PRESENT: Carrico, C.J., Lacy, Hassell, Keenan, Koontz, and
Kinser, JJ., and Stephenson, Senior Justice

ROBERT RUSSELL NEWTON (DECEASED), ET AL.
                                           OPINION BY
v.   Record No. 991124   SENIOR JUSTICE ROSCOE B. STEPHENSON, JR.
                                         April 21, 2000
FAIRFAX COUNTY POLICE DEPARTMENT/
  FAIRFAX COUNTY BOARD OF SUPERVISORS

               FROM THE COURT OF APPEALS OF VIRGINIA

      In this appeal, we determine whether the Court of Appeals

erred in holding that the statutory beneficiaries of a deceased

claimant are not entitled to an award of indemnity benefits

under the Virginia Workers' Compensation Act, Code § 65.2-100 et

seq. (the Act).

                                 I

      On July 23, 1996, the statutory beneficiaries of Robert R.

Newton (the Claimants) filed with the Workers' Compensation

Commission (the Commission) a claim for benefits against the

Fairfax County Police Department and the Fairfax County Board of

Supervisors (the Employer).   The Claimants sought compensation

and medical and funeral expenses pursuant to Code § 65.2-512 as

a result of Newton's death caused by an occupational disease.

The Employer accepted the claim as compensable and paid the

medical and funeral expenses.   The Employer, however, denied the

claim for weekly indemnity benefits.

      A deputy commissioner and, thereafter, the full commission

decided that the Claimants were not entitled to indemnity
benefits because Newton had not received any wages in the 52

weeks preceding both his death and the date of the communication

of the diagnosis of the disease.

     On April 27, 1999, in an unpublished opinion, the Court of

Appeals affirmed the Commission's decision. 1    We awarded this

appeal, finding that the case has significant precedential

value.   Code § 17.1-410 (formerly Code § 17-116.07).

                                 II

     The facts are undisputed.     Newton had worked for the

Fairfax County Police Department for 21 years when, on December

11, 1993, he voluntarily retired.      On May 23, 1996, Newton had

received a communication of the diagnosis of heart disease, an

occupational disease, and, on June 9, 1996, he suffered a fatal

heart attack.

     Newton had not sought employment during the 52-week periods

preceding both the date of the communication of his diagnosis

and the date of his death, and he had received no earnings from

employment during those 52-week periods.     During his retirement,

Newton had received a monthly benefit of $2,459.44.     Upon

Newton's death, the monthly benefit payable to his wife




1
  Robert Russell Newton, et al. v. Fairfax County Police
Department/Fairfax County Board of Supervisors, Record No. 1672-
98-4.



                                   2
decreased to $1,329.17.   Each minor child received a monthly

benefit of $531.66.

                                III


     Code § 65.2-512(A) of the Act provides, in pertinent part,

that, "[i]f death results from [an] accident within nine years,

the employer shall pay . . . compensation in weekly payments

equal to 66 2/3 percent of the employee's average weekly wages."

Code § 65.2-101 defines "average weekly wage" to mean, in

relevant part, "[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 fifty-two weeks immediately preceding the

date of the injury, divided by fifty-two."   With respect to

claims based upon occupational disease, Code § 65.2-403(A)

provides that the date of the "first communication of the

diagnosis of an occupational disease to the employee or death of

the employee resulting from an occupational disease . . . shall

be treated as the happening of an injury by accident."

     In denying the Claimants indemnity benefits, the Court of

Appeals relied upon its holding in Arlington County Fire Dept.

v. Stebbins, 21 Va. App. 570, 466 S.E.2d 124 (1996).     In

Stebbins, the Court of Appeals held that a firefighter, who was

disabled from heart disease, was not entitled to compensation

for lost wages because he had earned no wages during the 52



                                 3
weeks preceding his total incapacity.     The Court explained that

the average weekly wage is calculated in order to approximate

the economic loss sustained by an employee suffering from a

work-related injury or by his statutory beneficiaries in the

case of his work-related death.    Thus, the Court stated,

"[c]ompensation is ultimately dependent upon and determined on

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

     The Court of Appeals found the present case to be

indistinguishable from Stebbins.      The Court concluded that,

"[w]hether 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."   In either event, the Court concluded, "the

determination of the amount of any indemnity benefits due the

employee or his . . . 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."     We agree.

     Newton had voluntarily removed himself from employment more

than two years before his death, and he was not even looking for

work at the time of his death.    As with the employee in

Stebbins, Newton had earned no wages during the 52 weeks

preceding the date of the communication of the diagnosis of his


                                  4
occupational disease, and, therefore, there was no economic

loss.

        The Claimants contend, however, that the Court of Appeals'

holdings in Stebbins and the present case are "in clear conflict

with the intent of the Workers' Compensation Act."     They assert

that, with respect to an occupational disease, the General

Assembly intended the average-weekly-wage award to be based upon

the wages received from the employment in which the employee was

last exposed to the harmful element.     Thus, according to the

Claimants, their indemnity award should be based on the wages

earned by Newton in the 52 weeks preceding the date he retired

from the police department.     In support of their contention, the

Claimants rely upon Roller v. Basic Construction Co., 238 Va.

321, 384 S.E.2d 323 (1989), and C & P Telephone Co. v. Williams,

10 Va. App. 516, 392 S.E.2d 846 (1990).

        Roller is inapposite.   There, we did not consider the issue

that is before us in the present case.     The sole issue in Roller

was whether a claimant's right to benefits was barred by the

statute of limitations.

        Williams is distinguishable in that, in Williams, the

employee earned wages during the 52-week period prior to the

date of the communication to him of the diagnosis of his

occupational disease.    Therefore, the employee had sustained an

economic loss at the time of the termination of his employment,


                                    5
which occurred shortly before his diagnosis.   Moreover, the sole

issue considered by the Court of Appeals was whether the

Commission erred in the computation of the employee's average

weekly wage; the employer did not challenge the employee's

entitlement to benefits. 2

     We hold, therefore, that the 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.   Accordingly, the judgment of the Court of Appeals will

be affirmed.

                                                           Affirmed.




2
  We express no opinion whether, in Williams, the Court of
Appeals was correct in holding that the Commission did not err
in its calculation.



                                 6
