Vega Precision Laboratories, Inc. v. Jwayyed

• Decision Date: 21 April 1978
• Docket Number: No. 770817,770817
• Citation: 218 Va. 1026,243 S.E.2d 228
• Parties: VEGA PRECISION LABORATORIES, INC., et al. v. Hamza JWAYYED. Record
• Court: Virginia Supreme Court

Page 228

243 S.E.2d 228

218 Va. 1026

VEGA PRECISION LABORATORIES, INC., et al. v. Hamza JWAYYED.

Record No. 770817.

Supreme Court of Virginia.

April 21, 1978.

Joseph P. Dyer, Arlington (Siciliano, Ellis, Sheridan & Dyer, Arlington, on brief), for appellants.

Lawrence J. Pascal, Alexandria, for appellee.

Before I'ANSON, C. J., and CARRICO, HARRISON, COCHRAN, HARMAN and COMPTON, JJ.

COCHRAN, Justice.

Hamza Jwayyed, an accountant employed by Vega Precision Laboratories, Inc. (Vega), was injured in the course of his employment on April 4, 1975, when several accounting binders which he was lifting from a shelf fell and struck him in the right shoulder, resulting in a cervical sprain and low back sprain. Jwayyed continued to work intermittently without loss of wages until he was discharged, effective June 6, 1975. Pursuant to a memorandum of agreement and an award of the Industrial Commission, dated July 21, 1975, he was paid $91 per week for total incapacity until November 7, 1976, when Vega filed an application to terminate compensation on the ground that Jwayyed's condition had changed and he had recovered sufficiently to return to his regular employment.

At a hearing conducted by Deputy Commissioner Hiner, uncontradicted medical evidence was introduced showing that Jwayyed could return to work as a cost accountant to perform duties specified in a job description dated October, 1976, ¹ supplied by Vega to the examining physician. Jwayyed testified, however, that the job description did not accurately reflect his duties, as he was employed to supervise the installation of a cost accounting system, and this work demanded greater physical exertion and heavier lifting on his part than did the work delineated in the job description. Vega's counsel, claiming surprise, asked permission to take the deposition of Jwayyed's employer to establish his duties as a cost accountant, but this motion was denied, Deputy Commissioner Hiner observing that he could not see, in view of Jwayyed's qualifications, "that he couldn't qualify as a cost accountant." Jwayyed had testified that he had B.A. and M.B.A. degrees in business, accounting, and finance. Deputy Commissioner Hiner subsequently ruled that Vega had failed to prove by a preponderance of the evidence that the claimant was able to return to his pre-injury work, and that the claimant's testimony as to the physical activity required of him in such work was unrebutted.

Vega filed a Petition to Reopen and Take Additional Testimony for the purpose of verifying the accuracy of the job description as applied to Jwayyed's duties. Attached to the Petition was an affidavit executed by the officer of Vega for whom Jwayyed had worked.

Upon review, the full Commission in its opinion filed May 16, 1977, made the following finding:

"On the basis of the record, we find that this employee could resume the duties of a cost accountant as outlined in a job description supplied to the physicians by the employer. However, this employee was terminated as of June 5, 1976 (sic) and employment as a cost accountant is not available to him. He continues to suffer residual disability which prevents him from obtaining employment which would require more strenuous duties than that of a cost accountant; therefore, he continues to suffer a total loss of wage."

The Petition to Reopen and Take Additional Testimony was denied, the opinion stating that evidence as to the work duties performed by Jwayyed for Vega "could not in any way affect his right to continue to receive compensation benefits under the Virginia Workmen's Compensation Law." The award of the Hearing Commissioner ordering the resumption of payments to Jwayyed was sustained.

On appeal, Vega argues that the Commission found as a fact that the employee was physically able to resume his pre-injury employment and that, contrary to the ruling of the Commission on the applicable law, Jwayyed is not entitled to continued compensation benefits for total loss of wages when his former job has been eliminated. Jwayyed maintains, however, that Vega has failed to prove that he is able to resume his pre-injury employment, that the medical evidence merely shows him able to perform selective work, that compensation benefits may be denied only if it is shown that Jwayyed is unwilling to perform such selective work, as provided in Code § 65.1-63, ² and that in the absence of such evidence and in view of Vega's failure to proffer such employment, he is entitled to full compensation under Code § 65.1-54. In summary, it is Jwayyed's position that he was employed as a cost manager with more strenuous duties than those of a cost accountant, that his work-related accident incapacitated him from performing that work, that he can now perform the less strenuous work of a cost accountant, but this selective employment has not been proffered to him by Vega, and he is therefore still entitled to full compensation.

It appears from his opinion that Deputy Commissioner Hiner agreed with Jwayyed, based upon Jwayyed's testimony, the medical evidence, and the employer's termination letter of June 5, 1975, addressed to the employee. The Deputy Commissioner was of opinion that the job description of October 5, 1976, supplied to the physicians, was "at best . . . an inadequate description of a job which could be construed as selective . . . ."

The opinion of the full Commission does not expressly approve or reject this view of the Deputy Commissioner, which is the pivotal issue in the case. The Commission found from the record that Jwayyed could resume the duties of a cost accountant as outlined in the job description of October 5, 1976. But the Commission did not find that this job description incorrectly stated the duties required of Jwayyed. Indeed, the Commission's stated reason for its denial of Vega's Petition to reopen the case to take additional evidence as to the work duties performed by Jwayyed strongly suggests that the Commission concluded that the job description furnished the physicians did in fact accurately describe Jwayyed's work requirements. Otherwise, we do not believe that the Commission would have stated that such evidence could not in any...