COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Clements
Argued by teleconference
LENA ROBERTSON FOR
CHARLES ROBERTSON, DECEASED
OPINION BY
v. Record No. 3431-01-2 JUDGE RUDOLPH BUMGARDNER, III
AUGUST 27, 2002
E.I. DuPONT de NEMOURS & COMPANY, INC.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Gary W. Kendall (J. Gregory Webb; Michie,
Hamlett, Lowry, Rasmussen & Tweel, P.C., on
brief), for appellant.
Stephen D. Busch (Kathryn A. Ramey;
McGuireWoods LLP, on brief), for appellee.
Lena Robertson, widow of Charles Robertson, appeals the
denial of her claim for temporary total benefits, Code
§ 65.2-500, and the award of permanent partial benefits for
Stage I asbestosis based on Mr. Robertson's average weekly wage
when he last worked, twenty-six years earlier, Code
§ 65.2-503(B)(17)(a). For the following reasons, we affirm.
The facts were stipulated. Charles Robertson retired from
E.I. DuPont de Nemours twenty-six years before he was diagnosed
with Stage I asbestosis. He had worked for DuPont for
twenty-seven years, and his last occupational exposure to
asbestos occurred during his employment there. The worker did
not work, earn wages, or seek to earn wages after his voluntary
retirement in 1973. Charles Robertson earned no wages in the 52
weeks prior to his diagnosis of asbestosis and suffered no loss
of wages as a result of the diagnosis. He died a year after the
diagnosis.
The commission denied the worker's claim for temporary
disability benefits because he had not earned any wages in the
52 weeks prior to the date of communication of his disease to
him. The commission based its decision on Newton v. Fairfax
Police Dep't, 259 Va. 801, 529 S.E.2d 794 (2000), and Arlington
County Fire Dep't v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124
(1996). Those cases control this case.
Stebbins was a voluntarily retired firefighter. He had not
earned any income for 52 weeks before being diagnosed with an
occupational disease, heart disease. This Court vacated the
commission's award of compensation for lost wages because an
award under those circumstances would result in an economic
windfall to the worker. 21 Va. App. at 574, 466 S.E.2d at 126.
"The purpose of the Workers' Compensation Act is to compensate
employees when they lose an opportunity to engage in work after
suffering work-related injuries. Based on this purpose, the Act
compensates injured employees for loss of earning capacity."
Id. at 572, 466 S.E.2d at 125-26 (citations omitted).
"Compensation is ultimately dependent upon and determined on the
loss of wages." Id. at 573, 466 S.E.2d at 126 (citations
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omitted). Stebbins was not entitled to compensation for lost
wages because he suffered no economic loss.
The Supreme Court applied that analysis in Newton, 259 Va.
at 804, 529 S.E.2d at 795. Newton was a voluntarily retired
policeman, who died from a heart attack shortly after receiving
a diagnosis of heart disease, an occupational disease. He had
not earned wages or sought employment for 52 weeks before
learning of his disease. The Court affirmed the denial of
weekly indemnity benefits because there was no economic loss.
"Claimants are not entitled to weekly indemnity benefits because
Newton did not receive any earnings from employment during the
52 weeks preceding the date of the communication of the
diagnosis of his occupational disease." Id. at 805, 529 S.E.2d
at 796.
In this case, the worker earned no wages during the 52
weeks prior to the date his disease was communicated to him. We
affirm the denial of the claim for wage loss benefits because he
suffered no economic loss.
The commission did award compensation for permanent partial
loss for Stage I asbestosis. Code § 65.2-503(B)(17)(a).
Benefits for the losses listed in Code § 65.2-503 have been
described as payment for "loss of what might be termed 'human
capital.'" Morris v. Virginia Retirement Sys., 28 Va. App. 799,
806, 508 S.E.2d 925, 929 (1999). Such benefits are not related
to income earned. While the commission awarded these benefits,
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it ruled the average weekly wages would be calculated at the
wages the worker last earned prior to his retirement from DuPont
twenty-six years before. The worker argues he is entitled to an
enhanced average weekly wage, based on the date the disease was
communicated to him, as provided in Code § 65.2-406(C). 1
The commission relied on Chesapeake & Potomac Telephone Co.
v. Williams, 10 Va. App. 516, 392 S.E.2d 846 (1990), in ruling
that the earlier wage applied. Williams was diagnosed with
mesothelioma caused by exposure to asbestos after he voluntarily
retired from C&P, but while earning a lower wage with another
employer. C&P argued that the proper average weekly wage was
the lower wage the worker earned during the preceding 52-week
period. The only issue was whether the commission erred in
1
Code § 65.2-406(C), provides in relevant part,
For a first or an advanced stage of
asbestosis . . . if the employee is still
employed in the employment in which he was
injuriously exposed, the weekly compensation
rate shall be based upon the employee's
weekly wage as of the date of communication
of the first or advanced stage of the
disease, as the case may be. If the
employee is unemployed, or employed in
another employment, the weekly compensation
rate shall be based upon the average weekly
wage of a person of the same or similar
grade and character in the same class of
employment in which the employee was
injuriously exposed and preferably in the
same locality or community on the date of
communication to the employee of the
advanced stage of the disease . . . .
