
    In the Matter of the Claim of Stanley Kopec, Respondent, against Buffalo Brake Beam-Acme Steel & Malleable Iron Works, Appellant. Workmen’s Compensation Board, Respondent.
   Appeal by a self-insured employer from a decision of the Workmen’s Compensation Board awarding compensation to claimant for total disability as a result of an accidental injury which activated a quiescent tuberculosis. During numerous hearings this claim was treated by all concerned, including claimant’s attorney, as a claim for disability due to silicosis under section 66 of article 4-A of the Workmen’s Compensation Law, which was in effect when this claim arose. An award was made by the board under article 4-A and an appeal therefrom was taken to this court. Thereafter, in a supplemental memoranda of decision and amended findings, the board determined that accidental injuries sustained by claimant on February 12, 1943, superimposed upon a quiescent tuberculosis activated such tubercular condition and caused permanent disability. The record does not sustain such a determination. Expert consultants designated by the board expressly found: “ There is no evidence to associate his disability or aggravation of his silicosis or infection as a result of alleged injury 2/12/43.” We find no substantial evidence that claimant’s disability is due to a tubercular condition which was activated by the accident of February 12, 1943. Decision reversed on the law, with costs to the appellant against the Workmen’s Compensation Board. Deyo, Bergan and Coon, JJ., concur; Foster, P. J., dissents in the following memorandum, in which Heffernan, J., concurs: Despite some inconsistencies in the record I think there is residuum of proof as to two things, viz.: that claimant was totally disabled, and that the accident was a producing or aggravating cause of tuberculosis superimposed upon silicosis. Hence, I dissent and vote to affirm.  