Tkach v. Food Lion, LLC, #2917, VWC File No. 236-65-21 (March 5, 2010)

Claimant sustained an injury to her knee and lower back from an injury that occurred when she tripped on wires around a kiosk during the course of her employment at Food Lion. The Commission entered a February 20, 2008 award providing for temporary total disability benefits beginning November 20, 2007 and continuing during incapacity. A later agreement terminated the temporary total award as of January 20, 2008 and provided for temporary partial disability compensation beginning January 21, 2008, pursuant to the Commission’s March 25, 2008 award. Employer filed an application on October 20, 2008 alleging that on October 16, 2008, Dr. Lotfi released the Claimant to pre-injury work effective October 20, 2008, to which the claimant agreed. Employer filed a second application on October 23, 2008 alleging the Claimant had procured workers’ compensation benefits by fraud because she misrepresented her medical history to the employer and to the doctors, and was thus entitled to a credit pursuant to Virginia Code § 65.2-712.

Claimant’s statements to her doctors and the employer’s insurance adjusters are rife with contradictions and omissions. At the hearing, claimant testified that she did not recall exactly what she had told any given doctor as to the nature and occurrence of her accident. Claimant failed to give a thorough medical history to her various physicians, omitting previous accidents, back injuries, treatments and complaints. Claimant answered “N/A” to interrogatories asking about prior back or spine pain or previous accidents or personal injuries involving her back or spine. She testified however, that she should have answered yes to these questions but could not recall the information at the time.

Claimant sustained a previous injury to her back, fourteen years earlier, while working for the City of Manassas School system and had related pain and problems from that injury, for which she sought treatment. Additionally, Claimant agreed that she had a 2005 car accident but stated she did not list this in her discovery responses because “nothing happened,” and remembered that she had x-rays following this accident but that no problems were found with her back. Claimant also did not disclose in her discovery responses, treatment for migraines, falling down and a heart attack, with Dr. Werner in 2006. She first denied and then recalled physical therapy for her back in 2007. She also did not recall seeing a back specialist before her accident at Food Lion but rather that she had seen a neurologist for migraines in 2005. Much of this medical history was also not relayed to the adjuster after the Food Lion accident and in fact, Claimant stated that any prior back pain was due to her simply being old.

The Deputy Commissioner recognized that Virginia Code § 65.2-712 provides that “any payment to a claimant by an employer or insurer which is later determined by the Commission to have been procured…by fraud…may be recovered from the claimant…either by way of credit against future compensation payments due to the claimant…or action at law against the claimant.” The Deputy Commissioner further stated that the same elements for misrepresentation should be applied to an allegation of fraud, and in the case of a defense of fraudulent misrepresentation, the Court of Appeals has held that the employer must show the following:

1) that the employee knowingly made a false misrepresentation,
2) that the employer relied upon the false representation,
3) that the reliance resulted in the consequent injury, and
4) that there is a causal relationship between the injury in question and the false representation.

The Deputy Commissioner held that the employer did not meet its burden of proof of fraud by clear and convincing evidence, and reinstated the March 25, 2008 award effective October 21, 2008. She agreed that the claimant did not fully describe her pre-existing back problems in her recorded statement taken 10 days after her accident at Food Lion. The medical records reflected that she had undergone physical therapy for her low back despite Claimant’s testimony that the only treatment she had received was for migraines. The Deputy Commissioner stated that the employer did not meet its burden because it offered no evidence about detrimental reliance or a causal connection. Finally, the Deputy Commissioner noted that Claimant’s treating physician, Dr. Lotfi, opined that Claimant’s fall at work was at least a material aggravation of a pre-existing degenerative condition.

The full Commission agreed that the employer did not meet its burden of proof because although Claimant did not reveal a thorough past history, her treating physician’s opinion supports the finding that the fall materially aggravated her pre-existing back problems. Because the Claimant was released to return to work effective October 20, 2008, the Commission terminated the March 25, 2008 order and ordered that the Claimant’s medical benefits shall continue as previously awarded for her November 20, 2007 injury.

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