I vote to affirm the finding of the board that this is a compensable claim and the only issue is the finding by the board “ that it [employer] should be held only l/6th liable for all medical expenses and disability ”,
The facts are set forth in the majority opinion.
The cases are abundant of apportionment among carriers as the result of industrial accidents and of liability peculiar to special statutes. Such is not the situation here where the employer accepted claimant as he found him. Here claimant had a history of prior shoulder injury known to the employer but not associated with any industrial accident and, therefore, not compensable under the Workmen’s Compensation Act. He worked for the employer from July, without incident, until November, 1954 when the nature of the accident caused the dislocation. On January 21, 1955, he left the employment of the employer through no fault of his own.
To carry out the theory of the board in this case would change the spirit and intent of the Compensation Law. Section 10 provides in part “ Every employer * * * shall * * * secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of the employment ’
In Matter of Schurick v. Bayer (272 N. Y. 217) decided in 1936, the claimant, while in the employment of the employer, suffered a nonemployment accident in the nature of a fracture of the arm. After recovering from the injury he was certified to return to his work and about two months thereafter in the course of his employment he broke the arm at the site of the old fracture and an additional fracture. He was allowed full compensation as against the employer but thereafter the board found that the fracture in May was due “ as a consequence of the first injury ” and modified the award by charging one half against the employer. This court sustained the finding under subdivision 7 of section 15 of the Workmen’s Compensation Law but the Court of Appeals found that such a proviso was not applicable, that the situation was governed by section 10 and reinstated the original award for full compensation.
Matter of Schwab v. Emporium Forestry Co. (167 App. Div. 614, affd. 216 N. Y. 712), cited in the majority opinion, is not applicable it having been decided in accordance with subdivision 1 of section 15, except that the claimant was allowed full compensation without knowing the cause of the original injury. Likewise Matter of Sullivan v. B & A Construction Co. (307 N. Y. 161) is not applicable to the facts herein.
*636These cases substantiate the viewpoint that there is no statutory authority for the procedure herein and facts must be sustained either by statute or judicial decision of which there is none.
A later case, Matter of Mastrodonato v. Pfaudler Co. (307 N. Y. 592) while dealing primarily with the interpretation of section 15, was governed by the basic fact that the claimant had received a war injury, thereafter a compensable injury, and was paid full disability without any apportionment.
To sustain the ruling of the board in this case would be in conflict with the general principle enunciated in the heart cases.
In Matter of Masse v. Robinson Co. (301 N. Y. 34) at page 37 the court said: “A heart injury such as coronary occlusion or thrombosis when brought on by overexertion or strain in the course of daily work is compensable, though a pre-existing pathology may have been a contributing factor ”.
Matter of Meszaros v. Goldman (307 N. Y. 296) involved the statutory construction of subdivisions 5 and 6 of section 15 of the Workmen’s Compensation Law, but part of the dissenting opinion of Van Voobhis, J., sustained the contention of the appellant here. At page 303 Judge Van Voobhis said: “ The mere circumstance that the accident which is the precipitating cause of claimant’s temporary partial disability would not have had this effect unless claimant had previously had a weak back, is not regarded by the courts as- a ground on which to defeat or reduce the amount awarded against an employer ”.
This court said in Matter of Miller v. Workmen’s Compensation Bd. (284 App. Div. 1071, 1072): “ The fact that the work would probably not have caused a disability were it not for the original noncompensable injury is not a bar to an award for the full consequences. The employer takes the employee as he finds him, and, if a pre-existing condition renders the subsequent disability greater, an award for the full disability may be sustained.”
While the record in this case is not particularly convincing as to medical proof, the board having made a finding that “ The injuries sustained by Leonard J. Engle on November 8, 1954, were accidental injuries and arose out of and in the course of his employment ” was in error in thereafter restricting the amount of the award to one sixth.
In the most favorable circumstances, the carrier would be liable to at least. 25% of the total award. Following the industrial accident, the doctor for the claimant advised surgical repair but the insurance carrier requested conservative treatment. If *637the recommendation of the doctor had been followed, the likelihood of the two subsequent dislocations would have been remote and the claimant should not be penalized under these circumstances to the benefit of the carrier.
The award as to apportionment was sheer speculation. The decision of the board should be reversed and new findings made not inconsistent with the views expressed herein.
Foster, P. J., Bergan and Gibson, JJ., concur in Per Curiam opinion; Herlihy, J., dissents in a memorandum, in which Reynolds, J., concurs.
Decision and award affirmed, without costs.