                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Alston and Chafin
UNPUBLISHED


              Argued at Salem, Virginia


              DAVID A. SHAVER
                                                                             MEMORANDUM OPINION* BY
              v.     Record No. 1499-13-3                                     JUDGE TERESA M. CHAFIN
                                                                                   MAY 27, 2014
              DEPARTMENT OF STATE POLICE/
               COMMONWEALTH OF VIRGINIA


                            FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

                               Michael A. Kernbach for appellant.

                               Katherine DeCoster, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General; Wesley G. Russell, Jr., Deputy
                               Attorney General; Peter R. Messitt, Senior Assistant Attorney
                               General; Scott John Fitzgerald, Senior Assistant Attorney General,
                               on brief), for appellee.


                     David A. Shaver (“Shaver”) appeals a decision of the Virginia Workers’ Compensation

              Commission (“the commission”) denying him wage indemnity benefits for periods of temporary

              total disability resulting from an occupational heart disease arising out of and in the course of his

              employment with the Commonwealth of Virginia Department of State Police (“the employer”).

              On appeal, Shaver contends that the commission erred by holding that he was required to suffer a

              loss of wages in order to receive a wage indemnity benefit and that his receipt of such a benefit

              when he did not suffer a loss of wages would constitute a windfall that would unjustly enrich

              him. We hold that the commission did not err in denying Shaver indemnity benefits under the

              circumstances of this case, and accordingly, we affirm the commission’s decision.



                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                        I. BACKGROUND

       On appeal, this Court views the evidence in the light most favorable to the employer, the

prevailing party below. See R.G. Moore Bldg. Corp. v. Mullins, 10 Va. App. 211, 212, 390

S.E.2d 788, 788 (1990). So viewed, the evidence establishes that Shaver retired from

employment on September 1, 2010. Prior to his retirement, Shaver had served as a Headquarters

Lieutenant for Division IV of the employer. Shaver voluntarily retired based on his years of

service, and he did not work, seek employment, or have any plans to seek employment following

his retirement.

       On October 14, 2010, Shaver felt discomfort in his chest while driving his godson to

school. He was subsequently diagnosed with coronary artery disease. Shaver’s physicians stated

that the occupational stress from his employment could have contributed to the development or

acceleration of this heart disease. Shaver was hospitalized due to this heart condition on the

following dates: October 14-15, 2010; November 3-7, 2010; November 17-18, 2010; May 20,

2011; November 2-3, 2011; and November 17-19, 2011. Shaver was totally incapacitated during

these periods of hospitalization.

       On December 20, 2010, Shaver filed a claim for workers’ compensation benefits based

on his heart disease. He requested both medical benefits and wage indemnity benefits to

compensate him for the periods of total disability he suffered while hospitalized. The employer

stipulated that Shaver’s coronary artery disease constituted a compensable occupational disease

pursuant to Code § 65.2-402(B) and that he was entitled to medical benefits arising out of this

diagnosis.1 The employer further stipulated that Shaver was totally disabled for the periods for




       1
          Code § 65.2-402(B) provides, in pertinent part, that heart disease resulting in the total or
partial disability of state police officers is presumed to be an occupational disease suffered in the


                                                 -2-
which he sought compensation and that he earned a pre-injury average weekly wage of

$1,172.35. The employer argued, however, that Shaver was not entitled to wage indemnity

benefits because he had not suffered an actual economic loss due to his heart condition, as he

was voluntarily retired and not receiving wages during the time of his hospitalization and total

temporary disability.

       The deputy commissioner that heard Shaver’s case awarded him medical benefits based

on his heart disease, but denied him wage indemnity benefits for the periods of his

hospitalization. The deputy commissioner found that Shaver had not sustained any economic

loss attributable to his compensable occupational disease. The deputy commissioner held that

Shaver had not lost any wages while he was temporarily disabled because he was retired and not

employed or seeking employment during this period. Accordingly, the deputy commissioner

denied Shaver’s request for wage indemnity benefits.

       Shaver requested a review of the deputy commissioner’s decision by the full commission.

Two commissioners affirmed the deputy commissioner’s decision, and found that Shaver had

failed to establish that his disability resulted in an actual loss of wages. These commissioners

further held that awarding Shaver wage indemnity benefits where he had no wage loss would

“unjustly enrich him and counter[] the spirit of the Virginia Workers’ Compensation Act.” One

commissioner dissented, finding that Shaver was entitled to wage indemnity benefits pursuant to

Code § 65.2-500 because he had earned income within fifty-two weeks preceding the

communication of his disease. The dissenting commissioner found that this income

demonstrated that Shaver had suffered an economic loss. The dissenting commissioner reasoned

that Shaver could have worked and earned a similar wage during the periods in question in the

line of duty and is compensable unless this presumption is rebutted by a preponderance of
competent evidence to the contrary. See Code § 65.2-402(B).


