                     COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Fitzpatrick and Annunziata
Argued at Salem, Virginia

CORNING, INC. AND
 LUMBERMEN'S MUTUAL CASUALTY CO.
                                                 OPINION BY
v.        Record No. 0076-97-3         JUDGE JOHANNA L. FITZPATRICK
                                               AUGUST 5, 1997
DONALD RAY TESTERMAN

          FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             James A. L. Daniel (Martha White Medley;
             Daniel, Vaughan, Medley & Smitherman, P.C.,
             on briefs), for appellants.
             James B. Feinman (James B. Feinman &
             Associates, on brief), for appellee.



        Corning, Inc. and Lumbermen's Mutual Casualty Co.

(collectively referred to as employer) appeal the decision of the

commission awarding Donald R. Testerman (claimant) temporary

total disability benefits for the period commencing August 22,

1995 and continuing through October 17, 1995.       Employer contends

that the commission erred in finding claimant's injury to be

causally connected to his employment and in failing to consider

evidence presented by an expert witness to which no objection was

raised.    For the reasons that follow, we affirm the decision of

the commission.

                                  I.

        Claimant, who had been employed by Corning since 1989,

injured his back on the job on August 2, 1995.      Prior to this

accident, claimant had experienced other difficulties with his

back.    He had been injured while playing professional football
before coming to Corning.   Claimant acknowledged that he had

earlier been told that he had a degenerative back condition; that

he might need a fusion operation; and that as recently as April

1995, he had been treated for back problems.   However, before his

August 2, 1995 injury, claimant missed no time from work due to

any back problems.

     The record reflects that on August 2, 1995, claimant

suffered a work-related injury to his back.    Claimant described

his injury as follows:
          On August 2, 1995 around 9:30 a.m., while I
          was in the mid-plant at Corning, I was
          cleaning, dusting, and moping [sic] the area
          . . . . I was dusting off and cleaning up
          around and over and under pipes in the plant.
           I bent down and stretched over some pipes
          and went to stand up and I felt a definite
          pull in my back and a popping sound like when
          you pop your knuckles.


(Emphasis added).    A co-worker took claimant to PrimeCare for

treatment.   At PrimeCare, claimant was diagnosed with a back

strain.   The PrimeCare records indicate that the incident was

work related and that claimant could return to light work pending

his appointment with Dr. Joel M. Singer (Dr. Singer), a

neurosurgeon, scheduled for August 8, 1995.    Claimant had seen

Dr. Singer earlier regarding back problems.

     On August 8, 1995, Dr. Singer referred claimant to Dr.

Lawrence F. Cohen for a second opinion and "for evaluation of his

severe lower back pain and bilateral leg pain."   Dr. Cohen

examined claimant.   Dr. Cohen's office notes dated August 21,



                                 -2-
1995 reflect that "most likely that pulling injury exacerbated a

pre-existing condition."   Dr. Cohen sent a letter dated March 25,

1996 to claimant's counsel regarding claimant's injury.           In it he

stated that "[i]t is my opinion [claimant] had a pre-existing

condition, isthmic spondylolisthesis on L-4, -5, which was

materially aggravated by the incident described above.

Accordingly, his treatment and disability thereafter were a

result of the material aggravation of this pre-existing
condition."   (Emphasis added).

     On March 26, 1996, employer's counsel sent Dr. Cohen a

letter that included several paragraphs detailing the history of

Dr. Cohen's treatment of claimant.          The letter requested Dr.

Cohen to sign the statement if he agreed that it accurately

described the history and treatment rendered.            The letter

contained a signature line for Dr. Cohen to sign and a date line.

This letter included the following paragraphs:
              6. Mr. Testerman has a pre-existing
         problem in his spinal column which has caused
         him back pain and discomfort off and on for a
         number of years. That spinal column
         condition was not caused by any incident
         which may have occurred in August, 1995.

                *     *    *      *         *   *    *

               9. In your letter of March 25, 1996 to
          Mr. Feinman, you used the phrase "materially
          aggravated by the incident described above".
           That phrase was one which Mr. Feinman
          requested that you put in your March 25, 1996
          letter and is not a phrase that is contained
          in your office notes or records dealing with
          Mr. Testerman.

