                    COURT OF APPEALS OF VIRGINIA


Present:    Judges Benton, Coleman and Willis


LILLY TRUCKING OF VIRGINIA, INC.
AND
HARTFORD UNDERWRITERS INSURANCE COMPANY
                                                MEMORANDUM OPINION *
v.   Record No. 0106-95-4                           PER CURIAM
                                                   MAY 23, 1995
CURTIS R. HALEY


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
             (Dawn E. Boyce; Trichilo, Bancroft, McGavin, Horvath &
             Judkins, on briefs), for appellants.

             (Robert B. Patterson, on brief), for appellee.



     Lilly Trucking of Virginia, Inc. and its insurer

(hereinafter collectively referred to as "employer") contend that

the Workers' Compensation Commission erred in finding that

(1) Curtis Haley's misrepresentations on his employment

application did not bar his claim for compensation benefits; and

(2) Haley was totally disabled since his August 25, 1992,

compensable injury by accident.   Upon reviewing the record and

the briefs of the parties, we conclude that this appeal is

without merit.    Accordingly, we summarily affirm the commission's

decision.   Rule 5A:27.

     On appellate review, we construe the evidence in the light

most favorable to the prevailing party below.      R.G. Moore Bldg.
Corp. v. Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1990).    When so viewed, the evidence proved that Haley sustained

an injury by accident on August 25, 1992, when a binder struck

his head, nose, and left eye.    Haley suffered severe injuries,

including several head fractures.      Shortly after his

August 25, 1992, accident, Haley developed headaches and

seizures.    He also developed problems with his eyesight.     The

employer voluntarily paid temporary total disability benefits to

Haley until October 1993.    Due to the employer's termination of

benefits, Haley filed an application for benefits with the

commission on November 3, 1993.

                        Employment Application

        The employment application that Haley filed with the

employer on July 6, 1992, indicated that Haley had no physical

limitations and was physically capable of performing heavy manual

work.    However, at the hearing Haley admitted that he injured his

back in a September 3, 1990, accident.     On September 3, 1992, a

Motion for Judgment was filed on Haley's behalf seeking damages

for the 1990 accident.    This pleading alleged that Haley

sustained a broken back and permanent disability due to a

September 3, 1990, accident.    Haley testified that he had never

seen this pleading and he denied that he suffered a broken back

as a result of that accident.    Sharon Lilly, employer's

secretary/treasurer, testified that Haley would not have been

hired if the employer had known of Haley's back condition and

related lawsuit.    She stated that the employer's drivers were



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required to engage in heavy manual work.   Lilly testified,

however, that during Haley's employment, no complaints were made

concerning his ability to perform his work and he was not

reprimanded concerning his work performance.

     In rejecting the employer's misrepresentation defense, the

commission found as follows:
          [T]he uncontradicted testimony of Ms. Lilly
          establishes the employer relied on the
          representation. However, the evidence does
          not show this reliance resulted in the injury
          or that there is a causal relationship
          between the asserted misrepresentation and
          the injury. There is no evidence
          establishing that some infirmity, limitation
          or injury of [Haley's] back hindered him in
          securing the load or otherwise caused his
          industrial accident.

     This Court has held:
          A false misrepresentation 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).   See also Bean v.

Hungerford Mechanical Corp., 16 Va. App. 183, 186, 428 S.E.2d

762, 764 (1993); Grimes v. Shenandoah Valley Press, 12 Va. App.

665, 667, 406 S.E.2d 407, 409 (1991).

     No evidence proved the existence of a causal relationship


                                3
between Haley's August 25, 1992, injuries and his representation

on the employment application that he was not under any physical

limitations.   Although the evidence showed that Haley sustained a

back injury that he failed to disclose on his employment

application, no evidence causally related Haley's back condition

to the August 25, 1992, industrial accident.

     The employer's further contention that Haley's failure to

obtain a DOT physical barred his recovery of compensation

benefits is without merit.   The evidence showed that Haley had

fifteen days from August 24, 1992, within which to obtain the

physical.   Accordingly, the commission did not err in rejecting

the employer's misrepresentation defense.

                             Disability

     In ruling that Haley was totally disabled since

August 25, 1992, the commission found as follows:
               The Deputy Commissioner found that
          [Haley] had remained totally disabled since
          the August 25, 1992 accident. We agree. The
          fact that he drives during short trips around
          town and engages in light tasks does not
          establish he is able to perform work at any
          level on a regular basis. We note, as did
          the Deputy Commissioner, that the medical
          record is not comprehensive on the issue of
          [Haley's] work capacity. The only specific
          report is from Dr. Shuping, who opined in
          early 1994 that [Haley] cannot drive for at
          least another year. Considering Dr.
          Shuping's report, [Haley's] ongoing headaches
          and seizures stemming from serious head
          trauma, and the lack of medical evidence to
          the contrary, we find the record supports the
          Deputy Commissioner's decision.


     Factual findings made by the commission will be upheld on


                                 4
appeal if supported by credible evidence.   James v. Capitol Steel

Constr. Co., 8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989).

Haley's testimony and Dr. Shuping's reports constitute credible

evidence to support the commission's finding.   Accordingly, the

commission did not err in ruling that Haley remained totally

disabled since his August 25, 1992, industrial accident.

     For the reasons stated, we affirm the commission's decision.

     Affirmed.




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