                                               -3-
absence of his occupational disease. Shaver appealed the commission’s decision denying wage

loss compensation to this Court.

                                          II. ANALYSIS

        This case presents a mixed question of law and fact on appeal. In reviewing the

commission’s decision denying indemnity benefits to Shaver, we must review the commission’s

application of the facts of the case to statutory law. The commission’s factual findings will be

upheld on appeal if they are supported by credible evidence. James v. Capitol Steel Constr. Co.,

8 Va. App. 512, 515, 382 S.E.2d 487, 488 (1989). “Unlike questions of fact, however, we

review questions of law de novo. We construe the Workers’ Compensation Act liberally for the

benefit of employees and give great weight to the commission’s construction of the Act.”

Fairfax Cnty. Sch. Bd. v. Humphrey, 41 Va. App. 147, 155, 583 S.E.2d 65, 68-69 (2003)

(citations omitted). When we review the commission’s decision under these standards, we

conclude that Shaver’s arguments are without merit. As Shaver suffered no loss of wages during

his period of total temporary disability, an award of wage indemnity benefits would unjustly

enrich him. We conclude the commission did not err in concluding that Shaver was not entitled

to wage indemnity benefits under these circumstances.

        “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.” Arlington Cnty.

Fire Dep’t v. Stebbins, 21 Va. App. 570, 572, 466 S.E.2d 124, 125-26 (1996). Code § 65.2-500

provides wage indemnity benefits to injured workers during periods of temporary incapacity.

That statute states, in pertinent part:

                when the incapacity for work resulting from the injury is total, the
                employer shall pay, or cause to be paid, as hereinafter provided, to
                the injured employee during such total incapacity, a weekly
                compensation equal to 66 2/3 percent of his average weekly wages,



                                                -4-
               with a minimum not less than 25 percent and a maximum of not
               more than 100 percent of the average weekly wage of the
               Commonwealth as defined herein. In any event, income benefits
               shall not exceed the average weekly wage of the injured employee.

Code § 65.2-500(A). Code § 65.2-101 defines “average weekly wage” as:

               [t]he earnings of the injured employee in the employment in which
               he was working at the time of the injury during the period of 52
               weeks immediately preceding the date of the injury, divided by 52
               . . . . When the employment prior to the injury extended over a
               period of less than 52 weeks, the method of dividing the earnings
               during that period by the number of weeks and parts thereof during
               which the employee earned wages shall be followed, provided that
               results fair and just to both parties will be thereby obtained.2

       As demonstrated by Code §§ 65.2-101 and 65.2-500, “[c]ompensation is ultimately

dependent upon and determined on the loss of wages.” Stebbins, 21 Va. App. at 573, 466 S.E.2d

at 126. “‘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 work-related injury or death.’” Id. (quoting Bosworth v. 7-Up Distrib. Co., 4 Va. App. 161,

163, 355 S.E.2d 339, 340 (1987)). “When a worker does not suffer a loss of wages, receipt of

compensation benefits would unjustly enrich the worker and result in manifest injustice.” Lam

v. Kawneer Co., 38 Va. App. 515, 518, 566 S.E.2d 874, 875 (2002). “The purpose of the Act ‘is

to compensate injured workers for lost wages, not to enrich them unjustly.’” Id. at 520, 566

S.E.2d at 876 (quoting Collins v. Dep’t of Alcoholic Beverage Comm., 21 Va. App. 671, 678,

467 S.E.2d 279, 282, aff’d en banc, 22 Va. App. 625, 472 S.E.2d 287 (1996)).

       Both this Court and the Supreme Court have addressed factually similar cases in which

retired employees have attempted to collect wage indemnity benefits for periods of total

disability occurring after their retirement. In Stebbins, a retired firefighter sought wage

       2
        Although Code § 65.2-101 provides alternate methods of calculating an employee’s
average weekly wage, these methods are inapplicable in this case.


