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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.

    Death Presumption.  The Workers' Compensation Commission did not err in finding that Keith Fitzgerald Marshall's unexplained death arose in the course of his employment. Employer employed Marshall as its cultural and educational activities director.  Marshall's duties included supervising children in the aquatic center and serving as the lifeguard.  After Marshall supervised an open swim session for a group of children, he sent the children to the locker room to change. This was the last swim session of the day and the children were responsible for getting from the pool to the next area of the club on their own. After that session ended, Marshall was expected to "return to the front counter area and do general supervision of the children and interact with the parents as they came in" to get their children. Shortly after the children went to the locker room, however, Marshall was discovered unconscious in the pool. no one witnessed the incident. As a trained lifeguard, Marshall was "responsible for the safety and well-being of all [their] patrons."  Marshall informed the executive director some weeks prior to his death that he had been "trying to increase the length that he could swim underwater in the pool."  The executive director testified that although Marshall had responsibility for pool maintenance, endurance swimming was not one of Marshall's assigned duties.
    Code Sec. 65.2-101 requires a person who claims benefits under the Workers' Compensation Act to prove an "injury by accident arising out of and in the course of the employment." [T]he language "in the course of" refers to the time, place, and circumstances under which the accident occurred. An accident occurs during the course of the employment if it takes place within the period of employment, at a place where the employee may reasonably be expected to be, and while the employee is reasonably fulfilling the duties of the employment or is doing something reasonably incidental to it. Briley v. Farm Fresh, Inc., 240 Va. 194, 197, 396 S.E.2d 835, 836-37 (1990) (citation omitted). The Supreme Court long ago adopted the following rule: [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. Southern Motor Lines v. Alvis, 200 Va. 168, 171-72, 104 S.E.2d 735, 738 (1958).
    Credible evidence establishes that Marshall drowned while at work. He had released children from the pool to shower shortly before he drowned in the pool. The commission drew the inference from the circumstances and Marshall's duties as a lifeguard, that his activities in and around the pool before the children left the shower room related to what he was employed to do. Although the executive director testified that underwater endurance swimming was not one of Marshall's "duties," we cannot say the commission erred in finding that this testimony was not probative of whether that activity bore a relation to Marshall's conditioning and skills as a lifeguard. Accordingly, the commission's ruling is affirmed that the unexplained death presumption was applicable and that the evidence did not rebut the presumption.
    Credible evidence in the record proved, without application of the presumption, that Marshall's death arose in the course of his employment.  An employee's personal activities at work may, under certain circumstances, fall within the course of employment. Even though the activity from which the injury arises has no direct relationship to the employment, yet if it is a common practice among the employees, is acquiesced in by the employer, if the employer has allowed the employee to use the employer's tools and facilities, if the accident occurs during working hours, and if the accident occurs during a lull in regular work so that the questioned activity does not interfere with the employee's duties, such considerations have been held to bring the employee's activities in his own behalf within the scope of employment. Ablola v. Holland Road Auto Center, 11 Va. App. 181, 184, 397 S.E.2d 541, 543 (1990). The commission found that Marshall's swim in the pool occurred during his normal working hours and a lull in his schedule. The commission also found that his swim did not interfere with his other duties. The evidence proved the executive director was aware of Marshall's swimming activity, and no evidence indicated he voiced disapproval.  Moreover, the commission could reasonably infer from the evidence that Marshall's "activity had more than an incidental benefit to the employer," who depended upon Marshall's lifeguarding skills. It is apodictic that a lifeguard's swimming skills above and below water are integral to his employment responsibilities. Thus, credible evidence in the record supports the commission's ruling that Marshall's death arose in the course of his employment.
    The commission had authority to order employer to secure the appointment of a guardian so that the payment of compensation benefits to Marshall's minor dependent "may commence forthwith." "In addition to its statutorily granted powers, the commission also has incidental powers which are reasonably implied as a necessary incident to its expressly granted powers for accomplishing the purposes of the Workers' Compensation Act." Bader v. Norfolk Redev. & Hous. Auth., 10 Va. App. 697, 702, 396 S.E.2d 141, 144 (1990). Code Sec. 65.2-525(c) requires that whenever payment of compensation over $300 is due to a minor, the payment shall be made to the guardian of the property of the minor or to such suitable person appointed by the circuit court as trustee. The commission did not abuse its discretion in requiring the employer to take necessary action to assure the forthwith payment of the awarded compensation benefits.  Boys and Girls Club v. Keith Marshall, Record No. 0264-01-4 (October 30, 2001). WP Version.

