COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Fitzpatrick 

Argued at Richmond, Virginia 

DANVILLE SCHOOL BOARD, ET AL. 

 MEMORANDUM OPINION* BY 

v. Record No. 2168-95-2 JUDGE LARRY G. ELDER 

 MARCH 26, 1996 

THELMA H. CHILTON 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 Gregory T. Casker (Daniel, Vaughan, Medley & 

Smitherman, P.C., on brief), for appellants. 

 Gary W. Kendall (Michie, Hamlett, Lowry, 

 Rasmussen & Tweel, P.C., on brief), for 

 appellee. 

 The Danville School Board (employer) appeals from the 

Workers' Compensation Commission's (commission) award of benefits 

to Thelma H. Chilton (claimant) for a change in condition related 

to a compensable injury by accident. Employer contends that 

(1) claimant's claim for temporary partial disability benefits 

was statutorily time-barred, and (2) claimant's evidence did not 

establish the requisite causal connection between her partial 

disability and her compensable injury. Disagreeing with 

employer, we affirm the commission's decision. 

 I. 

 FACTS 

 Claimant, who was employed by employer as a part time 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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cafeteria worker, sustained a compensable back injury on 

November 13, 1991, while lifting a twenty-five pound box. 

Employer accepted the injury as compensable, and awards were 

entered for various periods of temporary total disability. 

Claimant last received disability compensation on October 7, 

1992. 

 After suffering her back injury, claimant consulted numerous 

physicians in an attempt to treat her lower back pain. 

Orthopaedic surgeon Dr. Alton F. Gross first treated claimant in 

November of 1991 and diagnosed a lumbosacral strain. 

Neurosurgeon Dr. John A. Jane examined claimant beginning on 

September 2, 1992, concluded that "there is absolutely nothing 

wrong" with claimant, and released her to "full activity." 

 On November 15, 1993, Dr. H. C. Eschenroeder, Jr. examined 

claimant and advised her that she probably suffered from a 

residual soft tissue problem in her lower back. Dr. William J. 

Richardson examined claimant on February 7, 1994, noted 

degenerative disc disease at L4-5 and L5-S1 discs, but did not 

recommend surgery. Dr. Eschenroeder again examined claimant on 

May 2, 1994, and suggested claimant rely on a TENS unit and 

nonsteroids for pain relief. Dr. Eschenroeder concluded that 

claimant would continue to suffer from partial, chronic 

disability. In a letter dated October 31, 1994, Dr. Eschenroeder 

stated that he could not determine the etiology of claimant's 

symptoms "and would be inclined to defer to the physicians who 
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saw her at the time of her injury." 

 Unsatisfied with Dr. Eschenroeder's treatment, claimant 

sought an opinion from Dr. Steven M. Fiore, who noted claimant's 

workplace injury and her treatment course since that time. After 

a discogram performed on October 31, 1994 again showed 

degenerative process at L3-4, L4-5, and L5-S1 discs, Dr. Fiore 

recommended sedentary work and physical therapy. Dr. 

Eschenroeder, on July 7, 1994, and again on September 12, 1994, 

opined that claimant's back pain limited her to "sedentary work 

activities." 

 Claimant testified at the deputy commissioner's hearing that 

she suffered from back pain since the accident and both before 

and after her chiropractic treatment, and that the pain continued 

to the present day. 

 Claimant filed a change in condition claim on August 29, 

1994, seeking temporary total benefits and other appropriate 

benefits, and on December 9, 1994, seeking resumption of 

temporary partial disability benefits from September 1, 1994 and 

continuing, plus payment of bills related to Dr. Fiore's 

treatment. The deputy commissioner found that claimant timely 

filed her application but denied her claim because she did not 

causally relate her original injury to the 1994 disability. The 

full commission reversed and awarded benefits, concluding that 

claimant met her burden of causality. Employer now appeals to 

this Court. 
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 II. 

APPLICATION NOT TIME-BARRED 

 Code § 65.2-708 states that a review based upon a change in 

condition shall not "be made after twenty-four months from the 

last day for which compensation was paid, pursuant to an award 

under this title." In this case, both parties agree that 

claimant had until October 7, 1994 to file her application. On 

August 29, 1994, while on summer break from her job as a 

cafeteria worker, claimant filed with the commission an 

application seeking temporary total benefits and "such other 

benefits as may be appropriate." Claimant filed this application 

based upon her physician's opinion that she could perform only 

sedentary duties upon her return to work on September 1, 1994. 

