COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued at Alexandria, Virginia 

ARLINGTON COUNTY FIRE DEPARTMENT 

v. Record No. 1199-95-4 OPINION BY 

 JUDGE NELSON T. OVERTON 

DAVID W. STEBBINS JANUARY 30, 1996 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Anthony P. Hudgins, Assistant County Attorney 

(Barbara S. Drake, County Attorney, on 

briefs), for appellant. 

 Laurie D. Waters (Michael A. Kernbach; Jack T. 

Burgess & Associates, P.C., on brief), for 

appellee. 

 In this appeal we consider whether a claimant who has been 

voluntarily retired and unemployed for the preceding fifty-two 

weeks may be awarded compensation for lost wages while recovering 

from a work-related disease. We hold that he may not, and we 

reverse the decision of the commission. 

 David Stebbins was employed as a firefighter and a paramedic 

for the Arlington County Fire Department until his voluntary 

retirement in February, 1992. Since that time, he has not worked 

full-time in any position; he has only worked as a part-time 

doorman at a local bar and as a volunteer at a small store. The 

record contains no evidence of any income from these activities. 

 From June 2 to October 7, 1994, Stebbins was incapacitated 

due to heart disease and subsequent corrective surgery.1

 

 

 1 The commission found that Stebbins was entitled to the 

heart/lung presumption provided for firefighters pursuant to Code 

§ 65.2-402(B). The employer does not raise this issue on appeal. 
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Stebbins applied for lost wages and medical benefits for this 

period, claiming total work incapacity. The commission awarded 

him compensation for total work incapacity at a weekly rate of 

$451. The commission based this amount on Stebbins' salary 

before he retired in 1992 or a similar fire department employee's 

salary in 1994, both of which were higher than the maximum 

compensation rate. Arlington County appeals the award of lost 

wages on the ground that Stebbins was neither employed nor 

seeking employment and therefore lost no actual income. 

 The purpose of the Workers' Compensation Act is to 

compensate employees when they lose an opportunity to engage in 

work after suffering work-related injuries. Potomac Edison Co. 

v. Cash, 18 Va. App. 629, 631, 446 S.E.2d 155, 156 (1994). Based 

on this purpose, the Act compensates injured employees for loss 

of earning capacity. Bosworth v. 7-Up Distrib. Co., 4 Va. App. 

161, 163, 355 S.E.2d 339, 340 (1987). When an employee becomes 

totally incapacitated, the employer must pay during the period of 

incapacity a weekly compensation based on the employee's average 

weekly wage. Code § 65.2-500. The average weekly wage is 

defined as: 

 The 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. 

Code § 65.2-101(1)(a).2

 

 2 The section also contains alternative methods of 

calculating an average weekly wage in special circumstances. 

 When the employment prior to the injury extended 
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 Under this formula, Stebbins is entitled to no compensation 

because he reported no earnings for the preceding fifty-two 

weeks. The 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 work-related 

injury or death." Bosworth, 4 Va. App. at 163, 355 S.E.2d at 

340. Compensation is ultimately dependent upon and determined on 

the loss of wages. Twenty-First Century Concrete, Inc. v. 

Giacchina, 20 Va. App. 326, 331, 457 S.E.2d 379, 381 (1995) 

 

over a period of less than fifty-two weeks, the 

method of dividing the earnings during that period 

by the number of weeks and parts thereof during 

which the employee earned wages shall be followed, 

provided that results fair and just to both 

parties will be thereby obtained. When, by reason 

of a shortness of time during which the employee 

has been in the employment of his employer or the 

casual nature or terms of his employment, it is 

impractical to compute the average weekly wages as 

above defined, regard shall be had to the average 

weekly amount which during the fifty-two weeks 

previous to the injury was being earned by a 

person of the same grade and character employed in 

the same class of employment in the same locality 

or community. 

 b. When for exceptional reasons the foregoing 

would be unfair either to the employer or 

employee, such other method of computing average 

weekly wages may be resorted to as will most 

nearly approximate the amount which the injured 

employee would be earning were it not for the 

injury. 

Code § 65.2-101(1)(a-b). The facts in this case do not justify 

resort to any of these alternative formulae. 
- 4 - 

(allowing compensation for actual lost wages for a claimant who 

had authority to draw wages but did not because he did not work); 

Nicely v. Virginia Elec. & Power Co., 195 Va. 819, 823, 80 S.E.2d 

529, 531 (1954). 

 Stebbins suffered no loss of wages nor any economic loss. 

An award of compensation in these circumstances would result in a 

windfall to Stebbins and place him in a better economic position 

than he would have enjoyed absent an injury. This outcome 

ignores the purpose of the Act, moving beyond compensation for 

loss of work ability and becoming a reward for intangible 

damages. "A proceeding under the Act is not one for damages for 

a wrong done, but to obtain compensation for a loss sustained by 

reason of injury and disability." Dillard v. Industrial Comm'n, 

347 F. Supp. 71, 73 (E.D. Va. 1972), vacated on other grounds, 

416 U.S. 783 (1974). 

 Stebbins argues that his retired status should not preclude 

him from receiving compensation. For this proposition he cites, 

as does the commission below, Revard v. Fairfax County Bd. of 

Supervisors, 70 O.I.C. 154 (1991). His argument fails to address 

the issue squarely. Stebbins' status does not defeat his claim; 

his lack of income does. Had Stebbins, as a retired firefighter, 

been employed at the time of his incapacity, he would have been 

entitled to compensation. Stebbins may have been entitled to 

compensation if he had even been actively seeking employment on 

the basis of lost earning capacity. Neither of these situations 
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comes before the Court. The record before us demonstrates that 

Stebbins had no income for the preceding fifty-two weeks and that 

he was not attempting to earn income at the time of his 

incapacity. 

 Based on these facts, Stebbins cannot receive compensation 

for the period of his total incapacity. The award of the 

commission is vacated. 

 Vacated.