                                                -5-
indemnity benefits for a period of temporary total disability resulting from a heart condition. At

the time his incapacity manifested itself, Stebbins was not employed or seeking employment and

he had not earned wages from any employment since his voluntary retirement approximately two

years earlier. Stebbins, 21 Va. App. at 572, 466 S.E.2d at 126. This Court held that Stebbins

was not entitled to wage indemnity compensation. Id. at 573, 466 S.E.2d at 126. Stebbins had

no average weekly wage because he had reported no earnings during the fifty-two-week period

preceding his incapacity. Id. Due to his voluntary retirement, Stebbins also had not suffered any

loss of wages or economic loss attributable to his period of disability. Id. at 574, 466 S.E.2d at

126. This Court held that

               [a]n award of compensation in these circumstances would result in
               a windfall to Stebbins and place him in a better economic position
               than he would have enjoyed absent an injury. This outcome
               ignores the purpose of the Act, moving beyond compensation for
               loss of work ability and becoming a reward for intangible
               damages.

Id.

       The Supreme Court reached a similar conclusion in Newton v. Fairfax Cnty. Police

Dep’t, 259 Va. 801, 529 S.E.2d 794 (2000). In Newton, a retired police officer was diagnosed

with occupational heart disease following his voluntary retirement. Id. at 803, 529 S.E.2d at 795.

He subsequently died from a fatal heart attack. Id. Like the firefighter in Stebbins, Newton had

not sought employment for the fifty-two-week period preceding his diagnosis and death. Id.

Applying Stebbins, the Supreme Court noted that “Newton had earned no wages during the 52

weeks preceding the date of the communication of the diagnosis of his occupational disease, and,

therefore, [he suffered] no economic loss.” Id. at 805, 529 S.E.2d at 795. The Supreme Court

held that Newton’s statutory beneficiaries were not entitled to wage indemnity benefits under

these circumstances. Id. at 805, 529 S.E.2d at 796.



                                                -6-
       Shaver argues that the present case is distinguishable from Newton and Stebbins because

he earned wage income within the fifty-two-week period preceding his incapacity. Shaver

argues that because he had an average weekly wage based on that income at the time of his

disability, he is entitled to wage indemnity benefits compensating him for the loss of this wage.

Shaver’s contention that he earned wages within fifty-two weeks of his incapacity is correct.

However, the receipt of those wages does not entitle him to wage indemnity benefits under the

particular circumstances of this case. As previously stated, average weekly wages are calculated

“‘to approximate the economic loss suffered by an employee or his beneficiaries when there is a

loss of earning capacity because of work-related injury or death.’” Stebbins, 21 Va. App. at 573,

466 S.E.2d at 126 (quoting Bosworth, 4 Va. App. at 163, 355 S.E.2d at 340). When an employee

does not suffer an economic loss due to a work-related injury, the calculation of an average

weekly wage is irrelevant.

       Although Shaver earned wages within fifty-two weeks of his disability, he did not suffer

an actual loss of wages during his period of disability due to his voluntary retirement. At the

time of Shaver’s incapacity, he had been retired for approximately one and a half months.

Shaver had voluntarily retired from his employment based on his years of service, and he did not

plan to seek any other employment following his retirement.3 Shaver was not receiving any

wages during the period of his disability or planning to earn wages at a later date. Shaver did not

suffer an economic loss in the form of lost wages resulting from his disability. The commission

       3
          We note that retirement alone does not necessarily deprive an individual of his or her
earning capacity. In many cases, retired employees seek other employment following retirement.
As noted in Stebbins, a retired employee may be entitled to wage indemnity compensation if that
person is working in another position following retirement at the time of the occupational
disability, or is actively seeking or planning to seek employment at that time. See Stebbins, 21
Va. App. at 574, 466 S.E.2d at 126. Such a scenario, however, is not before the Court under the
facts of this case as Shaver candidly admitted that he had no intention to seek employment
following his retirement.


                                               -7-
correctly denied Shaver wage indemnity benefits. As noted in Stebbins, an award of wage

indemnity compensation under these circumstances would result in a windfall to Shaver that

would place him in a better economic position than he would have enjoyed absent an injury. See

Stebbins, 21 Va. App. at 574, 466 S.E.2d at 126. This windfall would unjustly enrich Shaver as

long as he received wage indemnity compensation, absent any actual loss of wages, regardless of

whether he had earned wages earlier in the fifty-two-week period preceding his retirement.

       We hold that the commission did not err in denying Shaver wage indemnity benefits

during the period of his total temporary disability. Although an average weekly wage could be

calculated for Shaver because he had earned wages during the fifty-two-week period preceding

his disability, Shaver suffered no loss of wages resulting from his occupational disease. An

award of wage indemnity benefits under these circumstances would unjustly enrich Shaver and

counter the purpose of the Virginia Workers’ Compensation Act. Accordingly, we affirm the

commission’s decision.

                                                                                       Affirmed.




                                               -8-
