COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia
ROBERT RUSSELL NEWTON,
KATHLEEN HONEY NEWTON,
ROBERT RUSSELL NEWTON, JR.,
AND MISTY NICOLE NEWTON
MEMORANDUM OPINION * BY
v. Record No. 1672-98-4 JUDGE CHARLES H. DUFF
APRIL 27, 1999
FAIRFAX COUNTY POLICE DEPARTMENT/
FAIRFAX COUNTY BOARD OF SUPERVISORS
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michael A. Kernbach (Jack T. Burgess &
Associates, P.C., on brief), for appellants.
Ann Gouldin Killalea, Assistant County
Attorney, (David P. Bobzien, County Attorney;
Robert Lyndon Howell, Deputy County Attorney,
on brief), for appellee.
Robert Russell Newton ("deceased employee"), Kathleen Honey
Newton (widow), Robert Russell Newton, Jr. (son), and Misty Nicole
Newton (daughter) (hereinafter referred to as "the statutory
beneficiaries") appeal a decision of the Workers' Compensation
Commission ("commission") denying their claim for benefits. The
statutory beneficiaries contend that the commission erred in
finding that this Court's holding in Arlington County Fire Dept.
v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124 (1996), precluded an
*
Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
award of indemnity benefits to them pursuant to Code § 65.2-512,
where the deceased employee had voluntarily retired and earned no
wages during the fifty-two weeks immediately preceding his death
or within the fifty-two weeks immediately preceding the
communication of the diagnosis of the occupational disease
resulting in his death. Because we find that Stebbins is
dispositive of this case, we affirm the commission's decision.
The facts are undisputed. The deceased employee worked for
Fairfax County Police Department ("employer") for twenty-one years
before retiring on December 11, 1993. On June 9, 1996, the
deceased employee suffered a fatal heart attack. On July 23,
1996, the statutory beneficiaries filed a claim for benefits
alleging an occupational heart disease. Employer stipulated that
the claim was compensable under the presumption provided in Code
§ 65.2-402 and accepted responsibility for medical and funeral
expenses. However, employer denied responsibility for weekly
indemnity benefits.
On March 31, 1998, the parties stipulated to these additional
facts:
1. The deceased [employee] received a
communication of an occupational disease,
heart disease, on or about May 23, 1996.
2. The deceased [employee] was not seeking
employment within the 52 weeks preceding the
date of communication of the diagnosis of the
occupational disease or the date of death.
3. The deceased [employee] received no
earnings from employment during the 52 weeks
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preceding the date of communication of the
diagnosis of the occupational disease or the
date of death. The deceased [employee] had
voluntarily retired on December 11, 1993 and
was receiving a monthly retirement benefit in
the amount of $2,459.44. Upon his death, the
monthly retirement benefit decreased to
$1,329.17, payable to his wife, and $531.66
to each minor child.
In denying the statutory beneficiaries' claim for indemnity
benefits, the commission found as follows:
The purpose of weekly compensation benefits
for temporary total or temporary partial
disability is wage replacement. The weekly
benefits to an injured worker directly relate
to his earnings. Similarly, the purpose of
the weekly compensation death benefits, based
on the decedent's average weekly wage, is to
replace the wages lost to the dependents as a
result of the death. Accordingly, the weekly
benefits directly relate to the decedent's
earnings, just as the benefits to an injured
employee directly relate to his earnings. In
the case of death benefits, the statutory
dependents' eligibility for the benefits
pursuant to Code § 65.2-512 are based on the
relationship between the decedent and the
dependents. These benefits are not abrogated
by the fact that the decedent may not have
had a wage loss. Only the amount of the
benefits are affected by the apparent lack of
wage loss. Thus, the dependents may receive
the burial and transportation expenses
provided by the statute. However, pursuant
to the reasoning in Stebbins, no indemnity
benefits should be awarded if the decedent
had no income for the 52 weeks preceding the
communication of the diagnosis.
Code § 65.2-512(A) provides that "[i]f death results from
[an] accident within nine years, the employer shall pay, or
cause to be paid, compensation in weekly payments equal to 66
2/3 percent of the employee's average weekly wages . . . ."
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Code § 65.2-101 defines "average weekly wage" to mean "[t]he
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 . . . ." In occupational disease cases,
the date of the first communication of the diagnosis of the
occupational disease or death resulting from the occupational
disease is treated as the happening of an injury by accident.
See Code § 65.2-403.
In Stebbins, this Court held that a firefighter disabled
from heart disease was not entitled to compensation for lost
wages where he earned no wages during the fifty-two weeks
preceding his total incapacity. See Stebbins, 21 Va. App. at
573, 466 S.E.2d at 126. In Stebbins, we recognized that
[t]he 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 a
work-related injury or death." Compensation
is ultimately dependent upon and determined
on the loss of wages.
Id. (citations omitted).
The commission's decision is fully supported by our holding
in Stebbins. Based on the facts of this case, the deceased
employee, similar to Stebbins, "suffered no loss of wages nor
any economic loss." Id. at 574, 466 S.E.2d at 126. Thus, "[a]n
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award of compensation in these circumstances would result in a
windfall to [the statutory beneficiaries] . . . ." Id.
Here, the deceased employee voluntarily retired in 1993.
He was not employed at the time of his death. He had not earned
wages during the fifty-two weeks immediately preceding the
communication of the diagnosis of his occupational disease or
during the fifty-two weeks immediately preceding his death. In
addition, he was not actively seeking employment at the time of
his death. We find no basis upon which to distinguish this case
from Stebbins. Whether the employee became totally disabled due
to an occupational disease after voluntary retirement, as in
Stebbins, or whether the employee died due to an occupational
disease after voluntary retirement, as in this case, does not
alter the outcome. Under either scenario, the determination of
the amount of any indemnity benefits due the employee or his or
her statutory beneficiaries would be based upon the employee's
average weekly wage for the fifty-two weeks preceding the
communication of the diagnosis of his occupational disease or
his death as a result of that disease. In this case, the
parties stipulated that the deceased employee had no such wages
and he was not actively seeking employment at the time of his
death. Therefore, he had no average weekly wage upon which to
base an award of indemnity benefits.
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Based upon the facts of this case and our holding in
Stebbins, 1 we cannot find that the commission erred in denying
the statutory beneficiaries' claim for indemnity benefits.
Accordingly, we affirm the commission's decision. 2
Affirmed.
1
We note that the General Assembly has not amended the
Workers' Compensation Act so as to negate the Stebbins decision.
2
Appellants have filed a "Motion for En Banc Review." We
deny that motion.
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