On September 1, 1994, employer allowed claimant to return to work 

three days a week at a lower hourly wage, performing light 

duties. On December 6, 1994, claimant notified the commission 

that she returned to work on a limited basis and stated, "[t]o 

the extent that [I] have not already asserted a claim for 

temporary partial benefits, please accept this letter as a notice 

for such a claim." 

 As the commission correctly recognized, "[t]he submission of 

a standardized, uniform award review application, although 

preferable and more conducive to the orderly administration and 

disposition of [workers'] compensation claims, is not a 

prerequisite for compliance with Code § 65.1-99 [current Code 
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§ 65.2-708]." Reese v. Wampler Foods, Inc., 222 Va. 249, 255, 

278 S.E.2d 870, 873 (1981). 

 Under commission Rule 13, the application must state the 

"change in the condition relied upon." Central Virginia Training 

Ctr. v. Martin, 2 Va. App. 188, 192, 342 S.E.2d 652, 654 (1986). 

 Claimant's August 26, 1994 application letter informed the 

commission and employer that she was physically unable to return 

to her pre-injury job when school began on September 1, 1994. 

Claimant's application letter specifically stated (1) that her 

inability to do non-sedentary work was due to back pain from her 

original workplace injury, and (2) that Dr. Eschenroeder believed 

claimant could not continue to perform the duties of her preinjury job. Claimant's notice to employer was meant to give 

employer the option of reducing its potential compensation 

liability by finding claimant suitable sedentary work, thus 

entitling her to temporary partial benefits (i.e., "such other 

benefits as may be appropriate"). Employer also had the option 

of not offering claimant alternate work duties, thus entitling 

her to temporary total benefits. 

 Furthermore, we reject employer's contention that claimant 

should not have filed a claim for benefits until September 1, 

1994, the date she was scheduled to return to her job. At all 

times relevant to this case, including the school's summer break 

before September 1, 1994, claimant was employed by employer and 

was entitled to file a disability claim. To hold otherwise would 
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bar relief for those employees whose two year statute of 

limitations period expires during a summer break from school. 

 The Workers' Compensation Act "should be liberally construed 

in harmony with its humane purpose." Barnett v. D.L. Bromwell, 

Inc., 6 Va. App. 30, 34, 366 S.E.2d 271, 272 (1988)(en banc). In 

light of this principle and the facts of this case, we agree with 

the commission that although the December 6, 1994 letter was the 

first to specifically mention a claim for temporary partial 

disability benefits, this was a clarification and amendment of 

claimant's August 29, 1994 claim. Therefore, we hold that 

claimant timely filed her claim based on a change in condition. 

 III. 

CONDITION CAUSALLY RELATED TO ORIGINAL INJURY 

 On appeal, we view the evidence in the light most favorable 

to the prevailing party below. R.G. Moore Bldg. Corp. v. 

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

"General principles of [workers'] compensation law provide that 

in an application for review of any award on the ground of change 

in condition, the burden is on the party alleging such change to 

prove his allegations by a preponderance of the evidence." Great 

Atl. & Pac. Tea Co. v. Bateman, 4 Va. App. 459, 464, 359 S.E.2d 

98, 101 (1987). 

 We hold that claimant met her "burden of establishing by a 

preponderance of the evidence the existence of a disability which 

was the consequence of the injury by accident." Hungerford 
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Mechanical Corp. v. Hobson, 11 Va. App. 675, 678, 401 S.E.2d 213, 

215 (1991). Claimant demonstrated that her back pain began in 

1991, immediately after her workplace injury, and that her pain 

continued uninterrupted from that point. "The testimony of a 

claimant may [] be considered in determining causation, 

especially where the medical testimony is indefinite." Dollar 

General Store v. Cridlin, __ Va. App. __, __, __ S.E.2d __, __ 

(1996). 

 Furthermore, claimant's physicians related the onset of her 

back pain with her workplace injury, and their reports and 

records fully related claimant's account of her original injury. 

 An MRI of claimant's spine, conducted on November 22, 1991, only 

nine days after her injury, revealed mild bulging of the L4-5 and 

L5-S1 discs, with no herniation. This evidence, in part, 

provided the commission with credible evidence that claimant's 

injury caused the bulging and pain. While the physicians' 

reports may have lacked the desired specificity as to the 

etiology of claimant's pain, the commission may make awards even 

"when medical evidence on these matters is inconclusive, 

indecisive, fragmentary, inconsistent, or even nonexistent." Id.

 For these reasons, we affirm the commission's decision. 

Affirmed.