                   COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Bumgardner and Clements
Argued by teleconference


LENA ROBERTSON FOR
 CHARLES ROBERTSON, DECEASED
                                               OPINION BY
v.   Record No. 3431-01-2            JUDGE RUDOLPH BUMGARDNER, III
                                            AUGUST 27, 2002
E.I. DuPONT de NEMOURS & COMPANY, INC.


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Gary W. Kendall (J. Gregory Webb; Michie,
          Hamlett, Lowry, Rasmussen & Tweel, P.C., on
          brief), for appellant.

          Stephen D. Busch (Kathryn A. Ramey;
          McGuireWoods LLP, on brief), for appellee.


     Lena Robertson, widow of Charles Robertson, appeals the

denial of her claim for temporary total benefits, Code

§ 65.2-500, and the award of permanent partial benefits for

Stage I asbestosis based on Mr. Robertson's average weekly wage

when he last worked, twenty-six years earlier, Code

§ 65.2-503(B)(17)(a).   For the following reasons, we affirm.

     The facts were stipulated.    Charles Robertson retired from

E.I. DuPont de Nemours twenty-six years before he was diagnosed

with Stage I asbestosis.    He had worked for DuPont for

twenty-seven years, and his last occupational exposure to

asbestos occurred during his employment there.    The worker did

not work, earn wages, or seek to earn wages after his voluntary
retirement in 1973.   Charles Robertson earned no wages in the 52

weeks prior to his diagnosis of asbestosis and suffered no loss

of wages as a result of the diagnosis.     He died a year after the

diagnosis.

       The commission denied the worker's claim for temporary

disability benefits because he had not earned any wages in the

52 weeks prior to the date of communication of his disease to

him.   The commission based its decision on Newton v. Fairfax

Police Dep't, 259 Va. 801, 529 S.E.2d 794 (2000), and Arlington

County Fire Dep't v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124

(1996).   Those cases control this case.

       Stebbins was a voluntarily retired firefighter.   He had not

earned any income for 52 weeks before being diagnosed with an

occupational disease, heart disease.    This Court vacated the

commission's award of compensation for lost wages because an

award under those circumstances would result in an economic

windfall to the worker.   21 Va. App. at 574, 466 S.E.2d at 126.

"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.   Based on this purpose, the Act

compensates injured employees for loss of earning capacity."

Id. at 572, 466 S.E.2d at 125-26 (citations omitted).

"Compensation is ultimately dependent upon and determined on the

loss of wages."    Id. at 573, 466 S.E.2d at 126 (citations


                                - 2 -
omitted).    Stebbins was not entitled to compensation for lost

wages because he suffered no economic loss.

     The Supreme Court applied that analysis in Newton, 259 Va.

at 804, 529 S.E.2d at 795.   Newton was a voluntarily retired

policeman, who died from a heart attack shortly after receiving

a diagnosis of heart disease, an occupational disease.    He had

not earned wages or sought employment for 52 weeks before

learning of his disease.   The Court affirmed the denial of

weekly indemnity benefits because there was no economic loss.

"Claimants are not entitled to weekly indemnity benefits because

Newton did not receive any earnings from employment during the

52 weeks preceding the date of the communication of the

diagnosis of his occupational disease."    Id. at 805, 529 S.E.2d

at 796.

     In this case, the worker earned no wages during the 52

weeks prior to the date his disease was communicated to him.      We

affirm the denial of the claim for wage loss benefits because he

suffered no economic loss.

     The commission did award compensation for permanent partial

loss for Stage I asbestosis.   Code § 65.2-503(B)(17)(a).

