Roanoke Belt, Inc. v. Mroczkowski

• Decision Date: 28 March 1995
• Docket Number: No. 1077-94-3,1077-94-3
• Citation: 455 S.E.2d 267,20 Va.App. 60
• Parties: ROANOKE BELT, INC., et al. v. Martin Matthew MROCZKOWSKI (deceased), et al. Record
• Court: Virginia Court of Appeals

Page 267

455 S.E.2d 267

20 Va.App. 60

ROANOKE BELT, INC., et al. v. Martin Matthew MROCZKOWSKI (deceased), et al.

Record No. 1077-94-3.

Court of Appeals of Virginia Salem.

March 28, 1995.

[20 Va.App. 63] Jim H. Guynn, Jr., Roanoke (Parvin, Wilson, Barnett & Guynn, P.C., on briefs), for appellants.

William H. Fralin, Jr., Roanoke (Jolly, Place, Fralin & Prillaman, P.C., on brief), for appellees.

Present: MOON, C.J., and COLEMAN and KOONTZ, JJ.

KOONTZ, Judge.

In this appeal we are required to address a number of issues of first impression with respect to the eligibility of a parent of a deceased employee to receive benefits under the Virginia Workers' Compensation Act. Roanoke Belt, Inc. and its insurer, Travelers Insurance Co. (collectively Roanoke Belt), appeal an award by the Virginia Workers' Compensation Commission (commission) pursuant to Code § 65.2-515(A)(4) to Linda Phyllis Jacobs Mroczkowski (Mrs. Mroczkowski) arising out of the death of her son in a compensable industrial accident.

In reply, Mrs. Mroczkowski, pursuant to her right under Rule 5A:21(b), raises the additional issues of (1) whether the commission's finding that she is a parent in destitute circumstances is reviewable as a finding of fact or question of law, and (2) whether the commission erred in finding that she was not, in the alternative, entitled to benefits as a partial dependent pursuant to Code § 65.2-516. For the following reasons, we reverse the commission's award.

I. FACTUAL BACKGROUND

The material facts are not in dispute. In October 1991, following the death of her husband, Mrs. Mroczkowski and her two minor daughters moved from Brooklyn, New York to Roanoke, Virginia. She rented a three-bedroom apartment with the expectation that her twenty-one year old son, Martin Matthew Mroczkowski (Martin), would subsequently come to live with her and his sisters. In April 1992, Martin and his girlfriend, Renee Krol, moved into this apartment with the other members of the family. In May 1992, Martin became employed with Roanoke Belt and subsequently was killed in a compensable accident on September 29, 1992.

Prior to moving to Roanoke, Mrs. Mroczkowski was a computer loan analyst for a New York bank and earned an annual salary of $32,000. When the bank began "downsizing" its staff, she voluntarily took a package of pension and unemployment benefits so that she could move out of New York. At the time of Martin's death, Mrs. Mroczkowski was receiving $1,200 per month in unemployment benefits from New York and held approximately $12,000 in an individual retirement account in a local bank. Mrs. Mroczkowski also was receiving $1,000 per month in social security benefits on behalf of her daughters as surviving dependents of her deceased husband. She owned no real estate or personal property other than incidental household items. She had no medical insurance.

After Martin became employed with Roanoke Belt, he began paying Mrs. Mroczkowski $75-100 per week for household expenses, including room and board for himself and Renee Krol. Expenses for the whole family amounted to approximately $1,000 per month, including $525 rent for the apartment. In addition, Martin provided transportation to his mother and sisters, went to the grocery store, occasionally contributed items of clothing for his sisters and acted "as the man of the house." Mrs. Mroczkowski did not have a New York or Virginia operator's license.

Mrs. Mroczkowski is forty-five years old and, although she suffers from a respiratory condition, is neither physically or mentally disabled from gainful employment. She has a high school education. Mrs. Mroczkowski maintains, however, that she has been unable to secure employment in Roanoke.

Following her son's death, Mrs. Mroczkowski applied to the commission for survivor's benefits, alleging that she was a destitute parent entitled to benefits as a presumptive total dependent pursuant to Code § 65.2-515(A)(4) or that she was, in the alternative, an actual, partial dependent of Martin pursuant to Code § 65.2-516. ¹ At that time, Mrs. Mroczkowski established that her unemployment benefits expired approximately one month after Martin's death. In addition, at the time of the proceedings before the deputy commissioner, she had depleted the funds On appeal, the commission affirmed with three separate opinions. After noting that the "issue of whether a parent is in destitute circumstances is determined at the time of death [of the employee]," Commissioner Diamond, writing for the commission, agreed with the deputy commissioner that unemployment benefits should not be included in determining dependency-destitute issues. Commissioner Diamond reasoned that unemployment benefits are "inherently temporary" and, as such, would defeat the purpose of awarding benefits to an indigent parent to ensure a reasonably comfortable livelihood not accompanied by contingencies and uncertainties. In addition, she found that "financial vulnerability is a major factor in determining destitute circumstances" and that Mrs. Mroczkowski was in fact "extremely vulnerable financially." Commissioner Diamond noted that without a driver's license and with only a high school education Mrs. Mroczkowski's job prospects were "not good." Finally, she concluded Mrs. Mroczkowski's lack of health insurance or any assets leave her "prone to financial disaster in the face of any major expense."

