                   COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Elder and Overton
Argued at Richmond, Virginia


PRINCE WILLIAM COUNTY SERVICE AUTHORITY
 AND AMERICAN & FOREIGN
 INSURANCE COMPANY
                                             OPINION BY
v.   Record No. 3100-96-4            JUDGE JAMES W. BENTON, JR.
                                            JULY 8, 1997
LORRAINE HARPER


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
           Benjamin J. Trichilo (Trichilo, Bancroft,
           McGavin, Horvath & Judkins, P.C., on briefs),
           for appellants.

           Lawrence A. Durkin (John K. Coleman; Slenker,
           Brandt, Jennings & Johnson, on brief), for
           appellee.



      Prince William County Service Authority appeals from a

ruling of the Workers' Compensation Commission granting Lorraine

Harper temporary total disability benefits from May 23, 1995

until July 23, 1995.   The Authority argues that Harper is not

entitled to workers' compensation benefits because she obtained

her employment through misrepresentation.    For the reasons that

follow, we affirm the commission's award.

                                I.

      The evidence proved that Harper was employed in 1993 by the

Authority as a waste water treatment plant operator.    On June 14,

1994, Harper slipped and fell and sustained a compensable injury.

The commission approved the parties' memorandum of agreement and

awarded Harper temporary total disability benefits from June 28,
1994 through July 26, 1994 and from August 11, 1994 through

August 14, 1994.

        On February 15, 1995, Harper filed an application for a

change in condition seeking compensation for lost wages for

additional time periods, payment of lifetime medical costs, and

payment of certain medical bills.    On February 20, 1995, Harper

was released to light duty work by her doctor.    The next day,

Harper resigned from her position at the Authority.    Harper

testified that she resigned because she believed that she could

not physically perform her job.
        Harper worked for Lane Construction Corporation from March

22, 1995 through May 23, 1995.    Although Harper's employment

required little physical activity, her doctor removed her from

work as of May 23, 1995.    Harper later moved her residence to

another city and began seeing Dr. Wagner.    Dr. Wagner kept Harper

from work until July 24, 1995, when he released her to light

duty.

        The evidence also proved that when Harper applied for

employment with the Authority on July 30, 1993, she was required

to complete an application form.    The form contained the

following question:    "Have you ever been convicted of a law

violation, including moving traffic violations but excluding

offenses committed before your eighteenth birthday which were

finally adjudicated in a Juvenile Court or under a Youth Offender

Law?    You may omit traffic violations for which you paid $30 or




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less."   In response to that question, Harper indicated, "no."

Above Harper's signature, the form contained the following

attestation:   "I hereby certify that this application is a

complete record and that all entries given are true and accurate

to the best of my knowledge.   I understand that any attempt to

practice deception or fraud in this application is grounds for

disqualification or dismissal."   The evidence proved that less

than a year before Harper filled out the employment application

she had been convicted in Pennsylvania for insurance fraud and

conspiracy to commit insurance fraud.   Harper testified that she

"wasn't sure if it was a misdemeanor or [a] felony."
     Sherry Boyce, personnel director for the Authority,

testified that the fact that an applicant had a felony conviction

did not make the applicant automatically ineligible for

employment.    The Authority's policy required the personnel office

to consider other factors.   Thus, Boyce testified that they

"would get the information on the felony, . . . how long ago it

was, what it was, and make a determination from that."    However,

Boyce also testified that had Harper's convictions been reported

on her application, Harper would not have been hired by the

Authority.    Boyce further testified that Harper is not eligible

to be rehired because of the false response and that Harper would

have been dismissed if the Authority had discovered the

misrepresentation while Harper was still working at the

Authority.




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     The deputy commissioner found that on February 21, 1995,

Harper unjustifiably refused light duty work offered by the

employer.   Thus, the deputy commissioner denied benefits for the

period of February 21 through March 21, 1995.   In ruling on the

employer's defense of misrepresentation, the deputy commissioner

found as follows:
          [Harper's] felony conviction would not have
          automatically resulted in the [Authority's]
          rejection of her employment application. The
          falsehood itself did not contribute to the
          nature of her injury, which would prevent
          benefits as in those cases where a claimant
          lied about her physical condition. . . . Her
          misrepresentation of her criminal record on
          her employment application would prevent her
          being rehired by the employer. However,
          because she was medically totally disabled
          from May 23, 1995 through July 23, 1995, her
          disability is due to her original injury, and
          not her misrepresentation on the employment
          application. For these reasons, temporary
          total disability benefits are awarded from
          May 23, 1995 through July 23, 1995. The fact
          that she is not eligible to be rehired is
          found to have no bearing on temporary total
          disability benefits when the medical evidence
          establishes total disability.

