shown that (1) the employee knew the representation to be false, (2) the employer relied upon the false representation, and (3) such reliance resulted in the consequent injury to the employee.
McDaniel v. Colonial Mechanical Corp., 3 Va. App. 408, 411-12, 350 S.E.2d 225, 227 (1986) (citations omitted).
Credible evidence in the record supports the commission's findings that Scott concealed her preexisting physical condition, that the concealment constituted a false representation that the employer relied upon, and that the misrepresentation was directly linked to the injury that Scott suffered. All the other requirements of McDaniel also have been satisfied.
In support of her argument that the commission erred in finding that she misrepresented her physical condition on her employment application, Scott included in her opening brief a medical report from Dr. Jeffrey S. Kreutzer dated December 8, 1992. This report was not in existence when the deputy commissioner rendered his opinion. Moreover, Scott did not attempt to make it part of the record before the commission on review. The inclusion of this report in the brief before this Court was improper because it was not a part of the record on appeal. Accordingly, we will not consider it, and we affirm the commission's decision.
Affirmed.