in her individual retirement account. The deputy commissioner ruled that it was improper to consider the unemployment benefits Mrs. Mroczkowski was receiving at the time of Martin's death in determining her status. Accordingly, the deputy commissioner found that Mrs. [20 Va.App. 66] Mroczkowski was destitute and entitled to benefits as a presumptive dependent pursuant to Code § 65.2-515(A)(4). ²

Commissioner Tarr, while disagreeing with Commissioner Diamond that unemployment benefits should not be included as income in the destitution analysis, concurred in the result, stating that this was "a close case" as to whether Mrs. Mroczkowski was in destitute circumstances.

Chairman Joyner dissented, finding that at the time of Martin's death, Mrs. Mroczkowski was not in destitute circumstances and her subsequent distress was a result of the expiration of her unemployment benefits and her failure to seek employment when she was "physically capable to do so." Chairman Joyner reasoned that, unlike other forms of public welfare assistance, unemployment benefits are status-based, applicable to the public at large regardless of their standard of living, and are available for the purpose of providing limited income for a fixed period of time during which other employment may be sought. In contrast, public welfare is a need-based program, and the "eligibility for these payments, in itself, is evidence bearing on one's living standard." Accordingly, Chairman Joyner concluded that Mrs. Mroczkowski's unemployment benefits should be counted as income to her and with that income she was not destitute at the time of Martin's death.

With respect to the question of partial dependency, Commissioner Diamond's opinion recites that the commission "agree[s] ... that the evidence of partial dependency is insufficient to support the claims of Linda Mroczkowski" under Code § 65.2-516. ³

II. APPLICABLE STANDARD OF REVIEW

Mrs. Mroczkowski asserts that the commission's determination that she was a parent in destitute circumstances is a finding of fact, reversible on appeal only if plainly wrong or without support in the evidence. We agree that findings of fact made by the commission are binding on appeal if they are supported by credible evidence. Code § 65.2-706; Armstrong Furniture v. Elder, 4 Va.App. 238, 247, 356 S.E.2d 614, 619 (1987). On appeal, we must view the evidence in the light most favorable to the prevailing party below, and "[t]he fact that contrary evidence may be found in the record is of no consequence if credible evidence supports the commission's finding." Manassas Ice & Fuel Co.

v. Farrar, 13 Va.App. 227, 229, 409 S.E.2d 824, 826 (1991). We further recognize that findings concerning the status of presumptive dependents are factual determinations. See Kelly v. Pendleton Constr. Co., [20 Va.App. 68] 182 Va. 191, 194, 28 S.E.2d 621, 623 (1944) (determination of wife's desertion of marriage abrogating dependency under predecessor statute was question of fact).

However, the principal issues raised by this appeal relate not to the factual findings of the commission, but to its application of the law to those findings. Accordingly, these issues are mixed questions of law and fact. Cf. Franklin Mortgage Corp. v. Walker, 6 Va.App. 108, 110, 367 S.E.2d 191, 192 (1988) (en banc) (finding that an injury arose out of and in the course of employment is a mixed question of law and fact). Accordingly, while we must defer to the factual findings of the commission with respect to Mrs. Mroczkowski's finances and work capacity, cf. id. at 110-11, 367 S.E.2d at 193, we review de novo the commission's application of the law to those findings in determining whether she was destitute.

III.

APPLICATION OF CODE § 65.2-515(A)(4)

A. CONSIDERATION OF UNEMPLOYMENT BENEFITS AS INCOME

Code § 65.2-515 defines those persons who are conclusively presumed to be wholly dependent upon a deceased employee. Subsection (A)(4) provides that "[p]arents in destitute circumstances, provided there be no total dependents pursuant to other provisions of this section" are presumptive total dependents. The appellate courts of this Commonwealth have not determined previously whether unemployment benefits are to be included in the calculus for determining dependency and destitution under Code § 65.2-515. The commission, however, has consistently held that "welfare payments and other public assistance funds have always been excluded from dependency-destitution type [workers'] compensation cases." Brandon v. Batchelder & Collins, ...