Arlington County Fire Dept. v. Stebbins, 1199-95-4

• Decision Date: 30 January 1996
• Docket Number: No. 1199-95-4,1199-95-4
• Citation: 466 S.E.2d 124,21 Va.App. 570
• Court: Virginia Court of Appeals
• Parties: ARLINGTON COUNTY FIRE DEPARTMENT v. David W. STEBBINS. Record

Page 124

466 S.E.2d 124

21 Va.App. 570

ARLINGTON COUNTY FIRE DEPARTMENT v. David W. STEBBINS.

Record No. 1199-95-4.

Court of Appeals of Virginia,

Alexandria.

Jan. 30, 1996.

Anthony P. Hudgins, Assistant County Attorney (Barbara S. Drake, County Attorney, on briefs), for appellant.

Laurie D. Waters, Fairfax (Michael A. Kernbach; Jack T. Burgess & Associates, P.C., on brief), for appellee.

Present: WILLIS, ANNUNZIATA and OVERTON, JJ.

OVERTON, Judge.

In this appeal we consider whether a claimant who has been voluntarily retired and unemployed for the preceding fifty-two weeks may be awarded compensation for lost wages while recovering from a work-related disease. We hold that he may not, and we reverse the decision of the commission.

David Stebbins was employed as a firefighter and a paramedic for the Arlington County Fire Department until his voluntary retirement in February, 1992. Since that time, he has not worked full-time in any position; he has only worked as a part-time doorman at a local bar and as a volunteer at a small store. The record contains no evidence of any income from these activities.

From June 2 to October 7, 1994, Stebbins was incapacitated due to heart disease and subsequent corrective surgery. ¹ Stebbins applied for lost wages and medical benefits for this period, claiming total work incapacity. The commission awarded him compensation for total work incapacity at a weekly rate of $451. The commission based this amount on Stebbins' salary before he retired in 1992 or a similar fire department employee's salary in 1994, both of which were higher than the maximum compensation rate. Arlington County appeals the award of lost wages on the ground that Stebbins was neither employed nor seeking employment and therefore lost no actual income.

The purpose of the Workers' Compensation Act is to compensate employees when they lose an opportunity to engage in work after suffering work-related injuries. Potomac Edison Co. v. Cash, 18 Va.App. 629, 631, 446 S.E.2d 155, 156 (1994). Based on this purpose, the Act compensates injured employees for loss of earning capacity. Bosworth v. 7-Up Distrib. Co., 4 Va.App. 161, 163, 355 S.E.2d 339, 340 (1987). When an employee becomes totally incapacitated, the employer must pay during the period of incapacity a weekly compensation based on the employee's average weekly wage. Code § 65.2-500. The average weekly wage is defined as:

The 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.

Code § 65.2-101(1)(a). ²

Under this formula, Stebbins is entitled to no compensation because he reported no earnings for the preceding fifty-two weeks. The 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 work-related injury or death." Bosworth, 4 Va.App. at 163, 355 S.E.2d at 340. Compensation is ultimately dependent upon and determined on the loss of wages. Twenty-First Century Concrete, Inc. v. Giacchina, 20 Va.App. 326, 331, 457 S.E.2d 379, 381 (1995) (allowing compensation for actual lost wages for a claimant who had authority to draw wages but did not because he did not work); Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 529, 531 (1954).

Stebbins suffered no loss of wages nor any economic loss. An award of compensation in these circumstances would result in a windfall to Stebbins and place him in a better economic position than he would have enjoyed absent an injury. This outcome ignores the purpose of the Act, moving beyond compensation for loss of work ability and becoming a reward for intangible damages. "A proceeding under the Act is not one for damages for a wrong done, but to obtain compensation for a loss sustained by reason of injury and disability." Dillard v. Industrial Comm'n, 347 F.Supp. 71, 73 (E.D.Va.1972), vacated on other grounds, 416 U.S. 783, 94 S.Ct....