Benefits for the losses listed in Code § 65.2-503 have been

described as payment for "loss of what might be termed 'human

capital.'"    Morris v. Virginia Retirement Sys., 28 Va. App. 799,

806, 508 S.E.2d 925, 929 (1999).   Such benefits are not related

to income earned.   While the commission awarded these benefits,
                               - 3 -
it ruled the average weekly wages would be calculated at the

wages the worker last earned prior to his retirement from DuPont

twenty-six years before.    The worker argues he is entitled to an

enhanced average weekly wage, based on the date the disease was

communicated to him, as provided in Code § 65.2-406(C). 1

     The commission relied on Chesapeake & Potomac Telephone Co.

v. Williams, 10 Va. App. 516, 392 S.E.2d 846 (1990), in ruling

that the earlier wage applied.    Williams was diagnosed with

mesothelioma caused by exposure to asbestos after he voluntarily

retired from C&P, but while earning a lower wage with another

employer.    C&P argued that the proper average weekly wage was

the lower wage the worker earned during the preceding 52-week

period.    The only issue was whether the commission erred in


     1
         Code § 65.2-406(C), provides in relevant part,

            For a first or an advanced stage of
            asbestosis . . . if the employee is still
            employed in the employment in which he was
            injuriously exposed, the weekly compensation
            rate shall be based upon the employee's
            weekly wage as of the date of communication
            of the first or advanced stage of the
            disease, as the case may be. If the
            employee is unemployed, or employed in
            another employment, the weekly compensation
            rate shall be based upon the average weekly
            wage of a person of the same or similar
            grade and character in the same class of
            employment in which the employee was
            injuriously exposed and preferably in the
            same locality or community on the date of
            communication to the employee of the
            advanced stage of the disease . . . .


                                 - 4 -
calculating his average weekly wage as the wages earned during

his exposure to the disease.   The decision specifically dealt

with the issue the claimant raises in this case.

            However, we find that by using the phrase
            "in the employment in which he was working
            at the time of his injury" in Code § 65.1-6
            [now 65.2-101], the legislature intended
            that the average weekly wage award be based
            upon the wages received from the employment
            where the employee was exposed to the
            element which caused the occupational
            disease for which claim is made.

Id. at 519, 392 S.E.2d at 848.

     Contrary to C&P's argument that the later date of

communication should be used, the decision distinguished between

"the time of injury for purposes of the average weekly wage" and

"the date of injury for purposes of the statute of limitations."

Id. at 516, 392 S.E.2d at 847.    The date an occupational disease

is discovered and communicated to the worker "shall be treated

as the happening of an injury by accident" for purposes of the

statute of limitations.   Code § 65.2-403(A).   Average weekly

wage, however, is defined as "the earnings of an injured

employee in the employment in which he was working at the time

of the injury."   Code § 65.2-101.

     In this appeal, the worker argues asbestosis should be

treated differently from other diseases when determining wage

loss benefits.    However, we are bound by the explicit holding in

Williams.    See Commonwealth v. Burns, 240 Va. 171, 173-74, 395

S.E.2d 456, 457 (1990).   We affirm the commission's calculation
                               - 5 -
of the worker's average weekly wage at the amount he earned at

the time he was exposed to the asbestos.

     For the reasons stated, we affirm the decision of the

commission.

                                                   Affirmed.




                              - 6 -
Elder, J., concurring, in part, and dissenting, in part.

        I concur in the majority's decision affirming the

commission's denial of temporary total disability benefits.

However, I disagree that our holding in Chesapeake & Potomac

Telephone Co. v. Williams, 10 Va. App. 516, 392 S.E.2d 846

(1990), compels the commission's conclusion that the permanent

partial disability benefits awarded for Charles Roberston's

asbestosis should be calculated based on the average weekly wage

he earned before voluntarily retiring in 1973.      Therefore, I

respectfully dissent from this portion of the majority opinion.