    The Workers' Compensation Commission (the commission) did not err in finding decedent's death arose out of his employment and in awarding  award benefits to decedent's wife for the death of her husband.  Decedent was working on a school roof out of sight of coworkers. In order to go from the first story roof to the ground, decedent had to lower a twenty-foot extension ladder to the ground.  Several people inside the school heard the sound of the extension ladder being displaced and something striking the concrete pavement.
    Shortly thereafter, decedent was found lying on the ground combative, disoriented, mumbling and with an open-head wound.  Loose gravel from the roof was found on the ground around him.  No one witnessed decedent's fall, and decedent was unable to provide anyone with the details of what happened.  He was transported by ambulance to a nearby trauma center.
      An angiogram was performed at the trauma center after which decedent suffered cardiac arrest.  Decedent was revived but subsequently arrested two more times and was pronounced dead at 6:04 p.m.  No autopsy was performed.  The medical examiner, Dr. Hoffman, filed a certificate of death stating that death was caused by "closed chest and head injuries."
    Although the commission erred in finding the unexplained death presumption recognized in Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735, to be applicable to the claim, it did not err in finding the evidence sufficient to establish the fatal injury arose out of decedent's employment.  In Southern Motor Lines Co. v. Alvis, 200 Va. 168, 104 S.E.2d 735, the Supreme Court of Virginia acknowledged the following presumption in certain cases involving an unexplained death: "[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 738-39 (internal citations omitted) (emphasis added). The presumption applies to those instances where an employee "is found dead . . . at his place of work" and the circumstances of death are unexplained.  The presumption does not apply to a case such as the one at bar, where decedent was not found dead at his place of work, but rather suffered injuries in an unexplained accident that later proved to be fatal. See Pinkerton's, Inc. v. Helmes, 242 Va. 378, 380-81, 410 S.E.2d 646, 648 (1991). 
    Nevertheless, the evidence as a whole preponderates that decedent died as a result of a fall of approximately fifteen feet onto concrete as he was attempting to descend from the roof where he was working. While no one witnessed the fatal incident, claimant presented the death certificate, which provides that decedent's death was due to closed head and chest injuries.  Dr. Hoffman, the medical examiner, testified, to a reasonable degree of medical certainty, that decedent died as a result of closed head and chest injuries sustained in the fall.  Dr. Waters also offered his opinion, "I believe he died from the fall."  In addition, there is non-expert circumstantial evidence supporting the commission's finding, including the fact that people heard the ladder being displaced, the fact that loose gravel from the roof was found on the ground next to decedent, the fact that decedent was feeling well prior to the accident and he did not complain prior to or after the accident of chest pain.  There is no evidence that decedent suffered a myocardial infarction. Evidence was presented which, directly or by inference, established that the fatal injuries arose out of decedent's employment as a roofer.  "'[A]n accident arises out of the employment when it is apparent to a rational mind, under all attending circumstances, that a causal connection exists between the conditions under which the work is required to be performed and the resulting injury.'"  Smithfield Packing Co., Inc. v. Carlton, 29 Va. App. 176, 181, 510 S.E.2d 740, 742 (1999) (citation omitted)).  Employer did not present evidence to rebut claimant's credible evidence.  It simply presented Dr. Waters' opinion that decedent did not die as a result of his head injuries.  Dr. Waters was unable to determine a cause of death and did not opine as to the possibility that decedent died as a result of the closed head and chest injuries as determined by the medical examiner.  It presented Dr. Hagberg's medical opinion that he was unable to determine the cause of death, but in which he proffered a guess that decedent "most likely" died as the result of a myocardial infarction unrelated to his fall.  Yet, Dr. Hagberg admitted this theory was speculative and not made with a reasonable degree of medical certainty.  K & G Abatement Company v. Thomas E Keil, Record No. 0164-02-1 (August 20, 2002). WP Version.

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