Chesapeake & Potomac Telephone Co. v. Williams

• Decision Date: 19 June 1990
• Docket Number: No. 0329-89-3,0329-89-3
• Citation: 10 Va.App. 516,392 S.E.2d 846
• Court: Virginia Court of Appeals
• Parties: CHESAPEAKE & POTOMAC TELEPHONE COMPANY v. Archie S. WILLIAMS. Record

Page 846

392 S.E.2d 846

10 Va.App. 516

CHESAPEAKE & POTOMAC TELEPHONE COMPANY v. Archie S. WILLIAMS.

Record No. 0329-89-3.

Court of Appeals of Virginia.

June 19, 1990.

Eric J. Berghold (William L. Carey, Miles & Stockbridge, Fairfax, on brief), for appellant.

Peter C. Burnett (Burnett & Williams, on brief), for appellee.

Present: BAKER, COLEMAN and DUFF, JJ.

BAKER, Judge.

Chesapeake & Potomac Telephone Company (C & P) appeals from an Industrial Commission (commission) decision which awarded Archie S. Williams (claimant) temporary total compensation due to mesothelioma caused by exposure to asbestos while claimant was employed by C & P. The award of $344 per week equals two-thirds of the average weekly wage that claimant earned during the last year of his employment with C & P. C & P asserts that the commission should have based the award on an average weekly wage of $215.73, the amount that claimant was earning while working for Frederick County Electric Company (FCE). We disagree and affirm the commission's award.

In determining its award, the commission construed Code § 65.1-6 to require that it use the wages earned during the fifty- two weeks claimant was last actually exposed to asbestos by his employment with C & P. The commission placed particular importance on the phrase "time of injury" in Code § 65.1-6, the statute that defines average weekly wages, as contrasted to the phrase "injury by accident" in Code § 65.1-49, the statute of limitations section for occupational diseases. The commission reasoned that the General Assembly purposely used the phrase "time of injury" to mean that the award should reflect the wages at the time of exposure and actual injury. Thus, the commission ruled that the time of injury for purposes of the average weekly wage is different than the date of injury for the purposes of the statute of limitations, as provided in Code § 65.1-49.

On appeal, C & P argues that the commission erred since the Workers' Compensation Act should be read as a whole. Thus, it asserts, Code §§ 65.1-6 and 65.1-49, when read in conjunction, mandate that the wages the claimant was earning at FCE form the average weekly wage since those were his wages at the time and date of the injury as fixed by the statutes. Additionally, C & P asserts that the commission incorrectly determined that claimant's average weekly wage while employed for C & P most nearly approximated the wages that claimant would be earning if he had not been exposed to asbestos, since the purpose of the Act is to cover the future earnings. We agree with the holding of the commission.

The facts are not in dispute. Claimant worked for C & P for thirty-five years, during which time he was repeatedly exposed to asbestos. The average weekly wage of his last fifty-two weeks of employment with C & P was $585. After his retirement from C & P, claimant worked as a regular, part-time electrician for FCE at an average weekly wage of $215.73. Claimant worked only thirty-five of the fifty-two weeks immediately preceding the termination of his employment with FCE, which occurred shortly before he was diagnosed as having mesothelioma. ¹ The disease was determined to be causally related to his exposure to asbestos during the course of his employment with C & P and C & P treated the claim as compensable. See Code § 65.1-50.

The date on which the diagnosis of an occupational disease is made and first communicated to the employee is treated as the date of injury and as the happening of an injury by accident. The rights and liabilities of the parties vest and accrue on that date. See Code § 65.1-49; Island Creek Coal Co. v. Breeding, 6 Va.App. 1, 9-10, 365 S.E.2d 782, 787 (1988). The date of communication of the disease has been selected as the date of the injury for statute of limitations purposes because occupational diseases develop over time into compensable injuries and claimants cannot point to a single date as the date on which he was injured. Cooper v. Mary E. Coal Corp., 215 Va. 806, 808, 214 S.E.2d 162, 164 (1975). Neither the statute nor Cooper require that the date of the diagnosis and communication determines the period which will be used to calculate average weekly earnings.

Code § 65.1-6(A)(1) provides that, "[u]nless the context otherwise requires, 'average weekly wages' means the earnings of the injured employee in the employment in which he was working at the...