        The claimant in Williams sought temporary total disability

compensation for mesothelioma rather than asbestosis. 2     See 10

Va. App. at 517, 392 S.E.2d at 847.      Although the portion of

present Code § 65.2-406(C) providing for an enhanced weekly

compensation rate refers specifically to both asbestosis and

mesothelioma, this has not always been the case.      The claimant

in Williams received his mesothelioma diagnosis on January 20,

1988.       See Blue Diamond Coal Co. v. Pannell, 203 Va. 49, 54, 122


        2
       Mesothelioma is a form of cancer which affects mesothelial
tissue in the lungs, peritoneum or pericardium. The
Sloane-Dorland Annotated Medical-Legal Dictionary 351 (Supp.
1992). Asbestosis is "a form of lung disease (pneumoconiosis)"
which causes interstitial fibrosis or scarring of the lungs.
Id. at 36. "'[N]ot everyone who develops asbestosis develops
mesothelioma, and it is not necessary to have asbestosis to have
mesothelioma.'" Id. at 352 (quoting Owens Corning Fiberglas
Corp. v. Hammond, 555 N.E.2d 1233, 1236 (Ill. App. Ct. 1990)).
Although both are caused by exposure to asbestos, "'asbestosis
and mesothelioma are two separate diseases.'" Id. (quoting
Hammond, 555 N.E.2d at 1236).
                              - 7 -
S.E.2d 666, 670 (1961) (holding that law in effect at time of

incapacity governs, not law in effect at time of death or time

award is made).   The version of the statute in effect at that

time, Code § 65.1-52, the predecessor statute to present Code

§ 65.2-406, referred only to asbestosis, providing as follows:

          For a first or an advanced stage of
          asbestosis, if the employee is still
          employed in the employment in which he was
          injuriously exposed, the weekly compensation
          rate shall be based upon the employee's
          weekly wage as of the date of communication
          of the first or advanced stage of the
          disease, as the case may be. If the
          employee is unemployed, or employed in
          another employment, the weekly compensation
          rate shall be based upon the average weekly
          wage of a person of the same or similar
          grade and character in the same class of
          employment in which the employee was
          injuriously exposed and preferably in the
          same locality or community on the date of
          communication to the employee of the
          advanced stage of the disease.

Code § 65.1-52 (Repl. Vol. 1987 & 1989 Supp.) (emphasis added);

1985 Va. Acts, ch. 191; 1989 Va. Acts, ch. 502.   Another portion

of Code § 65.1-52 then in effect, not directly related to the

enhanced compensation rate provisions, referred specifically to

both asbestosis and mesothelioma, making clear the legislature

recognized them as two separate diseases.   See Code § 65.1-52(A)

(Repl. Vol. 1987 & 1989 Supp.).

     Thus, both when Williams received his mesothelioma

diagnosis on January 20, 1988, and when this Court decided

Williams on June 19, 1990, the portion of Code § 65.1-52

                               - 8 -
providing an alternate method for calculating an employee's

average weekly wage expressly applied only to employees

suffering from asbestosis, not to employees suffering from

mesothelioma.    The legislature amended Code § 65.1-52 to include

both asbestosis and mesothelioma, but that amendment did not

take effect until July 1, 1990, see 1990 Va. Acts, ch. 417, 3

after issuance of the decision in Williams on June 19, 1990.

     The Court's failure in Williams to apply the special method

for calculating average weekly wage set out in Code § 65.1-52

rather than the general method in Code § 65.1-6 4 may be explained



     3
         As amended in 1990, Code § 65.1-52 provided as follows:

            For a first or an advanced stage of
            asbestosis or diagnosis of mesothelioma, if
            the employee is still employed in the
            employment in which he was injuriously
            exposed, the weekly compensation rate shall
            be based upon the employee's weekly wage as
            of the date of communication of the first or
            advanced stage of the disease, as the case
            may be. If the employee is unemployed, or
            employed in another employment, the weekly
            compensation rate shall be based upon the
            average weekly wage of a person of the same
            or similar grade and character in the same
            class of employment in which the employee
            was injuriously exposed and preferably in
            the same locality or community on the date
            of communication to the employee of the
            advanced stage of the disease or diagnosis
            of mesothelioma.