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calculating his average weekly wage as the wages earned during
his exposure to the disease. The decision specifically dealt
with the issue the claimant raises in this case.
However, we find that by using the phrase
"in the employment in which he was working
at the time of his injury" in Code § 65.1-6
[now 65.2-101], the legislature intended
that the average weekly wage award be based
upon the wages received from the employment
where the employee was exposed to the
element which caused the occupational
disease for which claim is made.
Id. at 519, 392 S.E.2d at 848.
Contrary to C&P's argument that the later date of
communication should be used, the decision distinguished between
"the time of injury for purposes of the average weekly wage" and
"the date of injury for purposes of the statute of limitations."
Id. at 516, 392 S.E.2d at 847. The date an occupational disease
is discovered and communicated to the worker "shall be treated
as the happening of an injury by accident" for purposes of the
statute of limitations. Code § 65.2-403(A). Average weekly
wage, however, is defined as "the earnings of an injured
employee in the employment in which he was working at the time
of the injury." Code § 65.2-101.
In this appeal, the worker argues asbestosis should be
treated differently from other diseases when determining wage
loss benefits. However, we are bound by the explicit holding in
Williams. See Commonwealth v. Burns, 240 Va. 171, 173-74, 395
S.E.2d 456, 457 (1990). We affirm the commission's calculation
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of the worker's average weekly wage at the amount he earned at
the time he was exposed to the asbestos.
For the reasons stated, we affirm the decision of the
commission.
Affirmed.
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Elder, J., concurring, in part, and dissenting, in part.
I concur in the majority's decision affirming the
commission's denial of temporary total disability benefits.
However, I disagree that our holding in Chesapeake & Potomac
Telephone Co. v. Williams, 10 Va. App. 516, 392 S.E.2d 846
(1990), compels the commission's conclusion that the permanent
partial disability benefits awarded for Charles Roberston's
asbestosis should be calculated based on the average weekly wage
he earned before voluntarily retiring in 1973. Therefore, I
respectfully dissent from this portion of the majority opinion.
The claimant in Williams sought temporary total disability
compensation for mesothelioma rather than asbestosis. 2 See 10
Va. App. at 517, 392 S.E.2d at 847. Although the portion of
present Code § 65.2-406(C) providing for an enhanced weekly
compensation rate refers specifically to both asbestosis and
mesothelioma, this has not always been the case. The claimant
in Williams received his mesothelioma diagnosis on January 20,
1988. See Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 54, 122
2
Mesothelioma is a form of cancer which affects mesothelial
tissue in the lungs, peritoneum or pericardium. The
Sloane-Dorland Annotated Medical-Legal Dictionary 351 (Supp.
1992). Asbestosis is "a form of lung disease (pneumoconiosis)"
which causes interstitial fibrosis or scarring of the lungs.
Id. at 36. "'[N]ot everyone who develops asbestosis develops
mesothelioma, and it is not necessary to have asbestosis to have
mesothelioma.'" Id. at 352 (quoting Owens Corning Fiberglas
Corp. v. Hammond, 555 N.E.2d 1233, 1236 (Ill. App. Ct. 1990)).
Although both are caused by exposure to asbestos, "'asbestosis
and mesothelioma are two separate diseases.'" Id. (quoting
Hammond, 555 N.E.2d at 1236).
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S.E.2d 666, 670 (1961) (holding that law in effect at time of
incapacity governs, not law in effect at time of death or time
award is made). The version of the statute in effect at that
time, Code § 65.1-52, the predecessor statute to present Code
§ 65.2-406, referred only to asbestosis, providing as follows:
For a first or an advanced stage of
asbestosis, if the employee is still
employed in the employment in which he was
injuriously exposed, the weekly compensation
rate shall be based upon the employee's
weekly wage as of the date of communication
of the first or advanced stage of the
disease, as the case may be. If the
employee is unemployed, or employed in
another employment, the weekly compensation
rate shall be based upon the average weekly
wage of a person of the same or similar
grade and character in the same class of
employment in which the employee was
injuriously exposed and preferably in the
same locality or community on the date of
communication to the employee of the
advanced stage of the disease.
Code § 65.1-52 (Repl. Vol. 1987 & 1989 Supp.) (emphasis added);
1985 Va. Acts, ch. 191; 1989 Va. Acts, ch. 502. Another portion
of Code § 65.1-52 then in effect, not directly related to the
enhanced compensation rate provisions, referred specifically to
both asbestosis and mesothelioma, making clear the legislature
recognized them as two separate diseases. See Code § 65.1-52(A)
(Repl. Vol. 1987 & 1989 Supp.).
