Claimant suffered six dislocations of his right shoulder between October 19, 1953, when it was dislocated playing football, and August 31, 1955, when it was dislocated while he was sitting in a chair stretching his arm. On September 21, 1955 an operation was performed to stabilize the arm.
One of the six dislocations was sustained while claimant was working on November 8,1954, when in dismounting from a crane he lost his balance and grabbed hold of a portion of the crane. Ali other five dislocations weré nonindustrial, including two which occurred after the incident of November 8, 1954.
The Workmen’s Compensation Board has found that “ As a result ” of the accident of November 8, 1954 “ and the five nonindustrial accidents ” claimant “ had to undergo surgical repair ” with consequent temporary disability. The board’s decision was to charge one sixth of the surgical disability and one sixth of medical expenses to the employer and carrier. The claimant appeals.
The ultimate test of industrial responsibility is to pay compensation awarded for disability “ arising out of and in the course of the employment ” (Workmen’s Compensation Law, § 10). Although there are many cases where a finding has been made that the industrial accident added to an existing physical infirmity is to be charged with the full consequences (e.g. Matter of Schwab v. Emporium Forestry Co., 167 App. Div. 614, affd. 216 N. Y. 712), decision will often depend on the actual part which the industrial injury plays in the result under consideration.
The Schwab case involved a lost hand claim where the claimant had already lost a hand, and permanent total disability was awarded. That decision aroused some fear of general loss of employment of persons suffering existing physical disability and led to the enactment in 1915 (L. 1915, ch. 615) of an amendment to the statute (now embodied in Workmen’s Compensation Law, § 15, subd. 7) which provides that a person suffering from “ a previous disability ” injured in an industrial accident shall not receive compensation in excess of the compensation allowed for the industrial injury “ considered by itself ”.
Since only that portion of a physical result due to injury arising from employment is to be charged with an award; and since the board may not award compensation “in excess of” *633the results of industrial accident, if there is “ previous disability ” (§ 15, subd. 7), the power of the board to differentiate factors of causation where the record warrants differentiation and apportionment seems implicit in its general authority to decide facts.
The power to apportion differing physical causation upon a record which will warrant apportionment may be seen in cases where responsibility of two or more employers or carriers for successive injuries is in question. (Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146; Matter of Fichtner v. Bloomingdale Bros., 4 A D 2d 897, affd. 4 N Y 2d 914; Matter of Conklin v. Arden Farms Dairy Co., 2 A D 2d 910, affd. 3 N Y 2d 860.)
In Matter of Schurick v. Bayer Co. (272 N. Y. 217) it was held that the “ previous disability ” provision of subdivision 7 of section 15 did not require or allow the board to attribute only 50% of the results of a disability to an industrial accident under the facts of that case. The decision was based on the record there before the court; and it is not a holding that where there is an actual and clearly established separable causation, some of which is attributable to the industrial accident and some not attributable to it, the whole result must nevertheless invariably be charged to the industrial accident.
In Matter of Schurick the claimant had sustained a nonindustrial fracture of a bone of his arm. Five months later after this fracture had healed sufficiently for him to return to work, he suffered in an industrial accident a fracture at the same site and an additional fracture of another bone of the arm.
It was held both that the “ previous disability ” referred to in subdivision 7 must be of a kind “ substantially as certain and as capable of ascertainment ” as the disabilities described in subdivision 8 and that it was doubtful if any existing “ disability ” at all had been shown in that record at the time of the industrial accident in view of the healed condition of the earlier fracture which permitted the claimant to work; and that even if a disability had been assumed, the extent of its contribution to the later injury was deemed ‘‘ too speculative for practical purposes ” (p. 220).
This is not a holding that if the extent of contribution of a previous disability is ascertainable, and the disability itself is as certain and capable of ascertainment as the loss of a bodily member, that the statute would not require apportionment. Entirely aside from the statutory prohibition of subdivision 7 of section 15 against attribution of compensation “ in excess ” of the *634result of the industrial accident, it is clear that the general policy of the law does not require or permit the industrial accident to be charged more than its contribution to the resulting physical injury if that causation is factually separable in the record and found by the board to be separable.
The statute does not demonstrate a public policy to charge more to industry in the way of resulting disability than may be found fairly to have been due to industrial accident. For example, where the physical results of an industrial accident contributed to a later accident, but “ only remotely ” and not “ primarily ” the results of the later accident were held not to have arisen out of the employment. (Matter of Sullivan v. B & A Constr., 307 N. Y. 161, 164.)
The problem in the case before us is, therefore, whether there is a substantial record on which the definite one-sixth part of the ultimate surgery of claimant’s shoulder may be attributed and apportioned to the industrial accident of November 8, 1954. We find there is substantial evidence in the record which sustains the apportionment.
The surgeon who operated on the claimant to stabilize the shoulder testified that in his opinion the original dislocation playing football in October, 1953 was the “ basic ” cause of the need for surgery. This football dislocation was, he testified, the ‘ ‘ primary disturbance of the normal position of these tissues which started them on their trend of recurrences afterward.” The condition for which claimant was operated was a “ recurrent dislocating shoulder ”. It is “a definite entity which we see frequently ’’.
The accident of November 8 “ constituted a proportional aggravation of any subsequent condition in that shoulder.” The condition seen and corrected surgically “ was probably the result of the summation of these various dislocations.” Although elsewhere in his testimony the surgeon refused to be pinned down to exact percentages, the board had enough before it to make a ‘ ‘ proportional ’ ’ allocation. It was the fact claimant “ had so many dislocations” that was, according to his surgeon, the main indication for surgery ‘ ‘ rather than that one became a bad and extremely aggravating factor ’ ’.
There is thus substantial evidence to support the factual finding of the board both that the nonindustrial accidents and the industrial accident, all altogether, led to the need for surgery, and that the industrial accident ‘ ‘ contributed proportionally (one-sixth) to ” that need.
The decision and award should be affirmed, without costs.