Opinion
January 17, 1962
Present — Coon, J.P., Gibson, Herlihy, Reynolds and Taylor, JJ.
This is an appeal from a decision of the Workmen's Compensation Board which determined that a head injury sustained in a 1951 compensable accident contributed to the decedent's subsequent death from tuberculosis. In 1951, after the decedent sustained the head injury, he suffered from a post-traumatic psychosis and in November, 1951, was committed to a State hospital. Subsequently an X ray taken on November 13, 1951 determined he was suffering from tuberculosis and he remained in the hospital until the date of his death, August 18, 1955, the primary cause thereof being pulmonary tuberculosis. The medical expert, testifying on behalf of the claimant, stated: "The medical, or the immediate cause of tuberculosis is always the tubercle bacilli, or tubercle bacillus. I would say that such a trauma could be a secondary cause, or a cause of exacerbation or aggravation of a pre-existing lesion." The carrier's specialist testified that assuming a pre-existing tubercular condition, the accident would not have been a contributing factor to the death. The board referred the matter to an impartial medical specialist who, when testifying as to the pre-existence of tuberculosis, stated: "I have an opinion that it probably did [pre-exist the accident], but I have no proof of it." He was further asked if it were possible that the condition as shown in the X-ray picture might have been present before the accident occurred and to which he replied "May very well have been". In his report, the impartial specialist stated: " Regarding causal relationship, it may be assumed with all reasonable likelihood that the severe trauma sustained in the accident of 8-20-51 could possibly have influenced adversely his tuberculosis (which presumably existed prior to his accident) thereby aggravating and accelerating the disease, with ensuing death of far advanced cavitary tuberculosis four years later." Under such circumstances, we are of the opinion that there was a sufficient basis for the medical testimony and that it constituted substantial evidence of a pre-existing tubercular condition. (See Matter of Grennell v. Driveway Paving Co., 12 A.D.2d 697.) The carrier's principal argument on this appeal appears to be that the medical testimony was so speculative that it could not be considered substantial evidence. While the testimony did contain such words as "possibly", "probably" or "could", we are satisfied that the record as a whole is sufficient to establish that the tuberculosis pre-existed the date of accident and that the accident accelerated or aggravated his death from pulmonary tuberculosis. Decision unanimously affirmed, with costs to the Workmen's Compensation Board.