MISREPRESENTATION
[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). 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 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).
False representation of employment status rather
than physical limitations. 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. Prince
William County. Service Auth. v. Harper, 256 Va. 277, 280, 504 S.E.2d
616, 617 (1998) WP
Version; Falls
Church Constr. v. Laidler, 254 Va. 474, 477-78, 493 S.E.2d 521, 523
(1997). In Harper, an employee sustained injuries to her wrist and coccyx
while performing her job. She had been hired after falsely stating in her
employment application that she had not been convicted of a crime as an adult. In
fact, she had been convicted of the felonies of insurance fraud and criminal conspiracy.
Her employer's personnel director testified at a hearing before a deputy commissioner that
the employee would not have been hired if she had disclosed her felony convictions,
because of the nature of the convictions and their recent date. 256 Va. at 279, 504 S.E.2d
at 617. The Supreme Court affirmed the Court of Appeals' judgment upholding the award
of compensation. The Supreme Court stated that the employer failed to prove its
claim of false representation, because testimony that the employee would not have
been hired if she had disclosed her felony convictions "is not sufficient to
demonstrate the existence of a causal relationship between [the employee's] work-related
injury and her misrepresentation." Id. at 280, 504 S.E.2d at 617. The
required causal connection between an injury and a false representation
was demonstrated in McDaniel v. Colonial Mechanical Corp., 3 Va.
App. 408, 350 S.E.2d 225 (1986), in which the complainant had sustained a work-related
back injury. At the time he was hired, the employee falsely denied in his
employment application that he had any physical limitations that would prevent him from
performing certain types of work, and stated that he had never received workers'
compensation benefits for his injuries. However, the employee had injured his
back about six months earlier in a previous job and had received compensation benefits for
that injury for about five weeks. Id. at 410, 350 S.E.2d at 226. The Court of
Appeals held that there was a causal relationship between the employee's false
representations and his injury. The Court based its holding on the medical evidence, which
established that the second injury was in the same area of the employee's back as
the earlier injury and was accompanied by similar complaints of pain radiating into the
right leg. Id. at 413, 350 S.E.2d at 228. In the present case, the
employer failed to demonstrate the required causal relationship between claimant's false
representation and his resulting injury. Claimant's injury was unrelated to the
substance of his false representations concerning his immigration status and eligibility
for employment. Therefore, based on Harper, the Supreme Court concluded
that the Commission erred in ruling that claimant's false representations precluded an
award of benefits. Jose
Granados v. Windson Development Corp., et al., Record No. 980190
(January 8, 1999). The Supreme Court went on to deny benefits because the claimant,
as an illegal alien, was not an "employee" under the Act.
In Granados
v. Windson Dev. Corp., 24 Va. App. 80, 480 S.E.2d 150 (1997), aff'd, 26
Va. App. 251, 494 S.E.2d 162 (1997). the Court of Appeals, by an equally divided
court, affirmed the commission’s rejection of the employer’s misrepresentation
defense. In the panel decision in Granados, a panel of the 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 the employee to be eligible for employment in the United
States. An applicant's status as a convicted felon was not a bar from employment.
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." Testimony that the employee would not have been hired had the employee
answered the question truthfully is not sufficient evidence to establish a causal
connection between the misrepresentation and the injury. See Grimes v. Shenandoah
Valley Press, 12 Va. App. 665, 667-68, 406 S.E.2d 407, 409 (1991). Thus, the narrow
exception created in Granados does not apply. See Prince William County.
Service Auth. v. Harper, 256 Va. 277, 280, 504 S.E.2d 616, 617
(1998) WP
Version: An employee's false statement on an employment application that she had
not been convicted of a felony does not bar her receipt of workers' compensation benefits
where there is no causal relationship between the injury in question and the
misrepresentation. Testimony that the employer would not have hired claimant
had it been aware of her felony convictions is not sufficient to demonstrate the existence
of a causal relationship between claimant's work-related injury and her
misrepresentation.