Thus, both when Williams received his mesothelioma
diagnosis on January 20, 1988, and when this Court decided
Williams on June 19, 1990, the portion of Code § 65.1-52
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providing an alternate method for calculating an employee's
average weekly wage expressly applied only to employees
suffering from asbestosis, not to employees suffering from
mesothelioma. The legislature amended Code § 65.1-52 to include
both asbestosis and mesothelioma, but that amendment did not
take effect until July 1, 1990, see 1990 Va. Acts, ch. 417, 3
after issuance of the decision in Williams on June 19, 1990.
The Court's failure in Williams to apply the special method
for calculating average weekly wage set out in Code § 65.1-52
rather than the general method in Code § 65.1-6 4 may be explained
3
As amended in 1990, Code § 65.1-52 provided as follows:
For a first or an advanced stage of
asbestosis or diagnosis of mesothelioma, if
the employee is still employed in the
employment in which he was injuriously
exposed, the weekly compensation rate shall
be based upon the employee's weekly wage as
of the date of communication of the first or
advanced stage of the disease, as the case
may be. If the employee is unemployed, or
employed in another employment, the weekly
compensation rate shall be based upon the
average weekly wage of a person of the same
or similar grade and character in the same
class of employment in which the employee
was injuriously exposed and preferably in
the same locality or community on the date
of communication to the employee of the
advanced stage of the disease or diagnosis
of mesothelioma.
1990 Va. Acts, ch. 417. In its present version, former Code
§ 65.1-52, now § 65.2-406, refers to "a first or an advanced
stage of asbestosis or mesothelioma." 1995 Va. Acts, ch. 324.
4
This provision is now codified at § 65.2-101.
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by the fact that, under the version of Code § 65.1-52 in effect
at that time, the special average weekly wage provisions did not
apply to claimants suffering from mesothelioma. Thus, the
holding in Williams set out the method to be used for
determining average weekly wage for those employees suffering
from occupational diseases other than those affected by the
special average weekly wage provisions of Code § 65.1-52, which,
at the time, applied only to asbestosis. Even in that context,
the Court noted that Code § 65.1-6's provisions defining average
weekly wage "contain[] language which gives the commission some
latitude to determine what method" of calculation should be
used. Williams, 10 Va. App. at 520 n.2, 392 S.E.2d at 848 n.2.
To hold that Williams requires an award of permanent partial
disability benefits based on the average weekly wage claimant
earned twenty-six years before his asbestosis diagnosis would be
to render meaningless the special average weekly wage provisions
of Code § 65.2-406(C), which expressly apply to asbestosis, and
would do so unnecessarily.
Having concluded that Williams does not prevent application
of the average weekly wage provisions of Code § 65.2-406(C), I
would also reject employer's contention that these provisions do
not apply to claimants who are voluntarily retired. I see no
reason to interpret the Act to provide one method of calculating
average weekly wage for employees who have voluntarily retired
and another method for employees unemployed for any other reason
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as well as employees still working for the same or a different
employer. Rather, the more logical conclusion is that the
legislature intended to provide an alternate method of
calculation for all employees based on the type of occupational
disease from which they suffer, asbestosis or mesothelioma
resulting from industrial exposure to asbestos. As we noted in
discussing differences in the statutes of limitations for
various occupational diseases, the legislature has "recognized
that asbestosis is a progressive disease which may manifest
itself many years after the cessation of [the] employment" in
which the asbestos exposure occurred. Parris v. Appalachian
Power Co., 2 Va. App. 219, 221-22, 343 S.E.2d 455, 456 (1986)
(noting legislature's deletion of five-year statute of
limitations for asbestosis, leaving provision that claim is
timely if filed within two years of communication of diagnosis
to employee).
Interpreting Code § 65.2-406(C) as including all employees
with industrial asbestosis and mesothelioma compels the
conclusion that the "unemployed" include all those employees
voluntarily retired. Contrary to the argument of employer, such
an interpretation does not automatically entitle a voluntarily
retired claimant to temporary disability benefits. Code
§ 65.2-406(C) merely provides the method for calculating the
average weekly wage. A claimant seeking temporary or permanent
disability benefits must still prove an entitlement to those
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benefits under another portion of the Act. As the majority
opinion holds, a voluntarily retired claimant who is
"unemployed" within the meaning of Code § 65.2-406(C) when he
becomes temporarily disabled from an occupational disease is not
entitled to temporary disability benefits under the Act because
he has no wage loss. See, e.g., Newton v. Fairfax Police Dep't,
259 Va. 801, 804, 529 S.E.2d 794, 795 (2000). Nevertheless, a
voluntarily retired employee may be entitled to permanent
disability benefits under Code § 65.2-503, calculated at the
rate set out in Code § 65.2-406(C), because such benefits, as
explained by the majority opinion, are for the "loss of what
might be termed 'human capital.'" Morris v. Virginia Retirement
Sys., 28 Va. App. 799, 806, 508 S.E.2d 925, 929 (1999).
For these reasons, I would hold the commission erred in
calculating claimant's average weekly wage under Williams rather
than under the express terms of Code § 65.2-406(C). Thus, I
respectfully dissent from this portion of the majority opinion.
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