Thomas Refuse Service, et al. v Flood, et al.

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Benton, Coleman and Elder
Argued at Richmond, Virginia
THOMAS REFUSE SERVICE AND
LIBERTY MUTUAL INSURANCE COMPANY
OPINION BY
v. 	Record No. 1655-98-2 	JUDGE SAM W. COLEMAN III
JUNE 8, 1999
KENDELL M. FLOOD, MICHELE FLOOD,
JAMAAL SHANNON MITCHENER AND
KENDELL TYRONE FLOOD
FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION
R. Ferrell Newman (Anne M. Dobson; Thompson,
Smithers, Newman & Wade, on brief), for
appellants.
Louis D. Snesil (Louis D. Snesil, P.C., on
brief), for appellees.
In this Workers’ Compensation Commission appeal, we consider
the application of Code § 65.2-511 to a deceased employee who was
under an award for temporary total incapacity when he died from
unrelated causes. 	Specifically, we determine whether an
employee’s statutory dependents are entitled to claim the
employee’s scheduled permanent partial loss benefits under Code
§ 65.2-503(B) for loss of an arm and a leg, when the deceased
employee was still under an award for temporary total incapacity
and had claimed neither permanent total nor permanent partial
incapacity before his death. 	We hold that the Workers’
Compensation Commission did not err by awarding the scheduled

benefits to the employee’s statutory beneficiaries. 	Therefore, we
affirm the award.
BACKGROUND
Kendell Flood suffered a compensable injury in a work-related
automobile accident rendering him a quadriplegic. 	The Workers’
Compensation Commission granted him temporary total incapacity
benefits. 	Although eligible for permanent total incapacity
benefits under Code § 65.2-503(C) for the loss of both arms and
both legs, Flood never claimed those benefits and was under the
temporary total incapacity award at the time of his death. 	When
Flood died from unrelated causes, his statutory dependents filed a
claim under Code § 65.2-511 for permanent partial loss benefits
based on Flood’s 100% loss of use of his four extremities. 	See
Code § 65.2-503(B). 	The commission determined that prior to his
death, Flood was eligible under Code § 65.2-503(B) for permanent
partial loss benefits and therefore, the remaining 148.71 weeks of
benefits to which Flood would have been entitled survived his
death under Code § 65.2-511. 	Accordingly, the commission awarded
the statutory dependents 148.71 weeks of benefits.
Thomas Refuse Service (employer) asserts that due to the
severity of his injury, Flood was never entitled to permanent
partial loss benefits under Code § 65.2-503(B), which was the
basis for the commission’s award. 	Employer contends that because
Flood met the criteria for permanent and total incapacity under
Code § 65.2-503(C), he did not qualify for scheduled benefits
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under Code § 65.2-503(B). 	Employer contends Code § 65.2-503(C)
would require compensation to be awarded to Flood pursuant to Code
§ 65.2-500; thus, under Code § 65.2-500(D), his benefits would
have been limited to his lifetime and his dependents have no claim
to assert.
ANALYSIS
The commission’s conclusions of law are not binding on this
Court. 	See Robinson v. Salvation Army, 20 Va. App. 570, 572, 459
S.E.2d 103, 104 (1995). 	However, the commission’s construction of
the Workers’ Compensation Act is entitled to great weight on
appeal. 	See Wiggins v. Fairfax Park Ltd., 22 Va. App. 432, 441,
470 S.E.2d 591, 596 (1996).
In pertinent part, Code § 65.2-511 provides as follows:
When an employee received or is entitled to
compensation under this title for an injury
covered by § 65.2-503 and dies from a cause
other than the injury for which he was
entitled to compensation, payment of the
unpaid balance of compensation shall be made
to his statutory dependents under this
chapter, in lieu of the compensation the
employee would have been entitled to had he
lived.
Code § 65.2-511 (emphasis added).
Code § 65.2-511 includes claims under Code § 65.2-503 for
“scheduled” benefits to which a claimant “is entitled” prior to
death even though benefits had not been actually awarded under
Code § 65.2-503. 	See, e.g., Jarvis v. Gale, 20 O.I.C. 310, 312
(1938) (holding that dependents could claim employee’s scheduled
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benefits for partial disability even though employee had made no
efforts to claim them before he died). 	Accordingly, if Code
§ 65.2-503 entitled Flood to “scheduled” benefits prior to his
death, his dependents are entitled to those benefits under Code
§ 65.2-511.
The employer claims that Flood would have been entitled to
permanent total disability benefits which would have ceased at
death, not “scheduled” benefits for loss of use of specific
members. 	Code § 65.2-503 addresses, among other matters,
compensation for “scheduled” benefits for permanent partial and
permanent total loss or loss of use of members. 	Code
§ 65.2-503(B) lists the scheduled benefits due for loss or loss
of use of each member. 	However, Code § 65.2-503(C) also sets
forth the criteria under which a claimant qualifies for
permanent total incapacity. 	Code § 65.2-503(C), in subsections
one through three, states that “[c]ompensation shall be awarded
pursuant to § 65.2-500 for permanent and total incapacity when
there is” loss of any two qualifying members in the same
accident, total paralysis, or injury to the brain that renders
the employee unemployable. 	Code § 65.2-503(C)(1) to (3).
The commission held, and we agree, that Code § 65.2-511
permits Flood’s dependents to collect the scheduled benefits to
which Flood was entitled before his death. 	Although Flood, as a
quadriplegic, could have qualified for permanent and total
incapacity benefits under Code § 65.2-503(C), he also could have
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qualified for and would have been “entitled” to scheduled
benefits under Code § 65.2-503(B). 	Because Flood would have
been “entitled” to an award of scheduled benefits at the time of
his death, his statutory dependents were entitled under Code
§ 65.2-511 to the balance of benefits to which Flood would have
been entitled under Code § 65.2-503(B).
Accordingly, we affirm the commission’s decision.
Affirmed.
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