In Falls
Church Construction Co. v. Laidler, 254 Va. 474, 477-78, 493 S.E.2d
521, 523 (1997), the Supreme Court held that an employee's false representation in an
employment application 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 in
question and the misrepresentation. See, e.g., Billy v. Lopez, 17 Va. App. 1, 4,
434 S.E.2d 908, 910 (1993); Grimes v. Shenandoah Valley Press, 12 Va. App. 665,
667, 406 S.E.2d 407, 409 (1991); McDaniel v. Colonial Mechanical Corp., 3 Va. App.
408, 411-12, 350 S.E.2d 225, 227 (1986); 3 Arthur Larson, Larson's Workers'
Compensation Law, Sec. 47.53 (1997). The concealment of a material fact on an
employment application constitutes the same misrepresentation as if the existence of the
fact were expressly denied. See Virginia Natural Gas Co. v. Hamilton, 249 Va. 449,
455, 457 S.E.2d 17, 21 (1995); Van Deusen v. Snead, 247 Va. 324, 328, 441 S.E.2d
207, 209-10 (1994); Metrocall of Delaware v. Continental Cellular, 246 Va. 365,
374, 437 S.E.2d 189, 193 (1993). Where there was credible evidence that the employer's
decision to rehire an employee was not made in reliance on his misrepresentation in the
second application, but was founded on its assumption that he had no criminal record when
he submitted the second application, the employer failed to prove the reliance element of
its false representation defense. The Supreme Court in Laidler did not consider the
remaining elements of the misrepresentation defense, including the issue whether there was
a causal relationship between the injury and the misrepresentation. Thus, the Court did
not address the requirements for establishing a causal relationship between an injury and
a misrepresentation under a false representation defense.
Prince William County.
Service Auth. v. Harper, 256 Va. 277, 504 S.E.2d
616 (1998) WP
Version. An employee's false statement on an employment
application that she had not been convicted of a felony does not bar her receipt of
workers' compensation benefits where there is no causal relationship between the injury in
question and the misrepresentation. Testimony that the employer would not have hired
claimant had it been aware of her felony convictions is not sufficient to
demonstrate the existence of a causal relationship between claimant's work-related injury
and her misrepresentation.
Claimant asserts that he answered the questions truthfully because he
subjectively believed that he could perform the job adequately. In rejecting this
assertion, the court relied mainly upon Bean v. Hungerford Mechanical Corp., 16 Va.
App. 183, 428 S.E.2d 762 (1993). In Bean, the court recognized the right of
the employer "to know the true health condition of an employee before assigning work
duties." Bean, 16 Va. App. at 187, 428 S.E.2d at 764-65. The employer
must be fully informed because it accepts the employee with all his infirmities
and an aggravation of a previous injury by accident becomes the responsibility of the
employer. Id. A false representation as to physical condition or health
made by an employee in procuring employment will preclude workers' compensation benefits
if a causal relationship between the injury and the misrepresentation is
shown and (1) the employee knew the representation to be false,
(2) the employer relied upon the false representation, and (3) such reliance
resulted in the consequent injury to the employee. Bean,
16 Va. App. at 186, 428 S.E.2d at 764; see McDaniel v. Colonial Mechanical Corp., 3
Va. App. 408, 411, 350 S.E.2d 225, 227 (1986).
Claimant is not barred from benefits because she
did not misrepresent her physical capacity by not responding to the
inquiry, "Do you know of, or have you any physical disability that
could or would hinder or limit your activity while working in your
trade?" which appeared on her employment application.
