Corning, Inc., et al. v Donald Ray Testerman

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

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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,

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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

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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.

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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

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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

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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
1In 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."

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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.

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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).

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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.,

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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

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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.