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DEATH AND DEPENDENTS

Code Sec. 65.2-512 sets forth the benefits payable and to whom upon the death of an employee.

To whom death benefits payable under Code Sec. 65.2-512 (A):

First, to those conclusively presumed under Code Secs. 65.2-515 (A)(1)-(A)(3) to be total dependents (spouses and children as specified); and if none,

Second, to those conclusively presumed under Code Sec. 65.2-515 (A)(4) to be total dependents (destitute parents as specified), and to persons totally dependent in fact; and if none,

Third, to partial  dependents in fact.

Burial Expenses payable under Code Sec. 65.2-512 (B): Not exceeding $10,000 and deceased's transportation expenses not exceeding $1,000.

Code Sec. 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 Sec. 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.   

Retirement and Indemnity Benefits. In Arlington County Fire Dept. v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124 (1996), the Court of  Appeals 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, the court 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). 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. Robert Russell Newton, et al. v Fairfax Co. Police Department, Record No. 1672-98-4 (April 27, 1999). WP Version.

An employee's statutory dependents are entitled to claim the employee's scheduled permanent partial loss benefits under Code Sec. 65.2-503 (B) for loss of both arms and legs, when the deceased employee was still under an award for temporary total incapacity and had claimed neither permanent total nor permanent partial incapacity before his death from unrelated causes. Although eligible for permanent total incapacity benefits under Code Sec. 65.2-503 (C) for the loss of both arms and both legs, the employee never claimed those benefits and was under the temporary total incapacity award at the time of his death. Code Sec. 65.2-511 provides as follows: When an employee received or is entitled to compensation under this title for an injury covered by Sec. 65.2-503 and dies from a cause other than the injury for which he was entitled to compensation, payment of the unpaid balance of compensation shall be made to his statutory dependents under this chapter, in lieu of the compensation the employee would have been entitled to had he lived. Code Sec. 65.2-511.  Code Sec. 65.2-511 includes claims under Code Sec. 65.2-503 for "scheduled" benefits to which a claimant "is entitled" prior to death even though benefits had not been actually awarded under Code Sec. 65.2-503. See, e.g., Jarvis v. Gale, 20 O.I.C. 310, 312 (1938) (holding that dependents could claim employee's scheduled benefits for partial disability even though employee had made no efforts to claim them before he died). Although the employee, as a quadriplegic, could have qualified for permanent and total incapacity benefits under Code Sec. 65.2-503 (C), he also could have qualified for and would have been "entitled" to scheduled benefits under Code Sec.65.2-503(B). Because the employee would have been "entitled" to an award of scheduled benefits at the time of his death, his statutory dependents were entitled under Code Sec. 65.2-511 to the balance of benefits to which Flood would have been entitled under Code Sec. 65.2-503 (B). Thomas Refuse Service v. Kendell M. Flood, Record No. 1655-98-2 (June 8, 1999). WP Version.

The commission did not err in finding that (1) the decedent, a cab driver, left the scope of his employment and the protection of the Workers' Compensation Act ("the Act") when he broke employer's rules; and (2) the presumption contained in Southern Motor Lines v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), was not applicable to this case. A claimant must prove that an injury arose out of and in the course of his employment to qualify for any benefits under the Act. See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380, 410 S.E.2d 646, 647 (1991). An act is within the scope of the employment relationship if "(1) it be something fairly and naturally incident to the business, and (2) if it be done while the servant was engaged upon the master's business and be done, although mistakenly or ill-advisedly, with a view to further the master's interests, or from some impulse or emotion which naturally grew out of or was incident to the attempt to perform the master's business, and did not arise wholly from some external, independent, and personal motive on the part of the servant to do the act upon his own account." Smith v. Landmark Communications, Inc., 246 Va. 149, 151-52, 431 S.E.2d 306, 307-08 (1993) (citations omitted). Employer's written rules required that its cab drivers obey the dispatcher's instructions regarding picking up passengers at a designated location and that they were not permitted to pick up passengers unless assigned by the dispatcher or located at a cab stand. Credible evidence also established that the decedent was made aware of employer's rules before his death. Decedent disregarded his dispatcher's instructions and picked up two passengers who flagged him down. The commission could reasonably conclude that the decedent was not engaged in an activity fairly and naturally incidental to employer's business immediately prior to his death. Rather, the evidence permitted the inference that the decedent broke employer's rules and removed himself from the scope of his employment before his death, regardless of what occurred thereafter. Claimant's evidence did not prove as a matter of law that the decedent was acting in the course of his employment at the time of his death. In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735 (1958), the Supreme Court recognized the following presumption: [W]here an employee is found dead as the result of an accident at his place of work or near-by, where his duties may have called him during the hours of his work, and there is no evidence offered to show what caused the death or to show that he was not engaged in his master's business at the time, the court will indulge the presumption that the relation of master and servant existed at the time of the accident and that it arose out of and in the course of his employment. Id. at 171-72, 104 S.E.2d at 738. However, "[w]here liability is imposed on the employer on presumptive evidence to the effect that the death arose out of the employment, there must be an absence of contrary or conflicting evidence on the point and the circumstances which form the basis of the presumption must be of sufficient strength from which the only rational inference to be drawn is that death arose out of and in the course of the employment." Winegar v. Int'l Telephone & Telegraph, 1 Va. App. 260, 263, 337 S.E.2d 760, 761 (1985) (quoting Hopson v. Hungerford Coal Co., 187 Va. 299, 305, 46 S.E.2d 392, 395 (1948)). In this case, contrary and conflicting evidence existed with respect to the circumstances surrounding the decedent's death. Credible evidence supports the commission's inference that prior to the decedent's death, he left the scope of his employment when he willfully violated employer's rules and went on a frolic of his own. That is, the decedent was not "where his duties . . . called him" at the time of his death, rendering the presumption inapplicable. Here, unlike Alvis, credible evidence supports the rational inference that the decedent's death did not occur in the course of or arise out of his employment. Accordingly, the commission did not err in refusing to apply the Alvis presumption. Karen D. Mallory v. William Tyler, UEF, Record No. 1226-99-2 (January 27, 2000). WP Version.

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