COURT OF APPEALS OF VIRGINIA 

Present: Judges Bumgardner, Humphreys and Clements 

Argued at Salem, Virginia 

ANTHONY LEON CLARK (DECEASED), 

 BY AND THROUGH ODELL T. CLARK 

 MEMORANDUM OPINION* BY 

v. Record No. 0695-00-3 JUDGE ROBERT J. HUMPHREYS 

 NOVEMBER 14, 2000 

LAWHORNE BROTHERS, INC. AND 

 PENNSYLVANIA MANUFACTURING ASSOCIATION 

 INSURANCE COMPANY 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Arelia S. Langhorne for appellant. 

 Frederick T. Schubert, II (Steven H. Theisen; 

Midkiff & Hiner, P.C. on brief), for 

appellees. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication. 

 Anthony Leon Clark ("the decedent"), by and through 

Odell T. Clark ("Odell"), his mother, contends that the Workers' 

Compensation Commission ("commission") erred in finding that 

(1) Odell failed to prove that she was conclusively presumed to 

be wholly dependent upon the decedent, as a parent in destitute 

circumstances within the meaning of Code § 65.2-515(A)(4); 

(2) Odell failed to prove that she was wholly dependent on 

decedent within the meaning of Code § 65.2-516; and (3) on 

review before the full commission, Odell waived her contention 
that she was at least partially dependent on the decedent within 

the meaning of Code § 65.2-516. For the reasons that follow, we 

disagree and affirm the decision of the commission. 

I. Parent in Destitute Circumstances 

On appeal, "we review the evidence in the light most 

favorable to the prevailing party." R.G. Moore Bldg. Corp. v. 

Mullins, 10 Va. App. 211, 212, 390 S.E.2d 788, 788 (1990). 

"[T]he fact that contrary evidence may 

be found in the record is of no consequence 

if credible evidence supports the 

commission's finding." We further recognize 

that findings concerning the status of 

presumptive dependents are factual 

determinations. 

However, the principal issues raised by 

this appeal relate not to the factual 

findings of the commission, but to its 

application of the law to those findings. 

Accordingly, these issues are mixed 

questions of law and fact. [Thus], while we 

must defer to the factual findings of the 

commission with respect to [Odell's] 

finances and work capacity, we review de 

novo the commission's application of the law 

to those findings in determining whether she 

was destitute. 

Roanoke Belt, Inc. v. Mroczkowski, 20 Va. App. 60, 67-68, 455 

S.E.2d 267, 270-71 (1995) (citations omitted). 

The commission made the following findings: 

The evidence shows that [Odell] 

receives $470.00 per month in social 

security benefits [, which is excluded from 

consideration of her destitute circumstances 

pursuant to Id. at 68-69, 455 S.E.2d at 

271]. She has no other income at this time 

but before her son's death, she was working 

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twenty hours per week despite her alleged 

diagnosed high blood pressure. 

[Odell] did not prove that she was 

incapacitated for other employment. She 

presented no medical evidence that her high 

blood pressure prevented her from holding a 

job or that she in fact looked for work 

following her son's death. She owns a car 

and a home valued at $100,000 in which she 

has a 70% equity. She has no dependents and 

has not proven that she does not have 

earning potential. 

In Oil Transport, Inc. v. Jordan, 22 Va. App. 633, 472 

S.E.2d 291 (1996), we noted that 

Code § 65.2-515(A)(4) provides that 

"[p]arents in destitute circumstances, 

provided that there be no total dependents 

pursuant to other provisions of this 

section," are "conclusively presumed to be 

dependents wholly dependent for support upon 

the deceased employee." A parent with "only 

the earning potential sufficient to provide 

no more than a bare existence with no 

resources to provide against anticipated or 

inevitable financial emergencies" is deemed 

"financially vulnerable" and, therefor, 

destitute for the purposes of Code 

§ 65.2-515(A)(4). This status is to be 

determined by the evidence viewed at the 

time of the employee's death.

Id. at 636, 472 S.E.2d at 292 (citations omitted) (emphasis 

added). "[T]he determination of whether a parent is in 

destitute circumstances depends upon various factors, including 

earnings or earning potential, amount of assets, health, age, 

level of formal education, and number of dependents." Roanoke 

Belt, 20 Va. App. at 73, 455 S.E.2d at 273 (emphasis added). 

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Applying these criteria to the facts of this case, we find 

that the commission did not err in concluding that Odell was not 

a parent in destitute circumstances. At the time of the 

decedent's death, Odell was sixty-three years old and worked 

twenty hours per week cleaning offices for ServiceMaster. 

During the month prior to decedent's death, she earned $467. 

There is no evidence that she worked or sought employment after 

decedent's death. She presented no medical evidence to 

substantiate her claim that her "palpitations, high blood 

pressure and emotional state" prevented her from working. 

Furthermore, she owns a four-bedroom home and two acres of land 

in which she has a substantial equity and has no dependents to 

support. Finally, she offered no documentary evidence to 

substantiate her claim that the decedent gave her money toward 

her monthly expenses, and she did not testify to any anticipated 

or inevitable financial emergency. 

II. Actual Dependency 

"Code § 65.2-516 provides that 'questions of 

[non-presumptive] dependency in whole or in part shall be 

determined in accordance with the facts as [they existed] at the 

time of the accident; but no allowance shall be made for any 

payment in lieu of board and lodging or services.'" Id. at 74, 

455 S.E.2d at 274. 

In rejecting Odell's claim that she was actually dependent 

upon the decedent, the commission ruled that the payments she 

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received, if any, were for room and board, and could not be used 

for the purpose of establishing dependency. 

This factual finding is supported by the record. The 

decedent began living with Odell in March, 1998. While Odell 

testified in her deposition that the money decedent gave her was 

to pay her bills and for food, she had previously testified in 

her deposition that the money was for room and board. Moreover, 

Odell produced no documentation to substantiate any contribution 

decedent may have made. 

Based upon this record, we cannot find that the commission 

erred in concluding that Odell failed to prove that she was 

actually dependent upon the decedent. 

III. Partial Dependency 

Odell argues that the commission erred in finding that she 

waived any issue of partial dependency. She suggests that her 

statement that "Anthony continued to help support his mother; he 

gave her $75.00 to $100.00 a week which helped to pay her bills" 

was sufficient to raise the issue. We disagree. 

The record is clear that Odell raised no issue in her 

statement before the commission other than that she was a parent 

in destitute circumstances. She neither briefed nor argued the 

issue of partial dependency before the commission. Accordingly, 

we find that the commission did not abuse its discretion in 

finding that Odell waived the issue of whether she was entitled 

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to death benefits for partial dependency pursuant to Code 

§ 65.2-516. See generally Russell Stover Candies v. Alexander, 

30 Va. App. 812, 824 n.3, 520 S.E.2d 404, 410 n.3 (1999). 

For these reasons, we affirm the decision of the 

commission. 

Affirmed.

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