Opinion
November 16, 1961
Present — Bergan, P.J., Gibson, Herlihy, Reynolds and Taylor, JJ.
Appeal from a decision and award for 60% disability found due to a back condition caused by a 1954 accident. While a great deal of the medical evidence was either inconclusive or against the causal relationship found, there was substantial evidence of such causation in the testimony of the orthopedist who examined and treated claimant over a considerable period of time, upon diagnosis of intervertebral disc herniation; and there was substantial evidence, also, that claimant had recovered from the effects of the 1947 accident which appellants stress. The board's impartial specialist reported defects in the lumbar spine and, discussing certain of them, said that "herniated discs could explain these defects" and that, in regard to the time element, he could not "state definitely" whether his "findings" were "the result of the alleged accident of 1947 or 1954, as both alleged accidents could be a competent producing cause of the findings"; and, when testifying, said that either accident might have caused the disability or have aggravated the condition. Appellants assert that there was no rational basis for the finding of 60% disability but there was evidence of as much as total disability due to the 1954 accident; and under the circumstances shown the board did not exceed its powers in reaching an evaluation of the disability as somewhat less than that. The evidence, including that which has been discussed, also warranted the board's denial of apportionment. Decision and award unanimously affirmed, with costs to the Workmen's Compensation Board.