                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Alexandria, Virginia


FALLS CHURCH CONSTRUCTION COMPANY
 AND WEST AMERICAN INSURANCE COMPANY
                                           MEMORANDUM OPINION * BY
v.          Record No. 1628-96-3         JUDGE ROSEMARIE ANNUNZIATA
                                              DECEMBER 3, 1996
ROBERT C. LAIDLER


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

           Roger A. Ritchie (Roger Ritchie & Partners,
           P.L.C., on brief), for appellee.



     Employer, Falls Church Construction Company, and insurer,

West American Insurance Company (together referred to as

employer), appeal the commission's decision that claimant, Robert

C. Laidler, did not knowingly misrepresent his criminal status in

his employment application and that employer did not rely on

claimant's alleged misrepresentation.    For the reasons that

follow, we affirm.

     A false representation on a job application precludes

compensation where the employer proves, inter alia, that (1) the
employee knowingly made a false representation; and (2) the

employer relied on the false representation and, thereby,

provided the employment from which the injury in question

     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
results.   See, e.g., Grimes v. Shenandoah Valley Press, 12 Va.

App. 665, 667, 406 S.E.2d 407, 409 (1991).    On review, we

construe the evidence in the light most favorable to the party

prevailing below and will uphold the commission's findings of

fact if credible evidence supports them.     Id.    In the present

case, we find that the evidence fails to support the commission's

finding that claimant did not misrepresent his criminal status.

However, we find that the record supports the commission's

finding that employer did not rely on the misrepresentation and,

therefore, affirm.
     In June 1992, claimant completed a job application

responding, inter alia, that he had never been "charged or

convicted of a felony or any crime."   Claimant signed the

application, thereby warranting that his answers were "complete

and true, with the understanding that . . . false answers or

concealment of material information shall be grounds for

discharge."   Claimant worked from June 2, 1992 until July 27,

1992, when employer terminated him because of absenteeism.

     In May 1993, employer rehired claimant.       Pursuant to company

policy, claimant submitted another, identical job application.

On the second application, claimant failed to respond, inter
alia, to the question concerning his prior criminal record.

Rather than having claimant complete the second application,

employer's human resources representative, Beverly Spalding,

referred to the information claimant had provided in his initial




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application.   Spalding assumed claimant's answer concerning his

prior criminal offenses remained the same, reasoning that

claimant had verified his current answers to be "complete and

true" with the knowledge that concealment of material information

was grounds for discharge.   Spalding also noted that the answers

which claimant had provided remained unchanged.

     In July 1993, claimant suffered a compensable injury by

accident.   Pursuant to agreement by the parties, the commission

entered an award of temporary total disability benefits for two

periods during the Summer and Fall of 1993.    Subsequently,

claimant filed a claim for benefits, seeking reinstatement of

temporary total disability benefits.     In the Spring of 1994,

claimant responded to employer's interrogatories, stating that he

had been convicted of breaking and entering in 1978 and had

served two years of probation.    Employer defended the claim for

benefits on the ground that claimant had made a material

misrepresentation on his job application with respect to his

prior criminal record.
     A hearing was conducted in January 1995 at which Spalding

testified concerning employer's hiring policy.    She stated that,

because employer often worked on government projects, it wanted

to know the criminal records of its employees and to be informed

truthfully of the information requested in the application.

Spalding testified that employer would not have hired claimant

had he represented his criminal record completely and truthfully,




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and that employer would have fired claimant had it learned the

truth while claimant was still employed.    Claimant admitted that

the representation on the initial application was, in fact,

untrue.   However, he testified that the charge against him had

been reduced to unlawful entry and that he thought the offense

was a misdemeanor at the time he completed the application.

     The commission found claimant had misrepresented his

criminal status on the initial application.    However, it found

that claimant made no misrepresentation on the second

application, because he made no representation at all.

Furthermore, the commission found employer did not rely on the

alleged misinformation because it failed to have claimant

complete the application.
     There is no dispute that claimant affirmatively

misrepresented his criminal status in his initial application.

On his second application, claimant failed to answer the question

concerning his criminal record.    However, claimant signed the

application, verifying that it was "complete and true" and

knowing that concealment of material information was grounds for

discharge.   The commission's finding that "claimant made no

misrepresentation on [the] second application regarding his

criminal status, because he made no representation at all," is a

clear misstatement of the law.     See, e.g., Metrocall of Delaware

v. Continental Cellular, 246 Va. 365, 374, 437 S.E.2d 189, 193

(1993) ("Concealment of a fact that is material to the



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transaction, knowing that the other party is acting on the

assumption that no such fact exists, is as much fraud as if

existence of the fact were expressly denied").   We find that the

evidence in its entirety compels the conclusion that claimant

knowingly misrepresented the truth about his criminal status on

the second application.

     However, the record supports the commission's finding that

employer failed to rely on claimant's misrepresentation.    We will

not disturb the commission's implicit credibility finding that

the testimony of employer's witness, stating that employer relied

on the absence of an affirmative response to the question

concerning criminal status in hiring claimant, was unbelievable.

Moreover, employer's acts support the commission's finding.     The

two applications were filled out nearly a year apart.   Employer's

reliance on claimant's answers on his first application to fill

in the blanks he left on the second application provided employer

no information concerning events which may have transpired since

claimant completed the first application.   Employer's failure to

have claimant fill in that gap supports the commission's finding

that it did not rely on the absence of information in hiring

claimant.
     Accordingly, the decision of the commission is affirmed.

                                                           Affirmed.




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