                     COURT OF APPEALS OF VIRGINIA


Present:    Judges Bumgardner, Kelsey and Senior Judge Hodges


PROGRESSIVE DRIVER SERVICES, INC. AND
 ZENITH INSURANCE COMPANY
                                             MEMORANDUM OPINION*
v.   Record No. 0031-03-1                         PER CURIAM
                                                 MAY 6, 2003
JOHN TALLEY


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             (Richard D. Lucas; Lucas Law Firm, PLC, on
             briefs), for appellants.

             (Kelli King; Wood & Brooks, on brief), for
             appellee.


     Progressive Driver Services, Inc. and its insurer

(hereinafter referred to as "employer") contend the Workers'

Compensation Commission erred in finding that (1) it failed to

prove that it relied upon John Talley's misrepresentations in

his employment application in hiring claimant; (2) employer was

required to prove that its reliance on claimant's

misrepresentations on his employment application led to the

injury or that the injury resulted from the misrepresented

condition; and (3) claimant proved he sustained an injury by

accident arising out of and in the course of his employment on

April 10, 2001.     Upon reviewing the record and the parties'


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
briefs, we conclude that this appeal is without merit.

Accordingly, we summarily affirm the commission's decision.

Rule 5A:27.

    I. and II.     Misrepresentations on Employment Application

           A false representation made by an employee
           in applying for employment will bar a later
           claim for workers' compensation benefits if
           the employer proves that 1) the employee
           intentionally made a material false
           representation; 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 at issue and the
           misrepresentation.

Granados v. Windson Dev. Corp., 257 Va. 103, 106-07, 509 S.E.2d

290, 292 (1999).    Employer bore the burden of proving its

defense by a preponderance of the evidence.    Unless we can say

as a matter of law that employer's evidence sustained its burden

of proof, the commission's findings are binding and conclusive

upon us.   See Tomko v. Michael's Plastering Co., 210 Va. 697,

699, 173 S.E.2d 833, 835 (1970).

     In ruling that employer failed to prove that it relied upon

any of the claimant's misrepresentations and that this reliance

resulted in the injury, the commission found as follows:

           The employer presented no evidence that it
           relied upon the misrepresentations in hiring
           [claimant] and that the back injury resulted
           from this reliance.

                The employer merely testified that it
           used the health questionnaire as a tool
           during the hiring process. [Helen]
           Schuster[, a supervisor,] did not elaborate
                               - 2 -
          as to which portions or answers would
          disqualify the claimant from being hired.
          She never asserted that if the employer had
          known about [claimant's] previous back
          condition, or any other circumstance, it
          would not have hired him. To the contrary,
          the claimant showed that the employer was
          made aware of his pulled back muscle while
          working for Reliable.

               The employer has presented no evidence
          that any misrepresentation led to the
          injury. The employer has not shown that it
          would have taken different measures or
          changed the claimant's duties if it had
          known about his previous health conditions.
          There is no evidence that the injury
          resulted from a prior back problem, a prior
          hearing condition, or his disqualification
          from driving during the 1980's.

               Based upon the presented evidence, it
          is speculation that the employer relied upon
          the claimant's misrepresentations in hiring
          him and that the injury was causally related
          to the misrepresentations.

     Here, no evidence established that employer relied upon

claimant's misrepresentations.   Schuster's deposition testimony

that the application was a "tool in the hiring process" and

provided "an opportunity for further investigation" did not

prove that employer relied upon claimant's misrepresentations.

Based upon this record, we cannot find as a matter of law that

employer's evidence sustained its burden of proof.   Because we

find employer failed to prove it relied upon claimant's

misrepresentations, we need not address the causation issue.




                             - 3 -
                    III.   Injury by Accident

     On appeal, we view 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 (1990).

Factual findings made by the commission will be upheld on appeal

if supported by credible evidence.   See James v. Capitol Steel

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

     In ruling that claimant proved he sustained an injury by

accident arising out of and in the course of his employment on

April 10, 2001, the commission found as follows:

          The Deputy Commissioner concluded that the
          claimant's description of how his [sic] he
          was injured on April 10, 2001, was credible
          and we accept her conclusion in this regard.

               We also note that the claimant's
          description of his injury is supported by
          the testimony of Messrs. [Otis] Young and
          [Ron] Lewis. Both of these gentlemen
          testified that several of the doors at the
          Owens Broadway warehouse were very difficult
          to open.

               In addition, we find that the pictures
          of the warehouse door support the claimant's
          version of his accident. These photographs
          depict a large warehouse door that does not
          lay properly in its tracks.

               Moreover, the claimant's consistency
          with respect to his description of his
          accident supports his credibility. The
          claimant told Mr. Young and Mr. Lewis on the
          day of his accident that he hurt his back
          when trying to lift one of the warehouse
          doors. He has also told all of his medical
          care providers that he injured his back in
          this manner.


                             - 4 -
                Nor does the testimony of the
           employer's representative, Ms. Schuster,
           show any inconsistency with respect to the
           claimant's description of his injury.
           According to Ms. Schuster, the claimant told
           her on the day after his accident that "he
           was opening the doors to sweep out his truck
           and felt pain in the lower right-hand side
           of his back." While Ms. Schuster may have
           interpreted the "doors" mentioned as being
           the doors to the claimant's trailer, the
           claimant explained that he was attempting to
           lift the warehouse doors to go into the
           building and sweep out the trailer that he
           had already delivered.

     Claimant's testimony, which was corroborated by his reports

to Young and Lewis and the medical histories, constitutes

credible evidence to support the commission's findings that

claimant strained his back while working and that his back

strain was caused by an identifiable incident or sudden

precipitating event resulting in a mechanical or structural

change in his body.   Thus, those findings are binding and

conclusive upon us on appeal.    Id.    "In determining whether

credible evidence exists, the appellate court does 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).   Moreover, it is well settled that credibility

determinations are within the fact finder's exclusive purview.

Goodyear Tire & Rubber Co. v. Pierce, 5 Va. App. 374, 381, 363

S.E.2d 433, 437 (1987).


                                - 5 -
For these reasons, we affirm the commission's decision.

                                                   Affirmed.




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