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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'
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
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.

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.
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).

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

* Pursuant to Code 17.1-413, this opinion is not
designated for publication.

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