It is contended by the plaintiffs in error that this court overlooked that part of the award of Director Tucker wherein he found as a matter of fact "that Dr. Rozar operated upon the claimant, and on March 7 the claimant had received [recovered] from the injury and operation and was able to return to work." The plaintiff in error contends that this finding, the award not being appealed from, was an adjudication that the claimant had recovered from any injury which he had sustained by reason of the accident, and therefore that Director Monroe was concluded, in the award appealed from in this case, from finding that the subsequent disability of Clayton T. Johnson, and his death, were due to the accidental injury received on January 3, 1938, which aggravated the pre-existing tumor on his right testicle. This court did not overlook this finding of fact of Director Tucker, and did not fail to consider it in affirming the judgment of the superior court. This finding of fact was not conclusive that the injured employee could not suffer a change in condition, and could not thereafter become disabled and then die as a result of the accidental injury which had caused his pre-existing diseased condition to become aggravated. This finding was only an adjudication that at that time the employee had recovered, in so far as his right to compensation at that time was involved, from the injury which resulted from the blow to his right testicle. Neither, as this court has held, was the finding of Director Tucker that the employer and the insurance carrier were not liable for the x-ray treatment given to the employee "to prevent the recurrence of the malignant tumor," because such "treatment was not necessitated by the accident nor incurred within the first ten weeks following the accident," conclusive as an adjudication that the employee could not thereafter suffer a change in condition as a result of the accident, and become thereby disabled and thereafter die. The Industrial Board is vested with a discretion in the matter of the allowance of expenses incurred by the employee for medical treatment more than ten weeks after the accident, based upon whether such treatment may tend to lessen the period of disability or not. Code, § 114-501, as amended by Ga. *Page 423 L. 1937, p. 528; United States Fidelity Guaranty Co. v.O'Byrne, 61 Ga. App. 806 (7 S.E.2d 689).
The director found as a matter of fact that the employee had recovered from the original injury received as a result of the accident, and had recovered from the operation to remove his testicle. The director was therefore authorized to find that, more than ten weeks having elapsed since the accident, the x-ray treatment "was not necessitated by the accident but by the malignant growth suffered by the claimant prior to the accident." The director was authorized to find that this x-ray treatment was to prevent a recurrence of the malignant tumor, and not a recurrence of the aggravated condition of the malignant tumor caused by the blow received on the testicle of the employee. This is the extent of the conclusiveness of such finding of the director. It is not a conclusive finding that the blow received by the employee to his testicle, which caused it to swell rapidly, to become aggravated, and to have to be removed, could not have so injured the employee that the could apparently have recovered from the injury, and that the malignant cells, loosened from the diseased testicle by the blow, would thereby be disseminated throughout his blood stream and become lodged in some part of his body, and that this condition would be latent and would not be apparent until another malignant cancerous condition would appear, as the director found did occur in this case. Code § 114-709, providing for a hearing and an award by the Industrial Board upon a change in condition, was enacted for just such a situation as has occurred in this case. The finding of Director Tucker that the employer and insurance carrier were not liable for the x-ray treatment afforded to the employee after he had apparently recovered from the injury received by him, which treatment was rendered more than ten weeks after the accident, is not res judicata and a bar to a proceeding under the Code, § 114-709, and an award thereunder. This court does not agree to the contention of counsel for the insurance carrier and the employer, that "if the insurance company was not liable [as found by Director Tucker] for the medical treatment to prevent the disease from spreading, then we fail to see how it could be held liable for the results produced by the spreading of the disease." This is not an entirely accurate statement of the facts in this case. The company could nevertheless be liable if the so-called "spreading" of the disease *Page 424 was a flare-up of a pre-existing condition caused by the accident.
Rehearing denied. Sutton and Felton, JJ., concur.