                   COURT OF APPEALS OF VIRGINIA


Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia


BASIC CONSTRUCTION COMPANY AND
 FARMINGTON CASUALTY COMPANY/
 TRAVELERS PROPERTY CASUALTY COMPANY
                                          MEMORANDUM OPINION * BY
v.   Record No. 2844-98-1                  JUDGE RICHARD S. BRAY
                                              AUGUST 17, 1999
DEBBIE HAMILTON

         FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

           Francis G. Marrin (Law Office of Roger S.
           Mackey, on brief), for appellants.

           John H. Klein (Montagna, Klein & Camden,
           L.L.P., on brief), for appellee.


     Basic Construction Company and Travelers Property Casualty

Company (collectively employer) appeal a decision of the

Workers’ Compensation Commission (commission) awarding benefits

under the Workers’ Compensation Act (Act) to Debbie Hamilton

(claimant).   Employer complains that the commission erroneously

(1) awarded claimant benefits after the deputy commissioner had

denied relief and claimant had made no timely request for

review, (2) determined that the claim was not barred by material

misrepresentations when seeking the employment, (3) found that

the injury resulted from a work-related accident, and (4)

concluded that claimant made a reasonable effort to market her

     *
       Pursuant to Code § 17.1-413, recodifying Code
§ 17-116.010, this opinion is not designated for publication.
residual capacity.    Finding no error, we affirm the commission’s

award.

     The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.    On appeal, we view the evidence in

the light most favorable to the party prevailing below, claimant

in this instance.    See Crisp v. Brown’s Tysons Corner Dodge, Inc.,

1 Va. App. 503, 504, 339 S.E.2d 916, 916 (1986).    Factual findings

by the commission that are supported by credible evidence are

conclusive and binding upon this Court on appeal.   See Rose v.

Red’s Hitch & Trailer Servs., 11 Va. App. 55, 60, 396 S.E.2d 392,

395 (1990).

                                  I.

     On February 12, 1996, claimant lodged a claim with the

commission seeking benefits pursuant to the Act for certain

accidental injuries she suffered on August 28, 1995.   A hearing

was conducted by Deputy Commissioner Wilder on April 11, 1997,

and, in defense of the application, employer asserted that (1)

claimant had misrepresented material facts on her employment

application, (2) her injuries were not occasioned by a

work-related accident, (3) she had failed to provide proper notice

of the alleged incident, and (4) she had not marketed her residual

capacity.   By opinion dated May 16, 1996, the deputy found that

claimant had neither materially misrepresented her physical

condition nor failed to report the accident to the prejudice of

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employer, but, nevertheless, denied the claim, concluding that

claimant had not established that the accident “caused her injury

or disability.”

     By letter dated May 20, 1997, claimant requested the deputy

to reconsider, “taking specific note” of correspondence in

evidence from her treating physician, Dr. Grasinger.   In response,

the deputy wrote both parties on June 2, 1997:

          I have received [claimant’s counsel’s] May
          20, 1997 request for reconsideration. In
          order to give the parties some certainty
          regarding time limitations for review
          requests, I am granting the request to
          reconsider my May 16, 1997 Opinion; however,
          I cannot yet rule on the merits of the claim
          because the file has been returned to
          Richmond. I have requested the file and will
          issue a ruling on the merits as soon as I
          have an opportunity to review the evidence.

After further review, the deputy resolved all issues in favor of

claimant and awarded benefits by opinion issued May 20, 1998.

     Employer requested review of the decision by the full

commission, moving for enforcement of the deputy’s original

opinion and otherwise challenging the award.   Employer contended

that, when the deputy did not vacate his earlier ruling within

twenty days, it became final pursuant to Code §§ 65.2-705,

65.2-706 and Commission Rule 3.1, thereby divesting him of

jurisdiction to re-decide the claim by the May 20, 1998 opinion.

In the alternative, employer asserted the defenses previously

considered by the deputy.   The commission concluded that the

“Deputy Commissioner’s June 2, 1997, letter issued within twenty

                               - 3 -
days, vacated the original opinion” and affirmed the decision of

May 20, 1998, resulting in the instant appeal by employer.

                                  II.

     Employer acknowledges on brief that “[t]he Deputy

Commissioner who has rendered an initial ruling retains

jurisdiction over the claim for twenty (20) days” and “may vacate

or amend [the] original opinion” within such period.    See Code

§ 65.2-705(A); Rule 3.1, Rules of the Workers’ Compensation

Commission.   However, employer contends that the deputy’s June 2,

1997 response to claimant’s motion to reconsider neither vacated

nor amended the original decision, resulting in finality after the

expiration of twenty days.   See Code § 65.2-706.   Employer’s

argument overlooks the deference accorded to the commission’s

interpretation of its orders.

     “[I]t is within the commission’s discretion to . . . examine

the [order] of the deputy commissioner . . . to ascertain the

result intended,” and we will not disturb the commission’s

determination unless “arbitrary or capricious.”     Rusty’s Welding

Service, Inc. v. Gibson, 29 Va. App. 119, 130, 510 S.E.2d 255,

260-61 (1999) (en banc).   The commission determined that the

deputy’s correspondence to counsel, “granting the request to

reconsider [the earlier] opinion” and promising to “issue a ruling

on the merits” after further “review of the evidence,” “in effect,

vacated the original opinion.”    The commission, therefore, decided

that the deputy “had jurisdiction to issue the May 20, 1998,

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opinion.”   Our review of the record discloses ample support for

the commission’s interpretation of the deputy’s initial

disposition of claimant’s request, and we decline to disturb it on

appeal.

