                    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.
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




                                 -4-
§ 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 pre-

injury 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



                                -5-
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




                                 -6-
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.




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