Anthony Leon Clark, etc. v. Langhorne Brothers, Inc ( 2000 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia
ANTHONY LEON CLARK (DECEASED),
BY AND THROUGH ODELL T. CLARK
MEMORANDUM OPINION* BY
v. Record No. 0695-00-3 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 14, 2000
LAWHORNE BROTHERS, INC. AND
PENNSYLVANIA MANUFACTURING ASSOCIATION
INSURANCE COMPANY
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Arelia S. Langhorne for appellant.
Frederick T. Schubert, II (Steven H. Theisen;
Midkiff & Hiner, P.C. on brief), for
appellees.
Anthony Leon Clark ("the decedent"), by and through
Odell T. Clark ("Odell"), his mother, contends that the Workers'
Compensation Commission ("commission") erred in finding that
(1) Odell failed to prove that she was conclusively presumed to
be wholly dependent upon the decedent, as a parent in destitute
circumstances within the meaning of Code § 65.2-515(A)(4);
(2) Odell failed to prove that she was wholly dependent on
decedent within the meaning of Code § 65.2-516; and (3) on
review before the full commission, Odell waived her contention
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that she was at least partially dependent on the decedent within
the meaning of Code § 65.2-516. For the reasons that follow, we
disagree and affirm the decision of the commission.
I. Parent in Destitute Circumstances
On appeal, "we review the evidence in the light most
favorable to the prevailing party." R.G. Moore Bldg. Corp. v.
Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).
"[T]he fact that contrary evidence may
be found in the record is of no consequence
if credible evidence supports the
commission's finding." We further recognize
that findings concerning the status of
presumptive dependents are factual
determinations.
However, the principal issues raised by
this appeal relate not to the factual
findings of the commission, but to its
application of the law to those findings.
Accordingly, these issues are mixed
questions of law and fact. [Thus], while we
must defer to the factual findings of the
commission with respect to [Odell's]
finances and work capacity, we review de
novo the commission's application of the law
to those findings in determining whether she
was destitute.
Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 67-68, 455
S.E.2d 267, 270-71 (1995) (citations omitted).
The commission made the following findings:
The evidence shows that [Odell]
receives $470.00 per month in social
security benefits [, which is excluded from
consideration of her destitute circumstances
pursuant to Id. at 68-69, 455 S.E.2d at
271]. She has no other income at this time
but before her son's death, she was working
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twenty hours per week despite her alleged
diagnosed high blood pressure.
[Odell] did not prove that she was
incapacitated for other employment. She
presented no medical evidence that her high
blood pressure prevented her from holding a
job or that she in fact looked for work
following her son's death. She owns a car
and a home valued at $100,000 in which she
has a 70% equity. She has no dependents and
has not proven that she does not have
earning potential.
In Oil Transport, Inc. v. Jordan, 22 Va. App. 633, 472
S.E.2d 291 (1996), we noted that
Code § 65.2-515(A)(4) provides that
"[p]arents in destitute circumstances,
provided that there be no total dependents
pursuant to other provisions of this
section," are "conclusively presumed to be
dependents wholly dependent for support upon
the deceased employee." A parent with "only
the earning potential sufficient to provide
no more than a bare existence with no
resources to provide against anticipated or
inevitable financial emergencies" is deemed
"financially vulnerable" and, therefor,
destitute for the purposes of Code
§ 65.2-515(A)(4). This status is to be
determined by the evidence viewed at the
time of the employee's death.
Id. at 636, 472 S.E.2d at 292 (citations omitted) (emphasis
added). "[T]he determination of whether a parent is in
destitute circumstances depends upon various factors, including
earnings or earning potential, amount of assets, health, age,
level of formal education, and number of dependents." Roanoke
Belt, 20 Va. App. at 73, 455 S.E.2d at 273 (emphasis added).
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Applying these criteria to the facts of this case, we find
that the commission did not err in concluding that Odell was not
a parent in destitute circumstances. At the time of the
decedent's death, Odell was sixty-three years old and worked
twenty hours per week cleaning offices for ServiceMaster.
During the month prior to decedent's death, she earned $467.
There is no evidence that she worked or sought employment after
decedent's death. She presented no medical evidence to
substantiate her claim that her "palpitations, high blood
pressure and emotional state" prevented her from working.
Furthermore, she owns a four-bedroom home and two acres of land
in which she has a substantial equity and has no dependents to
support. Finally, she offered no documentary evidence to
substantiate her claim that the decedent gave her money toward
her monthly expenses, and she did not testify to any anticipated
or inevitable financial emergency.
II. Actual Dependency
"Code § 65.2-516 provides that 'questions of
[non-presumptive] dependency in whole or in part shall be
determined in accordance with the facts as [they existed] at the
time of the accident; but no allowance shall be made for any
payment in lieu of board and lodging or services.'" Id. at 74,
455 S.E.2d at 274.
In rejecting Odell's claim that she was actually dependent
upon the decedent, the commission ruled that the payments she
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received, if any, were for room and board, and could not be used
for the purpose of establishing dependency.
This factual finding is supported by the record. The
decedent began living with Odell in March, 1998. While Odell
testified in her deposition that the money decedent gave her was
to pay her bills and for food, she had previously testified in
her deposition that the money was for room and board. Moreover,
Odell produced no documentation to substantiate any contribution
decedent may have made.
Based upon this record, we cannot find that the commission
erred in concluding that Odell failed to prove that she was
actually dependent upon the decedent.
III. Partial Dependency
Odell argues that the commission erred in finding that she
waived any issue of partial dependency. She suggests that her
statement that "Anthony continued to help support his mother; he
gave her $75.00 to $100.00 a week which helped to pay her bills"
was sufficient to raise the issue. We disagree.
The record is clear that Odell raised no issue in her
statement before the commission other than that she was a parent
in destitute circumstances. She neither briefed nor argued the
issue of partial dependency before the commission. Accordingly,
we find that the commission did not abuse its discretion in
finding that Odell waived the issue of whether she was entitled
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to death benefits for partial dependency pursuant to Code
§ 65.2-516. See generally Russell Stover Candies v. Alexander,
30 Va. App. 812, 824 n.3, 520 S.E.2d 404, 410 n.3 (1999).
For these reasons, we affirm the decision of the
commission.
Affirmed.
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