                   COURT OF APPEALS OF VIRGINIA


Present: Judge Bray, Senior Judges Duff and Overton
Argued at Alexandria, Virginia


ROBERT RUSSELL NEWTON,
 KATHLEEN HONEY NEWTON,
 ROBERT RUSSELL NEWTON, JR.,
 AND MISTY NICOLE NEWTON
                                         MEMORANDUM OPINION * BY
v.   Record No. 1672-98-4                JUDGE CHARLES H. DUFF
                                             APRIL 27, 1999
FAIRFAX COUNTY POLICE DEPARTMENT/
 FAIRFAX COUNTY BOARD OF SUPERVISORS


         FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

           Michael A. Kernbach (Jack T. Burgess &
           Associates, P.C., on brief), for appellants.

           Ann Gouldin Killalea, Assistant County
           Attorney, (David P. Bobzien, County Attorney;
           Robert Lyndon Howell, Deputy County Attorney,
           on brief), for appellee.


     Robert Russell Newton ("deceased employee"), Kathleen Honey

Newton (widow), Robert Russell Newton, Jr. (son), and Misty Nicole

Newton (daughter) (hereinafter referred to as "the statutory

beneficiaries") appeal a decision of the Workers' Compensation

Commission ("commission") denying their claim for benefits.    The

statutory beneficiaries contend that the commission erred in

finding that this Court's holding in Arlington County Fire Dept.

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


     *
      Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.
award of indemnity benefits to them pursuant to Code § 65.2-512,

where the deceased employee had voluntarily retired and earned no

wages during the fifty-two weeks immediately preceding his death

or within the fifty-two weeks immediately preceding the

communication of the diagnosis of the occupational disease

resulting in his death.   Because we find that Stebbins is

dispositive of this case, we affirm the commission's decision.

     The facts are undisputed.    The deceased employee worked for

Fairfax County Police Department ("employer") for twenty-one years

before retiring on December 11, 1993.    On June 9, 1996, the

deceased employee suffered a fatal heart attack.   On July 23,

1996, the statutory beneficiaries filed a claim for benefits

alleging an occupational heart disease.   Employer stipulated that

the claim was compensable under the presumption provided in Code

§ 65.2-402 and accepted responsibility for medical and funeral

expenses.   However, employer denied responsibility for weekly

indemnity benefits.

     On March 31, 1998, the parties stipulated to these additional

facts:

            1. The deceased [employee] received a
            communication of an occupational disease,
            heart disease, on or about May 23, 1996.

            2. The deceased [employee] was not seeking
            employment within the 52 weeks preceding the
            date of communication of the diagnosis of the
            occupational disease or the date of death.

            3. The deceased [employee] received no
            earnings from employment during the 52 weeks

                                 - 2 -
          preceding the date of communication of the
          diagnosis of the occupational disease or the
          date of death. The deceased [employee] had
          voluntarily retired on December 11, 1993 and
          was receiving a monthly retirement benefit in
          the amount of $2,459.44. Upon his death, the
          monthly retirement benefit decreased to
          $1,329.17, payable to his wife, and $531.66
          to each minor child.

     In denying the statutory beneficiaries' claim for indemnity

benefits, the commission found as follows:

          The purpose of weekly compensation benefits
          for temporary total or temporary partial
          disability is wage replacement. The weekly
          benefits to an injured worker directly relate
          to his earnings. Similarly, the purpose of
          the weekly compensation death benefits, based
          on the decedent's average weekly wage, is to
          replace the wages lost to the dependents as a
          result of the death. Accordingly, the weekly
          benefits directly relate to the decedent's
          earnings, just as the benefits to an injured
          employee directly relate to his earnings. In
          the case of death benefits, the statutory
          dependents' eligibility for the benefits
          pursuant to Code § 65.2-512 are based on the
          relationship between the decedent and the
          dependents. These benefits are not abrogated
          by the fact that the decedent may not have
          had a wage loss. Only the amount of the
          benefits are affected by the apparent lack of
          wage loss. Thus, the dependents may receive
          the burial and transportation expenses
          provided by the statute. However, pursuant
          to the reasoning in Stebbins, no indemnity
          benefits should be awarded if the decedent
          had no income for the 52 weeks preceding the
          communication of the diagnosis.

     Code § 65.2-512(A) provides that "[i]f death results from

[an] accident within nine years, the employer shall pay, or

cause to be paid, compensation in weekly payments equal to 66

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

                              - 3 -
Code § 65.2-101 defines "average weekly wage" to mean "[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 . . . ."   In occupational disease cases,

the date of the first communication of the diagnosis of the

occupational disease or death resulting from the occupational

disease is treated as the happening of an injury by accident.

See Code § 65.2-403.

     In Stebbins, this Court held that a firefighter disabled

from heart disease was not entitled to compensation for lost

wages where he earned no wages during the fifty-two weeks

preceding his total incapacity.    See Stebbins, 21 Va. App. at

573, 466 S.E.2d at 126.    In Stebbins, we recognized that

          [t]he result from this strict reading of the
          statute comports with the rationale found in
          prior Virginia cases. "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 a
          work-related injury or death." Compensation
          is ultimately dependent upon and determined
          on the loss of wages.

Id. (citations omitted).

     The commission's decision is fully supported by our holding

in Stebbins.   Based on the facts of this case, the deceased

employee, similar to Stebbins, "suffered no loss of wages nor

any economic loss."    Id. at 574, 466 S.E.2d at 126.   Thus, "[a]n


                                - 4 -
award of compensation in these circumstances would result in a

windfall to [the statutory beneficiaries] . . . ."   Id.

     Here, the deceased employee voluntarily retired in 1993.

He was not employed at the time of his death.   He had not earned

wages during the fifty-two weeks immediately preceding the

communication of the diagnosis of his occupational disease or

during the fifty-two weeks immediately preceding his death.    In

addition, he was not actively seeking employment at the time of

his death.   We find no basis upon which to distinguish this case

from Stebbins.   Whether 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.   Under either scenario, the determination of

the amount of any indemnity benefits due the employee or his or

her 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.   In this case, the

parties stipulated that the deceased employee had no such wages

and he was not actively seeking employment at the time of his

death.   Therefore, he had no average weekly wage upon which to

base an award of indemnity benefits.




                               - 5 -
     Based upon the facts of this case and our holding in

Stebbins, 1 we cannot find that the commission erred in denying

the statutory beneficiaries' claim for indemnity benefits.

     Accordingly, we affirm the commission's decision. 2

                                                           Affirmed.




     1
      We note that the General Assembly has not amended the
Workers' Compensation Act so as to negate the Stebbins decision.
     2
      Appellants have filed a "Motion for En Banc Review."     We
deny that motion.


                              - 6 -
