                   COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Clements
Argued at Salem, Virginia


ANTHONY LEON CLARK (DECEASED),
 BY AND THROUGH ODELL T. CLARK
                                           MEMORANDUM OPINION* BY
v.   Record No. 0695-00-3                 JUDGE ROBERT J. HUMPHREYS
                                              NOVEMBER 14, 2000
LAWHORNE BROTHERS, INC. AND
 PENNSYLVANIA MANUFACTURING ASSOCIATION
 INSURANCE COMPANY


        FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

          Arelia S. Langhorne for appellant.

          Frederick T. Schubert, II (Steven H. Theisen;
          Midkiff & Hiner, P.C. on brief), for
          appellees.


     Anthony Leon Clark ("the decedent"), by and through

Odell T. Clark ("Odell"), his mother, contends that the Workers'

Compensation Commission ("commission") erred in finding that

(1) Odell failed to prove that she was conclusively presumed to

be wholly dependent upon the decedent, as a parent in destitute

circumstances within the meaning of Code § 65.2-515(A)(4);

(2) Odell failed to prove that she was wholly dependent on

decedent within the meaning of Code § 65.2-516; and (3) on

review before the full commission, Odell waived her contention



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
that she was at least partially dependent on the decedent within

the meaning of Code § 65.2-516.   For the reasons that follow, we

disagree and affirm the decision of the commission.

              I.   Parent in Destitute Circumstances

     On appeal, "we review the evidence in the light most

favorable to the prevailing party."    R.G. Moore Bldg. Corp. v.

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990).

               "[T]he fact that contrary evidence may
          be found in the record is of no consequence
          if credible evidence supports the
          commission's finding." We further recognize
          that findings concerning the status of
          presumptive dependents are factual
          determinations.
               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. [Thus], while we
          must defer to the factual findings of the
          commission with respect to [Odell's]
          finances and work capacity, we review de
          novo the commission's application of the law
          to those findings in determining whether she
          was destitute.

Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 67-68, 455

S.E.2d 267, 270-71 (1995) (citations omitted).

     The commission made the following findings:

               The evidence shows that [Odell]
          receives $470.00 per month in social
          security benefits [, which is excluded from
          consideration of her destitute circumstances
          pursuant to Id. at 68-69, 455 S.E.2d at
          271]. She has no other income at this time
          but before her son's death, she was working


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           twenty hours per week despite her alleged
           diagnosed high blood pressure.
                [Odell] did not prove that she was
           incapacitated for other employment. She
           presented no medical evidence that her high
           blood pressure prevented her from holding a
           job or that she in fact looked for work
           following her son's death. She owns a car
           and a home valued at $100,000 in which she
           has a 70% equity. She has no dependents and
           has not proven that she does not have
           earning potential.

     In Oil Transport, Inc. v. Jordan, 22 Va. App. 633, 472

S.E.2d 291 (1996), we noted that

                Code § 65.2-515(A)(4) provides that
           "[p]arents in destitute circumstances,
           provided that 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 anticipated or
           inevitable financial emergencies" is deemed
           "financially vulnerable" and, therefor,
           destitute for the purposes of Code
           § 65.2-515(A)(4). This status is to be
           determined by the evidence viewed at the
           time of the employee's death.

Id. at 636, 472 S.E.2d at 292 (citations omitted) (emphasis

added).   "[T]he determination of whether a parent is in

destitute circumstances depends upon various factors, including

earnings or earning potential, amount of assets, health, age,

level of formal education, and number of dependents."      Roanoke

Belt, 20 Va. App. at 73, 455 S.E.2d at 273 (emphasis added).




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     Applying these criteria to the facts of this case, we find

that the commission did not err in concluding that Odell was not

a parent in destitute circumstances.    At the time of the

decedent's death, Odell was sixty-three years old and worked

twenty hours per week cleaning offices for ServiceMaster.

During the month prior to decedent's death, she earned $467.

There is no evidence that she worked or sought employment after

decedent's death.    She presented no medical evidence to

substantiate her claim that her "palpitations, high blood

pressure and emotional state" prevented her from working.

Furthermore, she owns a four-bedroom home and two acres of land

in which she has a substantial equity and has no dependents to

support.   Finally, she offered no documentary evidence to

substantiate her claim that the decedent gave her money toward

her monthly expenses, and she did not testify to any anticipated

or inevitable financial emergency.

                       II.   Actual Dependency

     "Code § 65.2-516 provides that 'questions of

[non-presumptive] dependency in whole or in part shall be

determined in accordance with the facts as [they existed] at the

time of the accident; but no allowance shall be made for any

payment in lieu of board and lodging or services.'"    Id. at 74,

455 S.E.2d at 274.

     In rejecting Odell's claim that she was actually dependent

upon the decedent, the commission ruled that the payments she

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received, if any, were for room and board, and could not be used

for the purpose of establishing dependency.

     This factual finding is supported by the record.      The

decedent began living with Odell in March, 1998.      While Odell

testified in her deposition that the money decedent gave her was

to pay her bills and for food, she had previously testified in

her deposition that the money was for room and board.     Moreover,

Odell produced no documentation to substantiate any contribution

decedent may have made.

     Based upon this record, we cannot find that the commission

erred in concluding that Odell failed to prove that she was

actually dependent upon the decedent.

                    III.   Partial Dependency

     Odell argues that the commission erred in finding that she

waived any issue of partial dependency.    She suggests that her

statement that "Anthony continued to help support his mother; he

gave her $75.00 to $100.00 a week which helped to pay her bills"

was sufficient to raise the issue.     We disagree.

     The record is clear that Odell raised no issue in her

statement before the commission other than that she was a parent

in destitute circumstances.   She neither briefed nor argued the

issue of partial dependency before the commission.     Accordingly,

we find that the commission did not abuse its discretion in

finding that Odell waived the issue of whether she was entitled



                               - 5 -
to death benefits for partial dependency pursuant to Code

§ 65.2-516.   See generally Russell Stover Candies v. Alexander,

30 Va. App. 812, 824 n.3, 520 S.E.2d 404, 410 n.3 (1999).

     For these reasons, we affirm the decision of the

commission.

                                                         Affirmed.




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