Newton v. Fairfax County Police Department , 259 Va. 801 ( 2000 )

PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice
ROBERT RUSSELL NEWTON (DECEASED), ET AL.
OPINION BY
v. Record No. 991124 SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
April 21, 2000
FAIRFAX COUNTY POLICE DEPARTMENT/
FAIRFAX COUNTY BOARD OF SUPERVISORS
FROM THE COURT OF APPEALS OF VIRGINIA
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On April 27, 1999, in an unpublished opinion, the Court of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
1
Robert Russell Newton, et al. v. Fairfax County Police
Department/Fairfax County Board of Supervisors, Record No. 1672-
98-4.
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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
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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
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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,
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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.
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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