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Roanoke Belt Inc. v. Mroczkowski3/28/1995
[20 VaApp Page 63] In this appeal we are required to address a number of issues of first impression with respect to the eligibility of a parent of a deceased employee to receive benefits under the Virginia Workers' Compensation Act. Roanoke Belt, Inc. and
its insurer, Travelers Insurance Co. (collectively Roanoke Belt), appeal an award by the Virginia Workers' Compensation Commission (commission) pursuant to Code § 65.2-515(A)(4) to Linda Phyllis Jacobs Mroczkowski (Mrs. Mroczkowski) arising out of the death of her son in a compensable industrial accident.
In reply, Mrs. Mroczkowski, pursuant to her right under Rule 5A:21(b), raises the additional issues of (1) whether the commission's finding that she is a parent in destitute circumstances is reviewable as a finding of fact or question of law, and (2) whether the commission erred in finding that she was not, in the alternative, entitled to benefits as a partial dependent pursuant to Code § 65.2-516. For the following reasons, we reverse the commission's award.
I.
FACTUAL BACKGROUND
The material facts are not in dispute. In October 1991, following the death of her husband, Mrs. Mroczkowski and her two minor daughters moved from Brooklyn, New York to Roanoke, Virginia. She rented a three-bedroom apartment with the expectation that her twenty-one year old son, Martin Matthew Mroczkowski (Martin), would subsequently come to live with her and his sisters. In April 1992, Martin and his girlfriend, Renee Krol, moved into this apartment with the other members of the family. In May 1992, Martin became employed with Roanoke Belt and subsequently was killed in a compensable accident on September 29, 1992.
Prior to moving to Roanoke, Mrs. Mroczkowski was a computer loan analyst for a New York bank and earned an annual salary of $32,000. When the bank began "downsizing" its staff, she voluntarily took a package of pension and unemployment benefits so that she could move out of New York. At the time of Martin's death, Mrs. Mroczkowski was receiving $1,200 per month in unemployment benefits from New York and held approximately $12,000 in an individual retirement account in a local bank. Mrs. Mroczkowski also was
receiving $1,000 per month in social security benefits on behalf of her daughters as surviving dependents of her deceased husband. She owned no real estate or personal property other than incidental household items. She had no medical insurance.
After Martin became employed with Roanoke Belt, he began paying Mrs. Mroczkowski $75-100 per week for household expenses, including room and board for himself and Renee Krol. Expenses for the whole family amounted to approximately $1,000 per month, including $525 rent for the apartment. In addition, Martin provided transportation to his mother and sisters, went to the grocery store, occasionally contributed items of clothing for his sisters and acted "as the man of the house." Mrs. Mroczkowski did not have a New York or Virginia operator's license.
Mrs. Mroczkowski is forty-five years old and, although she suffers from a respiratory condition, is neither physically or mentally disabled from gainful employment. She has a high school education. Mrs. Mroczkowski maintains, however, that she has been unable to secure employment in Roanoke.
Following her son's death, Mrs. Mroczkowski applied to the commission for survivor's benefits, alleging that she was a destitute parent entitled to benefits as a presumptive total
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