                10.   Any of the three incidents or


                                      -3-
           exacerbations which Mr. Testerman had
           experienced in the month prior to your seeing
           him on August 8, 1995 could have been the
           cause of the back pain which Mr. Testerman
           related to you when you saw him on August 8,
           1995.


     Dr. Cohen signed and returned this letter to employer's

counsel.   Both the March 25, 1996 and March 26, 1996 letters were

made part of the record with no objection from either party.

Neither party raised any issue as to the authenticity of the

March 26, 1996 letter.
     By opinion dated June 14, 1996, the deputy commissioner

found as follows:
          Based on the claimant's testimony and medical
          records, in particular the contemporaneous
          medical records of Dr. Cohen, we are of the
          opinion that though an incident may have
          occurred on August 2, 1995, [claimant's]
          subsequent treatment and disability were not
          related to the August 2, 1995 incident. We
          base our opinion primarily on Dr. Cohen's
          agreement to the eleven statements outlined
          in the March 26, 1996 letter from employer's
          counsel to Dr. Cohen.

(Emphasis added).   The deputy commissioner concluded:

           [W]e are of the opinion that [claimant] has
           not proven by a preponderance of the evidence
           a compensable injury arising out of and in
           the course of his employment on August 2,
           1995, resulting in partial disability from
           August 22, 1995 through October 17, 1995 and
           resulting in medical treatment at Piedmont
           PrimeCare, Dr. Singer, Dr. Cohen and Dr.
           Bailes. The Claim for Benefits is, therefore,
           DENIED.


     The full commission reversed the deputy commissioner and

awarded claimant temporary total disability and medical benefits.



                                -4-
The commission found that "claimant's preexisting back condition

[was] well-documented."   The commission determined that

claimant's condition existed at the time of his hire; that

claimant had been treated for his condition on numerous

occasions; and that it had not resulted in any work disability

prior to the August 2, 1995 injury.   The commission explained

that "[t]his evidence is noted in light of the well-established

rule that the employer takes the employee as he finds him with

all of his predisposing weaknesses and infirmities."
     Additionally, the commission compared the March 25, 1996

letter from Dr. Cohen to the letter dated March 26, 1996 from

employer's counsel to Dr. Cohen.   The commission made the

following conclusions regarding the signature on the March 26,

1996 letter:
          There is a mark on the [signature] line, []
          no letter of the alphabet can be identified
          in this mark. Clearly, this handwriting is
          different from Dr. Cohen's legible signature
          on the correspondence from his office dated
          March 25, 1996. We cannot determine from the
          record what the mark on the letter of March
          26, 1996, is, nor who affixed it. Therefore,
          we place no probative value on this report,
          contrary to the Deputy Commissioner.


(Emphasis added).   Accordingly, the commission concluded that

"the claimant's evidence sufficiently establishes that his

preexisting condition was aggravated by an injury by accident

arising out of and in the course of his employment on August 2,

1995."

     In response to the commission's findings, employer filed a



                                -5-
petition to reopen and a motion to reconsider the commission's

decision.   In support of this motion, employer submitted an

affidavit signed by Dr. Cohen which stated, "I definitely signed

the letter on Mr. Daniel's letterhead dated March 26, 1996, the

signature on that letter is definitely mine, and I signed the

letter because the 11 numbered paragraphs set forth my opinions

concerning [claimant] and the statements contained in those

paragraphs were and are true."
     The commission denied employer's motion to reconsider on

January 16, 1997 for the following reasons:
          We first note that there is nothing in the
          Opinion to even suggest that employer's
          counsel obtained or was a party to filing a
          forged signature. Rather, the Commission
          merely considered that the document might
          have been endorsed by someone else on Dr.
          Cohen's office or medical staff, which raised
          the question of authenticity, or at least
          indicated that the physician himself gave it
          little if any thought or consideration. We
          have considered Dr. Cohen's affidavit filed
          with your Motion and accept the
          representations included therein, which
          establishes that he personally reviewed and
          endorsed the report.

