COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Overton
Argued at Alexandria, Virginia
ARLINGTON COUNTY FIRE DEPARTMENT
v. Record No. 1199-95-4 OPINION BY
JUDGE NELSON T. OVERTON
DAVID W. STEBBINS JANUARY 30, 1996
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Anthony P. Hudgins, Assistant County Attorney
(Barbara S. Drake, County Attorney, on
briefs), for appellant.
Laurie D. Waters (Michael A. Kernbach; Jack T.
Burgess & Associates, P.C., on brief), for
appellee.
In this appeal we consider whether a claimant who has been
voluntarily retired and unemployed for the preceding fifty-two
weeks may be awarded compensation for lost wages while recovering
from a work-related disease. We hold that he may not, and we
reverse the decision of the commission.
David Stebbins was employed as a firefighter and a paramedic
for the Arlington County Fire Department until his voluntary
retirement in February, 1992. Since that time, he has not worked
full-time in any position; he has only worked as a part-time
doorman at a local bar and as a volunteer at a small store. The
record contains no evidence of any income from these activities.
From June 2 to October 7, 1994, Stebbins was incapacitated
1
due to heart disease and subsequent corrective surgery.
1
The commission found that Stebbins was entitled to the
heart/lung presumption provided for firefighters pursuant to Code
§ 65.2-402(B). The employer does not raise this issue on appeal.
Stebbins applied for lost wages and medical benefits for this
period, claiming total work incapacity. The commission awarded
him compensation for total work incapacity at a weekly rate of
$451. The commission based this amount on Stebbins' salary
before he retired in 1992 or a similar fire department employee's
salary in 1994, both of which were higher than the maximum
compensation rate. Arlington County appeals the award of lost
wages on the ground that Stebbins was neither employed nor
seeking employment and therefore lost no actual income.
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. Potomac Edison Co.
v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155, 156 (1994). Based
on this purpose, the Act compensates injured employees for loss
of earning capacity. Bosworth v. 7-Up Distrib. Co., 4 Va. App.
161, 163, 355 S.E.2d 339, 340 (1987). When an employee becomes
totally incapacitated, the employer must pay during the period of
incapacity a weekly compensation based on the employee's average
weekly wage. Code § 65.2-500. The average weekly wage is
defined as:
The earnings of the injured employee in
the employment in which he was working at the
time of the injury during the period of
fifty-two weeks immediately preceding the
date of the injury, divided by fifty-two.
Code § 65.2-101(1)(a). 2
2
The section also contains alternative methods of
calculating an average weekly wage in special circumstances.
When the employment prior to the injury extended
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Under this formula, Stebbins is entitled to no compensation
because he reported no earnings for the preceding fifty-two
weeks. The result from this strict reading of the statute
comports with the rationale found in prior Virginia cases. "The
reason for calculating the average weekly wage is to approximate
the economic loss suffered by an employee or his beneficiaries
when there is a loss of earning capacity because of work-related
injury or death." Bosworth, 4 Va. App. at 163, 355 S.E.2d at
340. Compensation is ultimately dependent upon and determined on
the loss of wages. Twenty-First Century Concrete, Inc. v.
Giacchina, 20 Va. App. 326, 331, 457 S.E.2d 379, 381 (1995)
over a period of less than fifty-two weeks, the
method of dividing the earnings during that period
by the number of weeks and parts thereof during
which the employee earned wages shall be followed,
provided that results fair and just to both
parties will be thereby obtained. When, by reason
of a shortness of time during which the employee
has been in the employment of his employer or the
casual nature or terms of his employment, it is
impractical to compute the average weekly wages as
above defined, regard shall be had to the average
weekly amount which during the fifty-two weeks
previous to the injury was being earned by a
person of the same grade and character employed in
the same class of employment in the same locality
or community.
b. When for exceptional reasons the foregoing
would be unfair either to the employer or
employee, such other method of computing average
weekly wages may be resorted to as will most
nearly approximate the amount which the injured
employee would be earning were it not for the
injury.
Code § 65.2-101(1)(a-b). The facts in this case do not justify
resort to any of these alternative formulae.
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(allowing compensation for actual lost wages for a claimant who
had authority to draw wages but did not because he did not work);
Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d
529, 531 (1954).
Stebbins suffered no loss of wages nor any economic loss.
An award of compensation in these circumstances would result in a
windfall to Stebbins and place him in a better economic position
than he would have enjoyed absent an injury. This outcome
ignores the purpose of the Act, moving beyond compensation for
loss of work ability and becoming a reward for intangible
damages. "A proceeding under the Act is not one for damages for
a wrong done, but to obtain compensation for a loss sustained by
reason of injury and disability." Dillard v. Industrial Comm'n,
347 F. Supp. 71, 73 (E.D. Va. 1972), vacated on other grounds,
416 U.S. 783 (1974).
Stebbins argues that his retired status should not preclude
him from receiving compensation. For this proposition he cites,
as does the commission below, Revard v. Fairfax County Bd. of
Supervisors, 70 O.I.C. 154 (1991). His argument fails to address
the issue squarely. Stebbins' status does not defeat his claim;
his lack of income does. Had Stebbins, as a retired firefighter,
been employed at the time of his incapacity, he would have been
entitled to compensation. Stebbins may have been entitled to
compensation if he had even been actively seeking employment on
the basis of lost earning capacity. Neither of these situations
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comes before the Court. The record before us demonstrates that
Stebbins had no income for the preceding fifty-two weeks and that
he was not attempting to earn income at the time of his
incapacity.
Based on these facts, Stebbins cannot receive compensation
for the period of his total incapacity. The award of the
commission is vacated.
Vacated.
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