McDaniel v. Colonial Mechanical Corp., 0194-86-2

• Decision Date: 05 November 1986
• Docket Number: No. 0194-86-2,0194-86-2
• Citation: 3 Va.App. 408,350 S.E.2d 225
• Parties: Roy McDANIEL v. COLONIAL MECHANICAL CORP., et al. Record
• Court: Virginia Court of Appeals

Page 225

350 S.E.2d 225

3 Va.App. 408

Roy McDANIEL v. COLONIAL MECHANICAL CORP., et al.

Record No. 0194-86-2.

Court of Appeals of Virginia.

Nov. 5, 1986.

Stephen Vieira, Richmond, for appellant.

S. Vernon Priddy, III (Sands, Anderson, Marks & Miller, Richmond, on brief), for appellee Colonial Mechanical Corp.

Julia Judkins (Steven W. Bancroft, Fairfax, on brief), for appellee Dubin & Associates.

Panel: KOONTZ, C.J., and COLEMAN and HODGES, JJ.

HODGES, Judge.

In this appeal we determine whether the evidence was sufficient to support the Industrial Commission's denial of compensation and medical benefits to Roy McDaniel, the appellant, based upon the employer's affirmative defense that claimant made an admitted false statement in his application for employment. We hold that it was and affirm.

McDaniel sustained a work-related injury to his lower back and left ankle on October 9, 1984 while employed by appellee, Dubin and Associates. He received medical treatment from the date of injury until December 5, 1984 from Doctors Robert White and James H. Masterson, orthopedists. Dr. White released McDaniel to return to work on November 19, 1984 without restriction. McDaniel continued to complain of discomfort and, after an examination on December 5, 1984, Dr. Masterson noted that the sciatic low back pain was not completely resolved although no objective findings or physical limitations precluded McDaniel's return to his pre-injury employment.

McDaniel received compensation from the date of injury through November 18, 1984. He filed an application with the Commission seeking an extension of compensation to December 5, 1984, which was denied on February 25, 1985.

Dubin terminated McDaniel's employment during the pendency of his claim for extended compensation and, on January 10, 1985, he filed an employment application with Colonial for a position as a plumber's helper. In the application with Colonial, McDaniel answered negatively questions which asked if he had any physical handicaps which would prevent him from performing any specific kinds of work and if he had ever received compensation for injuries. Additionally, he failed to list Dubin among his former employers.

On January 18, 1985, McDaniel was examined and treated at Richmond Orthopedic Clinic, Ltd. for his October injury. He stated to the attending physician that he had been unable to work at several jobs because of persisting low back pain which radiated into both legs. After he began employment with Colonial on January 21, 1985, he returned to the clinic on February 4, 1985 complaining of discomfort, but failed to appear for an epidural steroid injection and bone scan recommended by his physician.

On April 23, 1985, McDaniel suffered a back injury while lifting a manhole cover in the course of his employment with Colonial. He was initially treated on April 24, 1985 by Dr. Charles E. Brehmer whose diagnosis was lumbar paraspinous muscle spasm. Dr. Brehmer told McDaniel that he could return to light duty on May 6, 1985 and should return for further examination on May 10, 1985. On the follow-up visit the doctor found no improvement and referred McDaniel to Dr. Kenneth I. Kiluk, a neurological surgeon. McDaniel continued to complain of pain in his middle back radiating into his right hip and leg. Dr. Kiluk's examination revealed no evidence of nerve root irritation, and he prescribed drugs and physical therapy. McDaniel was informed that he could return to work on July 8, 1985. He attempted to work but had to stop because of the pain.

On July 3, 1985, McDaniel was examined and treated by Dr. R. Kirk Reed, a chiropractic physician. For the first time, he revealed his October, 1984 injury to the treating physician. This was made known to the insurance carrier and Colonial, and his workers' compensation benefits and employment were subsequently terminated.

McDaniel then filed a petition with the Commission seeking reinstatement of his benefits. Colonial defended on the grounds that McDaniel's injury was from the October 9, 1984 accident and, even if he suffered injuries on April 23, 1985, while employed by Colonial he should be barred from receiving benefits because he falsified his employment application. Based on the circumstances and Colonial's defense, the deputy commissioner ordered that Dubin, McDaniel's previous employer, be made a party. Dubin defended on the ground that the injury was new and totally attributable to the April accident while McDaniel was employed by Colonial.

The deputy commissioner found that there was no evidence in the medical records to attribute McDaniel's condition to anything but the April 23 accident sustained while he was employed by Colonial. However, the deputy commissioner also found that McDaniel was precluded from receiving benefits due to his fraudulent procurement of employment with Colonial. McDaniel appealed to the full Commission as to both employers, and the Commission affirmed the deputy commissioner's findings. McDaniel then appealed the decision to this Court, but raised questions related only to the finding of disqualification for benefits. Inasmuch as he has raised no questions as to any liability on the part of Dubin, the Commission's opinion dismissing them is final.

The question, therefore, is whether McDaniel forfeited his rights to workers' compensation benefits when he falsified his employment application with Colonial. While neither this Court nor the Supreme Court has addressed this issue, the Commission adopted what constitutes the majority view in this country. A false representation as to physical condition or health made by an employee in procuring employment will preclude workers' compensation benefits for an otherwise compensable...