     Employer next asserts that claimant is barred from benefits

because she misrepresented her physical capacity by not responding

to the inquiry, “Do you know of, or have you any physical

disability that could or would hinder or limit your activity while

working in your trade?” which appeared on her employment

application.   Claimant testified that she “really overlooked” the

question in issue, but would have “marked no” in response because,

“[i]n [her] opinion, the three surgeries [she] had on [her] back

. . . would [not] act as a limiting factor on what [she] could do

as a laborer.”   We recognize that

            [a]n employee’s false representation in an
            employment application will bar a later claim
            for workers’ compensation benefits if the
            employer proves that 1) the employee
            intentionally made a material false
            misrepresentation; 2) the employer relied on
            that misrepresentation; 3) the employer’s
            reliance resulted in the consequent injury;
            and 4) there is a causal relationship between
            the injury in question and the
            misrepresentation.

Falls Church Const. Co. v. Laidler, 254 Va. 474, 477-78, 493

S.E.2d 521, 523 (1997) (citations omitted).

     “The concealment of a material fact on an employment

application constitutes the same misrepresentation as if the



                                - 5 -
existence of the fact were expressly denied.”    Id. (citations

omitted).

     However, the instant record discloses that claimant was under

no work restrictions at the time of her employment and did not

subsequently seek related medical care until after the August 28,

1995 injury.   No evidence otherwise suggests that she

intentionally misrepresented her physical condition to employer.

Under such circumstances, the commission’s finding that “employer

failed to prove that [claimant] made a material misrepresentation

on her employment application” is supported by the evidence.

     Employer’s contention that the instant claim is also barred

because claimant did not provide proper notice of her work-related

injury is, likewise, without merit.     It is deemed sufficient

notice “where a foreman or superior officer had actual knowledge

of the occurrence of an accident or death within a reasonable time

after the accident or death occurred and no prejudice to the

employer’s rights was shown.”   Kane Plumbing, Inc. v. Small, 7

Va. App. 132, 138, 371 S.E.2d 828, 832 (1988) (citation

omitted).   Claimant’s “job foreman” observed her “fall . . . on

her back side . . . [and] asked her several times . . . if she

felt like she needed . . . medical attention.”      Although

claimant then responded that “she was fine” and postponed actual

notification of her injury to employer, employer had knowledge

of the accident, and the commission correctly concluded that no

prejudice resulted from delayed reporting.

                                - 6 -
     Employer next argues that claimant failed to sustain her

burden of proof that the injury was causally connected to a

work-related accident.   “The actual determination of causation

is a factual finding that will not be disturbed on appeal if

there is credible evidence to support the finding.”

Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376 S.E.2d

814, 817 (1989).   “A finding that a pre-existing condition was

accelerated or aggravated by an injury sustained in an

industrial accident establishes a causal connection between the

injury and the disability and the disability resulting therefrom

is compensable under the Workers’ Compensation Act.”     Corning,

Inc. v. Testerman, 25 Va. App. 332, 340, 488 S.E.2d 642, 645

(1997) (citations and internal quotations omitted).    “The fact

that contrary evidence may appear in the record is of no

consequence,” provided the commission’s finding is supported by

credible evidence.   Id. at 341, 488 S.E.2d at 646 (citation

omitted).

     On June 9, 1996 Dr. Grasinger, claimant’s treating

physician, wrote, “it is possible that [her fall] may have

aggravated her underlying degenerative disc disease which had

pre-existed that injury.   I have no way of being certain or even

probable, however, that this caused her present problem.

Certainly it could have contributed to her discomfort.”

However, after “[r]eviewing all of the final studies and

determinations,” Dr. Grasinger concluded on August 12, 1996

                               - 7 -
“that [claimant’s] accident of August 28, 1995, aggravated her

pre-existing lumbar disc disease and, in my opinion, it is more

likely than not, and therefore medically probable, that this

accident had a direct causal relationship in her diminished

functional capacity which remains.”      Such evidence, together

with other circumstances established in the record, provided

sufficient support to the finding that the accident resulted in

claimant’s injuries.

     Lastly, employer complains that the commission erroneously

determined that claimant exercised reasonable efforts to market

her residual capacity.    It is well settled that a disabled

employee is required “to make a ‘reasonable effort’ to market

his remaining work capacity in order to receive continued

workers’ compensation benefits.”     National Linen Serv. v.

McGuinn, 8 Va. App. 267, 269, 380 S.E.2d 31, 33 (1989)

(citations omitted).    “[W]hat is reasonable in a given case will

depend upon all the facts and circumstances,” id. at 270-71, 380

S.E.2d at 33, viewed most favorably to the prevailing party,

including:

             (1) the nature and extent of employee’s
             disability; (2) the employee’s training,
             age, experience, and education; (3) the
             nature and extent of employee’s job search;
             (4) the employee’s intent in conducting
             [her] job search; (5) the availability of
             jobs in the area suitable for the employee,
             considering [her] disability; and (6) any




                                 - 8 -
          other matter affecting employee’s capacity
          to find suitable employment.

Id. at 272, 380 S.E.2d at 34 (citations and footnotes omitted).

     Here, claimant described her job search undertaken after

released to light duty by Dr. Grasinger.   Her efforts embraced

routine searches of local classified ads and contacts with

thirty-four potential employers.   Such evidence supports the

commission’s conclusion that claimant “sufficiently marketed her

residual capacity.”

     Accordingly, we affirm the award.

                                                        Affirmed.




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