                     COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Bray and Overton
Argued at Norfolk, Virginia

TIDEWATER EQUIPMENT CORPORATION

v.          Record No. 2516-94-1        MEMORANDUM OPINION * BY
                                        JUDGE RICHARD S. BRAY
DAVID EARL RUSSELL                         OCTOBER 3, 1995

         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

            Susan B. Potter (Henry P. Bouffard; Vandeventer,
            Black, Meredith & Martin, on brief), for appellant.

            William E. Baggs for appellee.


     Tidewater Equipment Corporation (employer) appeals the

decision of the Workers' Compensation Commission (commission)

awarding temporary total disability and medical benefits to David

Earl Russell (claimant).   Employer contends that claimant is

precluded from benefits because he misrepresented his physical

condition to procure employment.   We disagree and affirm the award.

     The parties are fully conversant with the record, and we

recite only those facts necessary to this opinion.

     On appeal, we construe the evidence in the light most

favorable to the party prevailing below, claimant in this instance.
Crisp v. Brown's Tysons Corner Dodge, Inc., 1 Va. App. 503, 504,

339 S.E.2d 916, 916 (1986).   "If there is evidence, or reasonable

inferences can be drawn from the evidence, to support the

Commission's findings, they will not be disturbed on review, even

though there is evidence in the record to support a contrary

finding."    Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App.

     *
      Pursuant to Code § 17-116.010 this opinion is not designated
for publication.
276, 279, 348 S.E.2d 876, 877 (1986) (citations omitted); see Code

§ 65.2-706.   "In determining whether credible evidence exists,"

this Court will not "retry the facts, reweigh the preponderance of

the evidence, or make its own determination of the credibility of

the witnesses."   Wagner Enters., Inc. v. Brooks, 12 Va. App. 890,

894, 407 S.E.2d 32, 35 (1991) (citation omitted).

     It is uncontroverted that claimant suffered a back injury on

September 2, 1993, while working for employer as a "shipfitter."

Claimant had previously injured his back during military service in

1986 and 1988 and was medically discharged on May 1, 1990.    A third

back injury resulted from a work-related accident with another

employer in May, 1991, which required surgical intervention.

Claimant's treating surgeon on that occasion concluded that

claimant had reached maximum medical improvement, ordered a

Functional Capacity Evaluation (FCE), and recommended "retraining"

consistent with the FCE.   The FCE report, dated June 4, 1992, noted

that any "vocation that require[d] heavy lifting or sustained

standing, sitting or walking" was "not . . . feasible" for

claimant.
     On February 26, 1993, claimant applied for the position with

employer.   This work involved lifting up to 75 pounds, "bending,"

and "climbing."   On the related employment application, claimant

disclosed that he had been "operated on," "[r]eceived worker's

[sic] compensation benefits," injured his back, and "[l]ost work

time because of [an] occupational injury."   Elsewhere on the

application, claimant wrote that his "lower back was operated on do



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[sic] to a fall," with attendant "worker's [sic] compensation until

[he] was well.    5/1990 - Release 11/90."   He confirmed that he was

"aware of all job related functions" and was "able to perform" in

the "position."    Claimant later attributed inaccuracies and

omissions in the application to carelessness and oversight and

denied previous knowledge of the FCE.

        William Moore, employer's office manager, testified that

employer was unaware of claimant's 1991 injury until after the

subject accident.    He testified that claimant was hired conditioned

upon the representations that he understood and could perform the

tasks of a shipfitter, and had been medically released to "full"

duty.
        It is well established that
        [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); see Bean v. Hungerford

Mechanical Corp., 16 Va. App. 183, 186, 428 S.E.2d 762, 764 (1993).

Here, however, we do not find that claimant misrepresented his

physical condition as contemplated by McDaniel.     We concur with the

commission that, although the "FCE reflect[ed] lifting, standing,

walking, and sitting restrictions[,] . . . [t]here is insufficient

evidence that . . . claimant's job [with employer] exceeded these



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somewhat vague restrictions."    Moreover, he denied knowledge of

these limitations.

     Claimant's awareness of the "job related functions," and

assurances to employer that he could perform them, also do not

constitute misrepresentations.   As the commission noted, "[b]oth of

these queries call[ed] for a subjective determination by the

[claimant] as to his physical capabilities."   Although claimant may

have considered himself incapable of "heavy labor" in June, 1992,

intervening employment and other circumstances justified a

different assessment at the time of the disputed application to

employer.
     Accordingly, our review of the entire record discloses

sufficient support in the evidence for the commission's finding

that claimant did not misrepresent his physical condition to

employer, and we affirm the decision. 1

                                                    Affirmed.




     1
      Because the deputy commissioner made no "specific, recorded
observation regarding the behavior, demeanor or appearance" of a
witness in relation to an explicit credibility finding, the
commission was not required to "articulate[] a basis for its
different conclusion . . . ." Bullion Hollow Enters., Inc. v.
Lane, 14 Va. App. 725, 728-29, 418 S.E.2d 904, 907 (1992).




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