
    42335.
    DANIEL v. EMPLOYERS MUTUAL LIABILITY INSURANCE COMPANY et al.
    Argued October 5, 1966
    Decided October 13, 1966
    Rehearing denied November 2, 1966.
    
      Adair, Goldthwaite, Stanford, Daniel & Horn, T. Emory Daniel, for appellant.
    
      Swift, Currie, McGhee <fe Hiers, Glover McGhee, for appellees.
   Eberhardt, Judge.

An award in an application for hearing for determination as to whether the claimant had experienced a change of condition reciting that “the evidence does not show conclusively that his work incurred an aggravation of a preexisting condition and was the cause of claimant’s disability” is grounded upon an erroneous legal theory, and must be remanded to the board for a re-examination of the record and a new finding and award to be made in the light of the burden of the claimant to show his change of condition by a preponderance of the competent evidence.

Recital in the award of the full board, on an appeal from the deputy director’s findings and award, that “the majority of the full board is of the opinion that there is ample evidence to support the findings of the deputy director” does not alleviate the error, for the full board proceeded to make the findings of the deputy director its own and the award was made the award of the full board. The error was perpetuated.

Judgment reversed with direction that the matter he remanded for further action in accordance herewith.

Bell, P. J., and Jordan, J., concur.

On Motion for Rehearing.

It is urged that the issue of whether the award was grounded upon an erroneous legal theory was raised for the first time in this court. The appeal from the award of the full board to the superior court was “upon the ground that said award is contrary to law in being based upon an erroneous conclusion of law.” Thus, the issue was before the superior court and of necessity was involved in its judgment affirming the award.

Motion denied.  