Commonwealth/Dept of Transport. v Jimmy K. Swiney

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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

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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
1Code § 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.

Accordingly, the decision of the commission is affirmed.

Affirmed.