VIRGINIA: 04/09/2002
IN THE WORKERS’ COMPENSATION COMMISSION
Settled Pending Appeal
ANGEL MANUEL GARCIA (Deceased), Employee
ELVIRA ALVARENGA, Claimant
Opinion by DIAMOND
Commissioner
v. VWC File No. 202-37-47
W M SCHLOSSER CO., INC., Employer
PENNSYLVANIA MFG. IND. INS. CO., Insurer
Daniel P. Barrera, Esquire
for the Claimant.
Frederick T. Schubert, II, Esquire
for the Defendants.
REVIEW on the record by Commissioner Dudley, Commissioner Tarr, and Commissioner Diamond at Richmond, Virginia.
The claimant requests Review of the deputy commissioner’s April 26, 2001, Opinion. Angel Garcia suffered fatal injuries in a compensable accident on January 12, 2000. The claimant, Garcia’s mother, sought death benefits from the employer, alleging that she was a parent in “destitute circumstances” under Code 65.2-515(A)(4). The deputy commissioner found that the claimant did not meet her burden of proof and denied benefits. We REVERSE.
Garcia was working on a roof on January 12, 2000, when he fell 40 feet, suffering multiple severe injuries, including a depressed skull fracture. Garcia died as a result of these injuries on January 15, 2000. The claimant, who is a citizen of Honduras and lives there, traveled to the United States on a tourist visa in November 2000 and testified in a hearing conducted in this matter on March 16, 2001. According to her testimony, she was scheduled to return to Honduras at the end of March 2001.
The claimant, 53 years old, testified that she received three years of schooling and has worked, selling clothes from her home, until 3 years ago when she quit working because of her poor health. Her children, all adults, live in the United States. She lives with her infant granddaughter and, until her son’s death, her son’s girlfriend and that woman’s three children. She stated that she supported her granddaughter with financial assistance from the child’s mother, the claimant’s daughter.
The claimant testified that she has suffered from poor health since 1990. She was diagnosed with “nervous tension and headaches and fainting” and also described suffering convulsions. She received treatment for these conditions in Honduras, and after coming to the United States in November 2000, has been diagnosed with and treated for diabetes and hypertension. She stated that she has been unable to work because of her health for three years.
The claimant described her living conditions. Her residence was in a small town, “like the country.” It had two bedrooms, a kitchen, and a living area, and was still in a state of being constructed. It had electricity and water, but no bathroom or hot water. The claimant cooked on a wood stove. She also described having some furnishings, including a sofa, coffee table, table, chairs, bed, television, refrigerator, and freezer. She stated that she began building the house on land she purchased for $2,000 in 1979. She stated that the remaining construction on the house consisted of “roof, paint, and the wall.”
The claimant also described her monetary assets and income. Basically, she relied on her adult children for her support. She was required to collect approximately $7,000 to hold on deposit before she could acquire a tourist visa. She stated that her daughter forwarded her this money, over time, which she stated was held in her name but belonged to her daughter. She stated that she did not use this money for personal reasons. She described the income she received from her children, which was irregular and of varying amounts. Her sister, a resident of El Salvador, testified that she had, on occasion, delivered money to the claimant from her children for a fee. She had records from July 1999 through January 2000, showing deliveries to the claimant totaling $2,660 for this period.
The claimant estimated that her monthly expenses were $350, including $100 per month for a freezer purchased on credit after Garcia’s death. When asked how she would support herself when she returned, the claimant responded, “I don’t know.” She stated that she relied on friends, family, and neighbors for transportation for medical treatment.
Under Code 65.2-307, when an employee suffers an “injury or death by accident” caused by his or her employment, the employee and his or her “personal representative, parents, dependents or next of kin” are unable to seek a remedy under common law for the injury or death. Instead, these persons are provided a remedy under the Act, set forth in Code 65.2-512 & -515, in exchange for their common-law remedy. Briefly, the Act allows a parent of a deceased employee to collect death benefits, based on the employee’s average weekly wage, if the parent was dependent on the employee. The parent is presumed to be dependent if it is shown that the parent was in “destitute circumstances.”
In Bagwell v. Doyle & Russell, 187 Va. 844, 48 S.E.2d 229 (1948), the Supreme Court examined the factors to be evaluated in determining whether a parent of a deceased employee was in “destitute circumstances.” In Bagwell, a father of a deceased employee sought death benefits. The evidence showed that the father was married and basically supported by his wife and children. He suffered from several physical ailments, but was capable of light work. He had two unmarried adult children living with him “with sufficient income to provide for his support.” Id. at 849, 48 S.E.2d at 231.
