Dunnavant v. Newman Tire Co., Inc.

• Citation: 51 Va. App. 252,656 S.E.2d 431
• Decision Date: 12 February 2008
• Docket Number: Record No. 0969-07-2.
• Court: Court of Appeals of Virginia
• Parties: Thomas Edwin DUNNAVANT, Jr. v. NEWMAN TIRE COMPANY, INC. and Hartford Underwriters Insurance Company.

656 S.E.2d 431 51 Va. App. 252 Thomas Edwin DUNNAVANT, Jr.
v.
NEWMAN TIRE COMPANY, INC. and Hartford Underwriters Insurance Company. Record No. 0969-07-2. Court of Appeals of Virginia, Richmond. February 12, 2008.

[656 S.E.2d 432]

Roger B. Stough (Gregory R. Nevins; Michael L. Brickhill, P.C.; Lambada Legal Defense Education Fund, on brief), for appellant.

Anne C. Byrne (Warren H. Britt; Warren H. Britt, P.C., Richmond, on brief), for appellees.

Present: KELSEY and PETTY, D., and BUMGARDNER, Senior Judge.

[656 S.E.2d 433]

D. ARTHUR KELSEY, Judge.

51 Va. App. 254

Thomas Edwin Dunnavant, Jr. sought death benefits as a dependent of Phillip Dale Pettus, an employee who died as a

51 Va. App. 255

result of a workplace accident at Newman Tire Company. The Workers' Compensation Commission found Dunnavant did not qualify as a statutory dependent and rejected his claim for death benefits. Dunnavant appeals, arguing the commission erred as a matter of law. We disagree and affirm.

I.

We view the evidence on appeal in the light most favorable to Newman Tire Company, the prevailing party before the commission. See Apple Constr. Corp. v. Sexton, 44 Va.App. 458, 460, 605 S.E.2d 351, 352 (2004); Clinchfield Coal Co. v. Reed, 40 Va.App., 69, 72, 577 S.E.2d 538, 539 (2003).

So viewed, the evidence showed that Pettus died as a result of an injury at work. Claiming to be a statutory dependent, Dunnavant sought death benefits under Code § 65.2-516. At the hearing before the deputy commissioner, Dunnavant testified that he moved into Pettus's home in 1997. Though Dunnavant had worked various jobs in the past, he claimed he stopped working in 2000 after being diagnosed with fibromyalgia and chronic fatigue syndrome. He offered the commission no medical reports or physician's testimony in support of this claim. Dunnavant also said he had been declared disabled by the Social Security Administration but offered no documentary evidence of such a declaration or copies of any SSA disability checks.

Dunnavant alleged Pettus paid the majority of Dunnavant's living expenses, while Dunnavant "contributed when [he] could" to the joint grocery bills. His SSA disability checks, Dunnavant testified; paid for his prescription medications. No such bills were offered into evidence, however. Dunnavant also offered the testimony of his mother and two friends to corroborate his alleged need for support and Pettus's benevolence toward him.

The deputy commissioner found this evidence insufficient to prove dependency under Code § 65.2-516. On reviews the full commission unanimously agreed and held Dunnavant "failed to prove a relationship with the decedent beyond sharing a house

51 Va. App. 256

and the ensuing economic dependencies that this entails." Pettus v. Newman Tire Co., Inc., VWC File No. 208-08-12, 2007 Va. Wrk. Comp. LEXIS 637, at *18 (Apr. 20, 2007). The commission explained:

From the evidence presented, he has the status of a housemate, a situation that arises under many circumstances, but does not indicate a dependent relationship beyond the sharing of a household. At best, the situation could be considered "mutually assistive".... Here, the parties lack the status of a blood, marital, or legal relationship, and the claimant has failed to prove a mental or physical disability that caused his dependency and prevented him from earning a livelihood.

Id. at *18-19. Because it was wholly "unaccompanied by medical evidence," id. at *19, the commission also found unpersuasive Dunnavant's testimony about the existence and extent of any medical condition justifying his claimed need for support.

II.

On appeal, Dunnavant argues that the commission misapplied the legal standard governing Code § 65.2-516 and erroneously failed to accept his testimony claiming to have been dependent on Pettus. We disagree.

The workers' compensation statute divides dependents into two classes. The first involves individuals "conclusively presumed" to be dependents solely because of their familial relationship to the decedent. Code § 65.2-515(A). Subject to certain exceptions, this class includes spouses, minor children, destitute parents, and adult children who are disabled or attending school. Id. Code §, 65.2-516 recognizes that the, traditional definition of dependency, however, can extend beyond the nuclear family categories of Code § 65.2-515(A). In this second class, "questions of dependency in whole or in part shall be determined in accordance with the facts as the facts are at the time" of the decedent's accident. Code § 65.2-516.

656 S.E.2d 434

51 Va. App. 257

Because the statute "does not define dependency or specify the indicia of that status," Glassco v. Glassco, 195 Va. 239, 242, 77 S.E.2d 843, 845 (1953), membership in the second class of dependents depends on the "facts and circumstances of each particular case, from the amounts, frequency and continuity of actual contributions of cash or supplies, the needs of the claimants, and the legal or moral obligations of the employee." Va. Elec. & Power Co. v. Place, 150 Va. 562, 568, 143 S.E. 756, 758 (1928) (quoting Md. Cos. Co. v. Campbell, 34 Ga.App. 311, 129 S.E. 447, 448 (1925)). The second class of dependents excludes a mere "situation of mutual assistance" between the decedent and the putative dependent. Miller & Long Co. v. Frye, 215 Va. 591, 594, 212 S.E.2d 258, 260 (1975).

While the second class relies "neither upon relationship nor presumption," it nonetheless must be predicated on specific factual circumstances qualifying the claimant for dependency status. Place, 150 Va. at 569, 143 S.E. at 759. That status presupposes the decedent owed some form of "legal or moral" obligation of support, id. at 568, 143 S.E. at 758,...