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NEWTON, et al. v. FAIRFAX COUNTY POLICE DEPT., et al.



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NEWTON, et al.

v.

FAIRFAX COUNTY POLICE
DEPT., et al.


April 21, 2000

Record No. 991124

ROBERT RUSSELL NEWTON (DECEASED), ET AL.

v.

FAIRFAX COUNTY POLICE DEPARTMENT/ FAIRFAX
COUNTY BOARD OF SUPERVISORS

FROM THE COURT OF APPEALS OF VIRGINIA

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan,
Koontz, and Kinser, JJ., and Stephenson, Senior Justice


OPINION BY SENIOR JUSTICE ROSCOE B. STEPHENSON,
JR.

In this appeal, we determine whether the Court
of Appeals erred in holding that the statutory beneficiaries of a
deceased claimant are not entitled to an award of indemnity
benefits under the Virginia Workers’ Compensation Act, Code
? 65.2-100 et seq. (the Act).

I

On July 23, 1996, the statutory beneficiaries
of Robert R. Newton (the Claimants) filed with the Workers’
Compensation Commission (the Commission) a claim for benefits
against the Fairfax County Police Department and the Fairfax
County Board of Supervisors (the Employer). The Claimants sought
compensation and medical and funeral expenses pursuant to Code
? 65.2-512 as a result of Newton’s death caused by an
occupational disease. The Employer accepted the claim as
compensable and paid the medical and funeral expenses. The
Employer, however, denied the claim for weekly indemnity
benefits.

A deputy commissioner and, thereafter, the full
commission decided that the Claimants were not entitled to
indemnity benefits because Newton had not received any wages in
the 52 weeks preceding both his death and the date of the
communication of the diagnosis of the disease.

On April 27, 1999, in an unpublished opinion,
the Court of Appeals affirmed the Commission’s decision.
[1] We awarded this appeal, finding
that the case has significant precedential value. Code
? 17.1-410 (formerly Code ? 17-116.07).

II

The facts are undisputed. Newton had worked for
the Fairfax County Police Department for 21 years when, on
December 11, 1993, he voluntarily retired. On May 23, 1996,
Newton had received a communication of the diagnosis of heart
disease, an occupational disease, and, on June 9, 1996, he
suffered a fatal heart attack.

Newton had not sought employment during the
52-week periods preceding both the date of the communication of
his diagnosis and the date of his death, and he had received no
earnings from employment during those 52-week periods. During his
retirement, Newton had received a monthly benefit of $2,459.44.
Upon Newton’s death, the monthly benefit payable to his wife
decreased to $1,329.17. Each minor child received a monthly
benefit of $531.66.

III

Code ? 65.2-512(A) of the Act provides,
in pertinent part, that, "[i]f death results from [an] accident within nine years, the employer shall pay
. . . compensation in weekly payments equal to 66 2/3
percent of the employee’s average weekly wages." Code
? 65.2-101 defines "average weekly wage" to mean,
in relevant part, "[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." With respect to
claims based upon occupational disease, Code ? 65.2-403(A)
provides that the date of the "first communication of the
diagnosis of an occupational disease to the employee or death of
the employee resulting from an occupational disease
. . . shall be treated as the happening of an injury by
accident."

In denying the Claimants indemnity benefits,
the Court of Appeals relied upon its holding in Arlington
County Fire Dept.
v. Stebbins, 21 Va. App. 570, 466
S.E.2d 124 (1996). In Stebbins, the Court of Appeals held
that a firefighter, who was disabled from heart disease, was not
entitled to compensation for lost wages because he had earned no
wages during the 52 weeks preceding his total incapacity. The
Court explained that the average weekly wage is calculated in
order to approximate the economic loss sustained by an employee
suffering from a work-related injury or by his statutory
beneficiaries in the case of his work-related death. Thus, the
Court stated, "[c]ompensation is ultimately dependent upon
and determined on the loss of wages." Id. at 573, 466
S.E.2d at 126.

The Court of Appeals found the present case to
be indistinguishable from Stebbins. The Court concluded
that, "[w]hether 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." In either event, the Court concluded, "the
determination of the amount of any indemnity benefits due the
employee or his . . . 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." We agree.

Newton had voluntarily removed himself from
employment more than two years before his death, and he was not
even looking for work at the time of his death. As with the
employee in Stebbins, Newton had earned no wages during
the 52 weeks preceding the date of the communication of the
diagnosis of his occupational disease, and, therefore, there was
no economic loss.

The Claimants contend, however, that the Court
of Appeals’ holdings in Stebbins and the present case are
"in clear conflict with the intent of the Workers’
Compensation Act." They assert that, with respect to an
occupational disease, the General Assembly intended the
average-weekly-wage award to be based upon the wages received
from the employment in which the employee was last exposed to the
harmful element. Thus, according to the Claimants, their
indemnity award should be based on the wages earned by Newton in
the 52 weeks preceding the date he retired from the police
department. In support of their contention, the Claimants rely
upon Roller v. Basic Construction Co., 238 Va. 321,
384 S.E.2d 323 (1989), and C & P Telephone Co. v. Williams,
10 Va. App. 516, 392 S.E.2d 846 (1990).

Roller is inapposite. There, we did not
consider the issue that is before us in the present case. The
sole issue in Roller was whether a claimant’s right to
benefits was barred by the statute of limitations.

Williams is distinguishable in that, in Williams,
the employee earned wages during the 52-week period prior to the
date of the communication to him of the diagnosis of his
occupational disease. Therefore, the employee had sustained an
economic loss at the time of the termination of his employment,
which occurred shortly before his diagnosis. Moreover, the sole
issue considered by the Court of Appeals was whether the
Commission erred in the computation of the employee’s average
weekly wage; the employer did not challenge the employee’s
entitlement to benefits.
[2]

We hold, therefore, that the 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. Accordingly, the judgment of the Court of
Appeals will be affirmed.

Affirmed.

 

FOOTNOTES:

[1] Robert Russell Newton, et al.
v. Fairfax County Police Department/Fairfax County Board of
Supervisors
, Record No. 1672-98-4.

[2] We express no opinion whether, in
Williams, the Court of Appeals was correct in holding that
the Commission did not err in its calculation.

 

 

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