                     COURT OF APPEALS OF VIRGINIA


Present:   Judges Baker, Elder and Fitzpatrick


PINE RIDGE LANDSCAPING, INC.
AND
HARLEYSVILLE MUTUAL INSURANCE COMPANY          MEMORANDUM OPINION *
                                                   PER CURIAM
v.   Record No. 1386-95-4                       OCTOBER 24, 1995

ERGIL R. SOLORZANO


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
            (Cathie W. Howard; Williams & Pierce, on brief), for
            appellants.

            (Joseph T. Trapeni, Jr.; Trapeni, Romero & Malouf, on
            brief), for appellee.



     Pine Ridge Landscaping Incorporated and its insurer

(hereinafter collectively referred to as "employer") appeal a

decision of the Workers' Compensation Commission (commission)

that denied employer's application to vacate a June 30, 1993

award ("the award") in favor of Ergil R. Solorzano (claimant).

Employer contends that the commission erred in denying its

application on the basis that it failed to prove by clear and

convincing evidence that claimant fraudulently procured the

award.   Finding no error, we affirm the commission's decision.
     The commission has the implied power to vacate an award

where, by clear and convincing evidence, the moving party proves

that the award was procured by fraud or mutual mistake.    Harris
v. Diamond Constr. Co., 184 Va. 711, 721-22, 36 S.E.2d 573, 578
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
(1946).    In this case, the commission held that employer did not

meet its burden of proving fraud or misrepresentation by clear

and convincing evidence.   In so ruling, the commission found as

follows:
            The employer's evidence consists solely of
            Lopez's testimony that he was paid $200 to
            testify for the claimant at the initial
            Hearing, as well as a written statement to
            the same effect. The written statement was
            procured approximately 19 months after
            Lopez's first testimony and under
            circumstances which call into question the
            validity of the statement. He was brought
            into the employer's office after an initial
            conversation in which Cumberland, Jr., spoke
            to him in a raised voice, causing him to be
            afraid. In the office, Shively prepared a
            statement in English which Lopez then
            transcribed into Spanish and signed. We note
            that he speaks only limited English and
            required a translator at both Hearings.
            Lopez testified that, at the time he prepared
            this statement, he was afraid that he might
            be assaulted.

                *     *     *     *     *     *     *
                 In the Hearing held in December 1994, 24
            months after the initial Hearing, Lopez
            testified that he lied at the first Hearing
            and that his written statement and current
            testimony were given of his own free will and
            were truthful. It is clear that he testified
            falsely in one of the Hearings. However, it
            is unclear as to which testimony was
            truthful. The claimant testified that he did
            not pay Lopez to testify for him. No other
            evidence was presented, except for the
            testimony to the effect that Lopez was not
            threatened.


     Unless we can say as a matter of law that employer's

evidence sustained its burden of proving fraud by clear and

convincing evidence, the commission's findings are binding and



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conclusive upon us.     Tomko v. Michael's Plastering Co., 210 Va.

697, 699, 173 S.E.2d 833, 835 (1970).    Based upon the nineteen-

month period between the initial hearing and Lopez's written

statement; the possibility that Lopez was threatened or forced

into giving the statement; Lopez's uncertainty as to exactly what

he lied about at the first hearing; and claimant's denial that he

paid $200 to Lopez, we cannot say as a matter of law that the

commission erred in finding that employer failed to establish

fraud by clear and convincing evidence.
     Furthermore, we find no merit in employer's contention that

the commission erred in rejecting the deputy commissioner's

credibility determination.    The deputy commissioner's finding

that employer proved that claimant fraudulently obtained the

award was based upon the substance of employer's witnesses'

testimony at the December 6, 1994 hearing.    There is nothing in

the deputy commissioner's opinion to indicate that the decision

was based upon demeanor or appearance.    Accordingly, the

credibility issue was as determinable by the full commission as

it was by the deputy.     Goodyear Tire & Rubber Co. v. Pierce, 5

Va. App. 374, 383, 363 S.E.2d 433, 438 (1987); see also Kroger

Co. v. Morris, 14 Va. App. 233, 236, 415 S.E.2d 879, 880-81

(1992).   Moreover, the full commission adequately articulated its

basis for rejecting the deputy commissioner's decision.

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

However, we remand this case for the commission to correct page




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six of its opinion to accurately reflect the date upon which the

award was terminated pursuant to the December 6, 1993 Agreed

Statement of Fact (as referred to in employer's June 13, 1995

letter and the commission's June 28, 1995 letter).

                                    Affirmed and remanded.




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