                 However, the evidence in this case still
            establishes the claim is compensable, even
            accepting the March 26, 1996 medical report
            at face value. . . .

                 The uncontradicted evidence established
            that the claimant worked for Corning, Inc.
            beginning August 14, 1989. Although he had
            several incidents related to his pre-existing
            back condition after that date, he did not
            miss time from work because of a back injury,
            until after the work accident in August 1995.
             This was certainly a material aggravation of
            his pre-existing condition, as Dr. Cohen



                                 -6-
             observed in his March 25, 1996 report. 1
             Moreover, on the facts of this case, we would
             find a material aggravation even independent
             of the medical evidence.

(Emphasis added).

                                  II.


        Employer argues that claimant failed to sustain his burden

of proving a compensable injury that was causally connected to

the employment environment.     Employer contends that the record

fails to establish that claimant's ongoing back problems were

caused by the August 2, 1995 incident rather than his previous
    1
     In a March 22, 1996 deposition, Dr. Singer responded to
questions asked by claimant's counsel as follows:

             Q. Dr. Singer, is it your opinion that Mr.
             Testerman had a preexisting disease or
             condition prior to August 2, 1995?

             A.   It is.

             Q. Is it your opinion that this preexisting
             condition or disease suffered a material
             acceleration or aggravation as a result of the
             injury that he described occurring on August
             2, 1995?

             MR DANIEL: Note my objection to the leading
             form of the question.

             A. By history he was back at work doing his
             job when he was moving, getting out from
             between pipes at work and felt a pop in his
             back and yes, I think the answer would have to
             be correct.

     On re-examination by employer, Dr. Singer stated that "I had
seen [claimant] on a number of occasions over the past -- since
April to August, and I do not know any of these other
exacerbations except for this one major one that he had at work."




                                  -7-
career as a football player.   We disagree.

     It is well established that the commission's determination

of causation is a factual finding that will not be disturbed on

appeal if supported by credible evidence.      See American Filtrona

Co. v. Hanford, 16 Va. App. 159, 165, 428 S.E.2d 511, 515 (1993)

(citing Ingersoll-Rand Co. v. Musick, 7 Va. App. 684, 688, 376

S.E.2d 814, 817 (1989)).

     "To be compensable, the claimant must prove an injury by

accident.   'In order to carry his burden of proving an "injury by

accident," a claimant must prove that the cause of his injury was

an identifiable incident or sudden precipitating event and that
it resulted in an obvious sudden mechanical or structural change

in the body.'"   Odgen Allied Aviation Servs. v. Shuck, 18 Va.

App. 756, 758, 446 S.E.2d 898, 899 (1994) (quoting Morris v.

Morris, 238 Va. 578, 589, 385 S.E.2d 858, 865 (1989)) (emphasis

added).   "A finding that a pre-existing condition was

'accelerated or aggravated' by an injury sustained in an

industrial accident establishes a causal connection between the

injury and disability and the 'disability resulting therefrom is

compensable under the Workers' Compensation Act.'"      Southern Iron

Works Inc. v. Wallace, 16 Va. App. 131, 134, 428 S.E.2d 32, 34

(1993) (quoting Olsten of Richmond v. Leftwich, 230 Va. 317, 320,

336 S.E.2d 893, 895 (1985)).

     Additionally, medical evidence is neither dispositive nor

required to establish causation.      See Dollar General Store v.




                                -8-
Cridlin, 22 Va. App. 171, 176, 468 S.E.2d 152, 154 (1996).

"'Medical evidence is not necessarily conclusive, but is subject

to the commission's consideration and weighing.'        The testimony

of a claimant may also be considered in determining causation,

especially where the medical testimony is inconclusive."        Id. at

176-77, 468 S.E.2d at 154 (quoting Hungerford Mechanical Corp. v.

Hobson, 11 Va. App. 675, 677, 401 S.E.2d 213, 215 (1991), and

citing Morris v. Badger Powhatan/Figgie Int'l, Inc., 3 Va. App.

