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Roanoke Belt Inc. v. Mroczkowski3/28/1995
der subsection (A)(1) to time of death of the
employee-husband); see also Dunn v. Industrial Commission, 177 Ariz. 190, 866 P.2d 858, 865 (Ariz. 1994) (treating death as the injury).
Mrs. Mroczkowski nevertheless asserts that later events may be considered "to demonstrate that financial vulnerability . . . existed as of the date of death [of Martin]." She asserts that, as her unemployment benefits were limited in scope and her ability to find employment is limited by her medical condition, education and lack of a driver's license, the commission properly considered her actual and potential financial circumstances rather than her personal and financial circumstances as of the date of Martin's death. The thrust of Mrs. Mroczkowski's assertion is that, at the time of Martin's death, and in fact at the time of the hearing before the deputy commissioner, the evidence established that her unemployment benefits would terminate approximately one month after Martin's death and, thus, she was destitute at the time of Martin's death because she was financially vulnerable at that time.
Although the commission used the concept of financial vulnerability as "a major factor in determining destitute circumstances," neither party has cited a Virginia appellate decision supporting that concept, and we have found none. Nevertheless, we believe the concept is sound, consistent with the humane purpose of our Workers' Compensation Act, and based upon common sense and the realities of human experience. Thus, we agree that where the evidence viewed at the time of the employee's death establishes that a claimant for survivor's benefits has only the earning potential sufficient to provide no more than a bare existence with no resources to provide against reasonably anticipated or inevitable financial emergencies, such a claimant is properly determined to be financially vulnerable and, thus, destitute for purposes of the Code § 65.2-515(A)(4) analysis. See generally Covey v. Suburban Masonry, 70 O.I.C. 184 (1991).
Although the concept of financial vulnerability involves a current circumstance that contemplates a future negative
event, it does not include future events that are speculative or uncertain as determined at the time of death of the employee. Virginia is apparently alone among the states in permitting parents in destitute circumstances to claim presumptive status as dependents under our workers' compensation law. This provision compliments Code § 20-88, which requires adult children to provide support to a parent in "necessitous circumstances;" necessitous circumstances are defined as "living in or characterized by poverty . . . narrow, destitute, pinching, pinched." Mitchell-Powers Hardware Co. v. Eaton, 171 Va. 255, 262, 198 S.E. 496, 499 (1938).
However, just as Code § 20-88 could not bind the estate of a deceased child to retain assets for the prospective need of a surviving parent, Code § 65.2-515(A)(4) ought not require an employer to await the possible destitution of a parent of a deceased employee. This interpretation not only provides repose to the employer, but also assures that beneficiaries of lesser entitlement will not have their benefits denied on the ground that a superior beneficiary has a potential claim. See Code § 65.2-512(C) (partial dependents cannot receive benefits if a superior total dependent is entitled to benefits).
For these reasons, we hold that where a parent asserts financia
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