Claimant testified that she "really overlooked" the
question in issue, but would have "marked no" in response
because, "[i]n [her] opinion, the three surgeries [she] had on [her]
back . . . would [not] act as a limiting factor on what [she] could do as
a laborer." We recognize that [a]n employee's false representation in
an employment application will bar a later claim for workers' compensation
benefits if the employer proves that 1) the employee intentionally made a
material false misrepresentation; 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 in
question and the misrepresentation. Falls Church Const. Co. v. Laidler,
254 Va. 474, 477-78, 493 S.E.2d 521, 523 (1997) (citations omitted).
"The concealment of a material fact on an employment application
constitutes the same misrepresentation as if the existence of the fact
were expressly denied." Id.
(citations omitted). However, the instant record discloses that claimant
was under no work restrictions at the time of her employment and did not
subsequently seek related medical care until after the 1995 injury. No evidence otherwise suggests that she intentionally misrepresented her physical condition
to employer. Under such circumstances, the commission's finding that
"employer failed to prove that [claimant] made a material
misrepresentation on her employment application" is supported by the
evidence. Basic
Construction Company v. Hamilton, Record No.
2844-98-1 (August 17, 1999). WP
Version.
An insurance company's agent's statement that LUA's policy
requirement for reporting and treating all work- related injuries would
eventually reduce the cost of workers' compensation insurance coverage for
Dave's Cabinet was merely an unfulfilled promise as to a future event and
not a statement concerning an existing or pre-existing fact. "'[F]raud
must relate to a present or a pre-existing fact, and cannot ordinarily be
predicated on unfulfilled promises or statements as to future events.'"
Patrick v. Summers, 235 Va. 452, 454, 369 S.E.2d 162, 164 (1988)
(quoting Soble v. Herman, 175 Va. 489, 500, 9 S.E.2d 459, 464
(1940)). See ITT Hartford Group, Inc. v. Virginia Fin. Assoc., Inc.,
258 Va. ___, ___, ___ S.E.2d ___, ___ (1999), decided today. Thus, the
statement cannot serve as the basis of a claim for fraud. Lumbermen's
Underwriting v. Dave's Cabinet Inc., Record No. 982434 (S.Ct.,
September 17, 1999). WP
Version.
The Americans with Disabilities Act (42 U.S.C. Sec. 12101, et seq.)
and questions on job applications concerning physical condition. Generally,
employers may not ask job applicants about the existence, nature or severity of a
disability. Applicants may be asked about their ability to perform specific job functions.
A job offer may be conditioned on the results of a medical examination, but only if the
examination is required for all entering employees in similar jobs. Medical examinations
of employees must be job related and consistent with the employer's business needs. U.S. Equal Employment Opportunity
Commission, Facts About the Americans with Disabilities Act. See also 29 CFR Part 1630.
Under the ADA it is unlawful to:
- ask an applicant whether he or she is disabled or about the nature or severity of a
disability, or
- to require the applicant to take a medical examination before making a job offer.
An employer may ask an applicant questions about ability
to perform job-related functions, as long as the questions are not phrased in
terms of a disability. An employer may also ask an applicant to describe or to
demonstrate how, with or without reasonable accommodation, the applicant will perform
job-related functions.
After a job offer is made and prior to the
commencement of employment duties, an employer may require that an applicant take
a medical examination if everyone who will be working in the job category must also take
the examination. An employer may condition the job offer on the results
of the medical examination. However, if an individual is not
hired because a medical examination reveals the existence of a disability, the
employer must be able to show that the reasons for exclusion are job related and
necessary for conduct of the business. The employer also must be able to show
that there was no reasonable accommodation that would have made it possible for
the individual to perform the essential job functions.
Once the employer has hired an applicant, the employer
cannot require a medical examination or ask an employee questions about disability unless
the employer can show that these requirements are job related and necessary for the
conduct of the business. The employer may conduct voluntary medical examinations
that are part of an employee health program.
The results of all medical examinations or information from
inquiries about a disability must be kept confidential, and maintained in separate medical
files. The employer may provide medical information required by State workers'
compensation laws to the agencies that administer such laws. The U.S. Equal Employment
Opportunity Commission, The ADA: Your Responsibilities as an Employer. See also 29 CFR Part 1630.