276, 281, 348 S.E.2d 876, 878 (1986)). 2
        In the instant case, substantial evidence supports the

commission's decision that claimant suffered an identifiable

injury on August 2, 1995 and that a causal connection existed

between the injury and claimant's employment.     It is undisputed
    2
             To appraise the true degree of
                  indispensability which should be
                  accorded medical testimony, it is
                  first necessary to dispel the
                  misconception that valid awards can
                  stand only if accompanied by a
                  definite medical diagnosis. True,
                  in many instances it may be
                  impossible to form a judgment on
                  the relation of the employment to
                  the injury, or relation of the
                  injury to the disability, without
                  analyzing in medical terms what the
                  injury or disease is. But this is
                  not invariably so. In appropriate
                  circumstances, awards may be made
                  when medical evidence on these
                  matters is inconclusive,
                  indecisive, fragmentary,
                  inconsistent, or even nonexistent.

2B Arthur Larson, The Law of Workmen's Compensation § 79.51(a)
(1996).




                                  -9-
that claimant experienced ongoing back difficulties prior to his

August 2, 1995 injury; however, none of these difficulties

resulted in any disability or any time missed from work.       The

record clearly reflects that on August 2, 1995, while working in

an awkward position, claimant suffered a sudden "pull" and "pop"

in his back while he was performing work-related duties, and that

soon after the injury occurred, a co-worker took claimant to

PrimeCare for treatment.   Dr. Cohen stated on two different

occasions that claimant had a "pre-existing condition . . . which

was materially aggravated by the [August 2, 1995] incident" and

that this injury "exacerbated a pre-existing condition."       The

commission considered claimant's medical records but declined to

give the letter dated March 26, 1996 or Dr. Cohen's affidavit

significant weight in its determination of the causation of

claimant's injury.
     "In determining whether credible evidence exists, the

appellate court does not retry the facts, reweigh the

preponderance of the evidence, or make its own determination of

the credibility of the witnesses."     Wagner Enterprises, Inc. v.

Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991).        Thus,

the commission was free to attribute greater weight to claimant's

testimony and to Dr. Cohen's opinion as expressed in his notes

and in the March 25, 1996 letter.     The fact that contrary

evidence may appear in the record is of no consequence, as

credible evidence supports the commission's finding.     See, e.g.,




                               -10-
City of Norfolk v. Lillard, 15 Va. App. 424, 429-30, 424 S.E.2d

243, 246 (1992).

                               III.

     Employer next argues that the commission improperly refused

to consider Dr. Cohen's March 26, 1996 letter and his later

affidavit submitted by employer with its motion to reconsider.

While we find no basis in the record for the commission's concern

about the signature on the March 26, 1996 letter, the commission

did ultimately consider the information contained therein.     In

the commission's response to employer's motion to reconsider, it

specifically evaluated the earlier submitted March 26, 1996

letter and Dr. Cohen's affidavit. The commission stated:
          [T]he Commission merely considered that the
          document might have been endorsed by someone
          else on Dr. Cohen's office or medical staff,
          which raised the question of authenticity, or
          at least indicated that the physician himself
          gave it little if any thought or
          consideration. We have considered Dr.
          Cohen's affidavit filed with your Motion and
          accept the representations included therein,
          which establishes that he personally reviewed
          and endorsed the report.

(Emphasis added).   Contrary to employer's contention, the

commission neither disregarded nor refused to consider the

affidavit or the letter at issue.     Rather, the commission

considered both statements and concluded that, "[h]owever, the

evidence in this case still establishes the claim is compensable,

even accepting the March 26, 1996 medical report at face value."

(Emphasis added).   Accordingly, employer's argument is without



                               -11-
merit.

     However, we note that while it may not be error for the

commission to give little weight to a particular item of

evidence, it is inherently unfair to raise the issue of the

authenticity of a medical record at a time when the moving party

can take no action.   Here, neither party objected to the

admissibility of the March 26, 1996 letter.   The commission, of

its own accord, questioned the legitimacy of this letter and

"place[d] no probative value on this report."   Although upon

further review, the commission cured its initial error by

properly considering the evidence, we cannot say that such

treatment of accepted, unobjected to, evidence would not under

different circumstances, result in prejudice requiring reversal.
     For the reasons stated above, we affirm the decision of the

commission.

                                                        Affirmed.




                               -12-