Upon the Authority's request for review, the commission ruled as

follows:
                 The [Authority] has not proven the
            causal relationship between [Harper's] injury
            and her misrepresentation. [Harper] did not
            misrepresent a prior injury as in McDaniel
            nor did her misrepresentation relate to a
            qualification for her position as in Richards
            and Balboa.


The commission, therefore, affirmed the decision of the deputy

commissioner.   This appeal followed.




                                - 4 -
                                II.

     Stating the principles involving false representation on an

employment application, this Court has ruled as follows:
          [A] false representation on an employment
          application will operate to preclude
          compensation benefits upon proof by the
          employer that: (1) the employee knew that the
          representation was false; (2) the employer
          relied upon the false []representation; (3)
          such reliance resulted in the consequent
          injury; and (4) there is a causal
          relationship between the injury in question
          and the false representation.


Grimes v. Shenandoah Valley Press, 12 Va. App. 665, 667, 406

S.E.2d 407, 409 (1991); see Billy v. Lopez, 17 Va. App. 1, 4, 434

S.E.2d 908, 910 (1993).   The employer argues that it adequately

proved a causal relationship between the misrepresentation and

the injury.   We disagree.

     No evidence in the record proved that the misrepresentation,

that Harper had not committed a crime, was causally related to

Harper's injury.   See id. at 5, 434 S.E.2d at 911 ("There is

simply no evidence in the record that . . . [the

misrepresentation, that the employee was a legal alien,] was in

any way related to the consequent injury."); see also Grimes, 12
Va. App. at 668, 406 S.E.2d at 409 ("The fact that an employee

has [made a] misrepresent[ation] in a job application . . . does

not bar recovery where . . . the misrepresentation . . . is not

proved by the employer to be causally connected to the consequent

injury."); cf. McDaniel v. Colonial Mechanical Corp., 3 Va. App.

408, 414, 350 S.E.2d 225, 228 (1986) ("'If material



                               - 5 -
misrepresentations as to [the employee's] physical condition are

made by the prospective employee to the prospective employer and

employment is afforded on the basis of misrepresentations to the

detriment of the employer it is only right and just that

compensation benefits be denied.'") (emphasis added) (citation

omitted).

     The employer relies on Granados v. Windson Dev. Corp., 24

Va. App. 80, 480 S.E.2d 150 (1997), reh'g en banc granted, ___

Va. App. ___, ___ S.E.2d ___ (1997), for its assertion that it

proved its misrepresentation defense.   In Granados, a panel of
this Court stated that a misrepresentation unrelated to the

employee's health or physical condition is causally related if

the employer shows that it "relied on [the] misrepresentation[]

to [its] detriment by . . . employ[ing]" the employee.      Id. at

87, 480 S.E.2d at 153.   However, unlike in Granados, the

misrepresentation in this case did not relate to a status legally

required for Harper to be eligible for employment in the United

States.   Moreover, Harper's representation that she had no

criminal record was not a material fact that formed the basis for

the Authority's decision to hire Harper.   Rather, the evidence

proved that under the Authority's policy, an applicant's status

as a convicted felon was not a bar from employment.   Boyce, the

employer's personnel director, testified that she would determine

whether to hire the applicant based on "how long ago it was

[committed], [and] what [kind of felony] it was."   Boyce's



                               - 6 -
testimony that Harper would not have been hired had Harper

answered the question truthfully is not sufficient evidence to

establish a causal connection between the misrepresentation and

the injury.    See Grimes, 12 Va. App. at 667-68, 406 S.E.2d at

409.   Thus, the narrow exception created in Granados does not

apply.

       Accordingly, we hold that the evidence failed to prove a

causal connection between Harper's misrepresentation and her

injury.   We affirm the commission's decision.
                                                    Affirmed.




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