1990 Va. Acts, ch. 417. In its present version, former Code
§ 65.1-52, now § 65.2-406, refers to "a first or an advanced
stage of asbestosis or mesothelioma." 1995 Va. Acts, ch. 324.
     4
         This provision is now codified at § 65.2-101.
                                - 9 -
by the fact that, under the version of Code § 65.1-52 in effect

at that time, the special average weekly wage provisions did not

apply to claimants suffering from mesothelioma.    Thus, the

holding in Williams set out the method to be used for

determining average weekly wage for those employees suffering

from occupational diseases other than those affected by the

special average weekly wage provisions of Code § 65.1-52, which,

at the time, applied only to asbestosis.    Even in that context,

the Court noted that Code § 65.1-6's provisions defining average

weekly wage "contain[] language which gives the commission some

latitude to determine what method" of calculation should be

used.     Williams, 10 Va. App. at 520 n.2, 392 S.E.2d at 848 n.2.

To hold that Williams requires an award of permanent partial

disability benefits based on the average weekly wage claimant

earned twenty-six years before his asbestosis diagnosis would be

to render meaningless the special average weekly wage provisions

of Code § 65.2-406(C), which expressly apply to asbestosis, and

would do so unnecessarily.

        Having concluded that Williams does not prevent application

of the average weekly wage provisions of Code § 65.2-406(C), I

would also reject employer's contention that these provisions do

not apply to claimants who are voluntarily retired.    I see no

reason to interpret the Act to provide one method of calculating

average weekly wage for employees who have voluntarily retired

and another method for employees unemployed for any other reason
                                 - 10
                                 -
as well as employees still working for the same or a different

employer.   Rather, the more logical conclusion is that the

legislature intended to provide an alternate method of

calculation for all employees based on the type of occupational

disease from which they suffer, asbestosis or mesothelioma

resulting from industrial exposure to asbestos.   As we noted in

discussing differences in the statutes of limitations for

various occupational diseases, the legislature has "recognized

that asbestosis is a progressive disease which may manifest

itself many years after the cessation of [the] employment" in

which the asbestos exposure occurred.   Parris v. Appalachian

Power Co., 2 Va. App. 219, 221-22, 343 S.E.2d 455, 456 (1986)

(noting legislature's deletion of five-year statute of

limitations for asbestosis, leaving provision that claim is

timely if filed within two years of communication of diagnosis

to employee).

     Interpreting Code § 65.2-406(C) as including all employees

with industrial asbestosis and mesothelioma compels the

conclusion that the "unemployed" include all those employees

voluntarily retired.   Contrary to the argument of employer, such

an interpretation does not automatically entitle a voluntarily

retired claimant to temporary disability benefits.   Code

§ 65.2-406(C) merely provides the method for calculating the

average weekly wage.   A claimant seeking temporary or permanent

disability benefits must still prove an entitlement to those
                               - 11
                               -
benefits under another portion of the Act.   As the majority

opinion holds, a voluntarily retired claimant who is

"unemployed" within the meaning of Code § 65.2-406(C) when he

becomes temporarily disabled from an occupational disease is not

entitled to temporary disability benefits under the Act because

he has no wage loss.   See, e.g., Newton v. Fairfax Police Dep't,

259 Va. 801, 804, 529 S.E.2d 794, 795 (2000).   Nevertheless, a

voluntarily retired employee may be entitled to permanent

disability benefits under Code § 65.2-503, calculated at the

rate set out in Code § 65.2-406(C), because such benefits, as

explained by the majority opinion, are for the "loss of what

might be termed 'human capital.'"    Morris v. Virginia Retirement

Sys., 28 Va. App. 799, 806, 508 S.E.2d 925, 929 (1999).

     For these reasons, I would hold the commission erred in

calculating claimant's average weekly wage under Williams rather

than under the express terms of Code § 65.2-406(C).    Thus, I

respectfully dissent from this portion of the majority opinion.




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