Oil Transport, Inc. v. Emma Jordan , 22 Va. App. 633 ( 1996 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Willis and Overton
Argued at Norfolk, Virginia
OIL TRANSPORT, INC. AND
TRAVELERS INSURANCE CO.
OPINION BY
v. Record No. 2385-95-1 JUDGE NELSON T. OVERTON
JULY 2, 1996
EMMA JORDAN
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
Michelle ReDavid Rack (Gregory R. McCracken;
Huff, Poole & Mahoney, P.C., on brief), for
appellants.
Sidney H. Kelsey, Jr. for appellee.
Emma Jordan was awarded benefits pursuant to Code
§§ 65.2-512(A)(2) and 65.2-515(A)(4) after her son was killed in
a work-related accident. Oil Transport and its insurer
(collectively "employer") appeal, contending that the evidence
before the Workers' Compensation Commission was insufficient to
support a finding of destitution as to Jordan. We agree with
employer, and we reverse the order of the commission and dismiss
the claim.
Jordan's son was killed in October 1992 in an accident
arising out of and in the course of his employment with Oil
Transport. The employer accepted the claim as compensable but
denied that Jordan was entitled to receive benefits as a
dependent of her son. A hearing was held before Deputy
Commissioner Lahne on April 26, 1995, to determine whether Jordan
was totally or partially dependent on the decedent. Jordan was
the sole witness.
Jordan had been living with her son when he was killed. She
testified that her son cashed his checks and gave her money to
pay the rent, utilities, and food. His weekly wage was $395.64
(approximately $1700 per month). Jordan's monthly income at the
time of her son's death was $636.08, comprising $420 from an
annuity and $216.08 from Social Security. Jordan testified that
her son claimed her as a dependant when he filed tax returns,
although she did not specify which years and no tax returns were
produced at the hearing. The deputy commissioner, after hearing
Jordan's testimony and reviewing the interrogatories, found that
Jordan was a parent in destitute circumstances as contemplated by
Code § 65.2-515(A)(4) and awarded benefits pursuant to Code
§ 65.2-512(A)(2). The full commission found that the record
supported the deputy commissioner's conclusion and affirmed the
award.
Code § 65.2-512 states in relevant part:
A. If death results from the 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, but not more than 100
percent of the average weekly wage of the
Commonwealth as defined in § 65.2-500 nor
less than 25 percent of the average weekly
wage as defined therein:
* * * * * * *
2. If there are no total dependents
pursuant to subdivision A 1, A 2, or A 3 of
§ 65.2-515, to those persons presumed to be
wholly dependent as set forth in subdivision
A 4 of § 65.2-515, and to those determined to
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be wholly dependent in fact, for a period of
400 weeks from the date of injury . . . .
Code § 65.2-515(A)(4) provides that "[p]arents in destitute
circumstances, provided 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 reasonably anticipated or inevitable financial
emergencies" is deemed "financially vulnerable" and, therefore,
destitute for the purposes of Code § 65.2-515(A)(4). Roanoke
Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 71, 455 S.E.2d 267,
272 (1995). This status is to be determined by the evidence
viewed at the time of the employee's death. Id.
Under these standards Jordan failed to meet her burden of
proving dependency, whether actual or as a result of being
financially vulnerable. Despite two sets of specific
interrogatories, Jordan refused to provide even approximate
dollar amounts of her son's contributions to her expenses. She
produced no tax returns, no documentation of bills being paid by
her son, nor any other tangible objective evidence of dependency.
Her testimony consisted solely of bald assertions that she was
dependent on her son's contributions. Jordan testified to no
reasonably anticipated or inevitable financial emergency at the
time of her son's death. The evidence of her financial position
at the time of her son's death was inadequate to classify her as
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financially vulnerable. Upon the record before us, we must
conclude that the commission had insufficient evidence to
determine that Jordan was in "destitute circumstances."
Employer also argues that the deputy commissioner erred in
excluding certain letters written by the decedent. Having
concluded that the claim should be dismissed on other grounds, we
do not reach the issue of the admissibility of the letters.
For the reasons set forth above, we reverse the commission's
decision and dismiss the claim.
Reversed and dismissed.
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