The Court was persuaded, however, that the father showed that he was in destitute circumstances. The Court reasoned that despite the father’s physical ability to perform light work, his lack of education and experience were a bar to any “reasonable hope of employment.” Moreover, his physical condition and age “undoubtedly impair[ed] his ability and undermine[d] his endurance.” The Court also established that the standard to be used in evaluating these factors was whether the father was capable of “earning his livelihood.” Id. at 852-53, 48 S.E.2d at 233.
As for the contribution of the father’s wife and children, the Court declined to consider this potential income, reasoning that such support “by no means insures the parent a continuous livelihood for any definite period.” The Act, on the other hand, allowed (at that time) for a reasonably comfortable livelihood for nearly six years. It is not accompanied by contingencies or uncertainties. We think it was the intent of the Act to provide this security. Id. at 854-55, 48 S.E.2d at 234. The Court found justification for its holding in the Act’s prevention of the father from pursuing a common-law remedy against the employer.
In Covey v. Suburban Masonry, 70 O.I.C. 184 (1991), the Commission examined facts similar to those present here. There, a deceased employee’s parents were found to be “parents in destitute circumstances.” The parents were able only to earn “meager earnings” and the father was unable to work because of poor health. The mother earned minimal wages from two jobs and supported her husband and a minor child with those earnings. In finding that the parents were in destitute circumstances, the Commission was particularly persuaded by the parents’ financial vulnerability, reasoning as follows: “A family of three which has earning potential allowing it to eke out no more than a bare existence with no resources to provide against natural or inevitable emergencies such as medical emergencies or breakdown of transportation, heating, or electrical systems, is properly described as destitute.” Id. at 188.
In this case the evidence showed that the claimant has not been gainfully employed for three years because of her health. Her testimony that she has suffered from poor health was corroborated by the treatment she has received since coming to the United States for diabetes and hypertension. We note that both of these conditions typically require frequent, regular follow-up treatment, and the claimant has no health insurance. Moreover, even if the claimant were considered capable of working, her only work has been bartering clothing from her home. She is 53 with three years of education and poor health. We do not believe that under these circumstances she has a reasonably good chance of earning her livelihood. Her testimony was that she did not know how she would support herself.
Additionally, the claimant has been unable to support herself for some time. She has relied on the generosity of her children, family, and friends to give her money and provide transportation. Her testimony concerning this support was corroborated by her sister’s testimony and records. She lives in an unfinished home with meager furnishings and conveniences, with no bathroom or hot water. Nevertheless, she has cared for her granddaughter and other persons under these conditions, exclusively at the uncertain provision of her children. This support clearly is fraught with “contingencies” and “uncertainties.”
The lack of health insurance and her meager assets leave the claimant prone to financial disaster even in conducting her routine affairs. We believe that the claimant has met her burden of establishing that she is in destitute circumstances. See Payne v. Sprinkle Masonry, Inc., 68 O.I.C. 156, 159 (1989).
The deputy commissioner was concerned with the approximately $7,000 balance held in the claimant’s name used to help the claimant secure her tourist visa. The claimant testified, however, that her daughter provided her with this money and that its exclusive purpose was to secure the visa, after which time the money belonged to her daughter. Regardless, considering the death benefits allowed by the Act, we believe that this amount was negligible.
The deputy commissioner also looked to the claimant’s apparent ability “to keep up with her monthly expenses since her son’s death. The evidence showed, however, that this “ability” was subject to her children’s support. As set forth in Bagwell, however, this consideration was inappropriate. As for the employer’s reliance on Oil Transport, Inc. v. Jordan, 22 Va. App. 633, 472 S.E.2d 291 (1996), the parent there had regular income from an annuity and from social security, thus undermining any finding that she was “financially vulnerable.”
We therefore find that Elvira Alvarenga is a parent in destitute circumstances.
For these reasons, the April 26, 2001, Opinion is REVERSED. This matter is REMANDED to the deputy commissioner for entry of an appropriate Award.
TARR, COMMISSIONER, Dissenting:
I respectfully dissent from the majority’s Opinion.
The evidence supports the Deputy Commissioner’s determinations that Ms. Alvarenga is not disabled and is not a parent in destitute circumstances.
There is no medical evidence that supports the claimant’s allegations of disability. Contrary to this claim is the fact that at the time of Mr. Garcia’s death, Ms. Alvarenga was able to care for her granddaughter, her son’s girlfriend, and three of the girlfriend’s children.
As to whether Ms. Alvarenga is a parent in destitute circumstances, the Deputy Commissioner held she was not. The Deputy Commissioner noted that the claimant was capable of working, that her longtime career of selling clothing from her home allowed her to buy land and build a home with electricity, water and a number of modern appliances, save about $7,000 and “there is no indication that she has not been able to keep up with her monthly expenses since (her son’s) death as she was before.”
I agree with the Deputy Commissioner that the burden of proof was not met and would affirm.
APPEAL
This Opinion shall be final unless appealed to the Virginia Court of Appeals within thirty days of receipt of this Opinion.
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