Opinion
November 13, 1959
Present — Foster, P.J., Bergan, Coon, Gibson and Reynolds, JJ.
Appeal by employer and its insurance carrier from a decision and award of the Workmen's Compensation Board for disability due to tuberculosis of the spine found by the board to have resulted from accidental back injuries sustained on January 26, 1951 and on September 26, 1951 which aggravated a dormant tubercular condition. Dr. Nauen and Dr. Ullman testified to the causation which the board found. Appellants assert, first, that there was no substantial evidence of the pre-existing condition but Dr. Nauen stated his opinion, with a detailed statement of his reasons, as to the existence of the tubercle bacilli in the spine in a dormant state until activated by the trauma of the accidental injuries. Appellants urge, secondly, that claimant's proof of causation must be deemed unsubstantial because X rays of the spine taken March 22, 1951 and October 30, 1951 failed to disclose the tubercular condition activated by the injuries. Dr. Nauen said it was "unusual" that the October X ray did not reveal the condition but reiterated his opinion as to causation. Dr. Ullman said that the fact that the October X rays were negative was not of any great significance and that he would not expect X-ray evidence within the period of approximately 30 days that elapsed between the second injury and the taking of the X rays. Appellants' medical experts testified against causation but the conflict of medical testimony was, of course, for the board's determination and we are not able to say that its decision was unsupported by substantial evidence. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.