                  COURT OF APPEALS OF VIRGINIA


Present: Judges Baker, Coleman and Elder
Argued at Salem, Virginia


COMMONWEALTH OF VIRGINIA/
 DEPARTMENT OF TRANSPORTATION
                                              OPINION
v.        Record No. 0138-96-3        BY JUDGE JOSEPH E. BAKER
                                          NOVEMBER 19, 1996
JIMMY K. SWINEY


       FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
          Ingrid E. Olson, Assistant Attorney General
          (James S. Gilmore, III, Attorney General;
          Gregory Lucyk, Senior Assistant Attorney
          General, on brief), for appellant.

          No brief or argument for appellee.



     The Department of Transportation (employer) appeals from a

decision of the Workers' Compensation Commission (commission)

denying employer's request to suspend an order of compensation to

Jimmy K. Swiney (claimant).    Employer argues that claimant was

ineligible for workers' compensation benefits because claimant

was "[r]eceiving wages due to the Workforce Transition Act
directly from the employer as of 5/1/95."   We disagree and affirm

the commission's decision that payments made under the Workforce

Transition Act (WTA) are not "wages" for purposes of the Workers'

Compensation Act (Act).

     Claimant, a fifty-five-year-old male, was employed by

employer for nineteen years.    On December 27, 1990, claimant

sustained an on-the-job injury.   The commission found the injury

to be compensable and entered an appropriate award.   After the
entry of that award, claimant was offered early separation from

his employer pursuant to the provisions of the WTA. 1    In

consideration of his early separation, claimant was offered the

immediate lump sum payment of $5,000 and, additionally,

$18,553.68 to be paid in weekly sums of $515.38.     The $5,000 was

paid in lieu of any unemployment claim to which claimant may have

been entitled.    Claimant accepted the offer and voluntarily

resigned from his employment.
        Thereafter, on May 15, 1995, the commission entered a

further award based upon the injury claimant sustained in his

December 27, 1990 accident.      This subsequent award directed

employer to pay claimant $278.32 weekly beginning January 23,

1995 for temporary total disability.      The sum was calculated from

claimant's average weekly wage of $515.

        On June 2, 1995, employer filed an application for hearing,

requesting that the commission suspend its order requiring

employer to pay the $278.32 weekly benefit.     Employer asserted

that claimant was receiving "wages" from employer pursuant to the

WTA, which relieved employer from making any workers'

compensation payments that may have otherwise been due claimant.

 The commission found that payments made to claimant pursuant to

the WTA are not "wages" and denied employer's request.        Employer

contends that the commission erred when it found the WTA payments

were not "wages" for purposes of the Act.     The sole issue
    1
     Code § 2.1-116.20 et seq.




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presented by this appeal is whether the payments made or to be

made to claimant pursuant to the WTA are "wages" within the

provisions of the Act.

     In Fidelity Ins., Trust & Safe Deposit Co. v. Shenandoah

Valley R.R. Co., 86 Va. 1, 8, 9 S.E. 759, 761-62 (1889), the

Supreme Court of Virginia approved Bouvier's definition of wages

as "a compensation given to a hired person for his or her

services."    No Virginia Supreme Court decision has changed that

definition.    Black's Law Dictionary 1416 (5th ed. 1979), states

that wages are "compensation of employees based on time worked or

output of production."    Every authority agrees that "wages" are

compensation paid for work performed or services rendered.     See 2

Arthur Larson, The Law of Workmen's Compensation § 60.12 (1986).

 The money paid to claimant pursuant to the WTA was not for work

or services rendered to employer, but to induce him not to work

and to discontinue his service to employer.

     Employer contends that benefits provided under the WTA fall

within the case law definition of "wages."    This Court has held

that "wages" is a term applied to compensation paid to a worker

"as consideration for work," which constitutes an economic gain

for the employee.    Southwest Architectural Prods., Inc. v. Smith,

4 Va. App. 474, 480, 358 S.E.2d 745, 748 (1987); Bosworth v. 7-Up

Distrib. Co. of Fredericksburg, Inc., 4 Va. App. 161, 163, 355

S.E.2d 339, 341 (1987).   None of these cases require the

commission to grant employer's request to suspend compensation it



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was ordered to pay claimant.

        Employer contends that Roanoke Belt, Inc. v. Mroczkowski, 20

Va. App. 60, 455 S.E.2d 267 (1995), declared unemployment

benefits to be "wages."    We disagree.    The issue in that case was

whether such benefits "should be considered as income in the

dependency-destitution calculus" for determining eligibility for

death benefits.     Id. at 60-70, 455 S.E.2d at 272.   That case is

inapposite to the issue before us.       A case more on point is City
of Alexandria v. McClary, 167 Va. 199, 188 S.E. 158 (1936).       In

McClary, a city policeman was killed outside the city while on

assignment assisting federal officers in making an arrest.      His

widow received a Virginia Workers' Compensation award of $75 per

week.    Subsequently, Congress made a federal death benefit award

to the widow in full satisfaction of any claim the widow may have

had against the United States as a result of the incident.      The

Court denied the city's request to permit it to offset sums

received by the widow against its workers' compensation

liability.     Id. at 205, 188 S.E. at 161.

        We hold that nothing in the WTA discloses a legislative

intent that payments made pursuant to its provisions are to be

considered "wages" as that term is used in the Act.      The payments

made pursuant to the agreement with claimant were not for work

performed or services rendered to employer in anticipation of

compensation, but were to induce claimant not to perform work for

employer.




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Accordingly, the decision of the commission is affirmed.

                                                   Affirmed.




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