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IMPERIAL FOOD PRODUCTS v. MIMO TOMARELLI AND WORKMEN'S COMPENSATION APPEAL BOARD. IMPERIAL FOOD PRODUCTS (01/11/77)

decided: January 11, 1977.

IMPERIAL FOOD PRODUCTS
v.
MIMO TOMARELLI AND THE WORKMEN'S COMPENSATION APPEAL BOARD. IMPERIAL FOOD PRODUCTS, APPELLANT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Mimo Tomarelli v. Imperial Food Products, No. A-69896.

COUNSEL

Joseph A. Murphy, with him John R. Lenahan, and Lenahan, Dempsey & Murphy, for appellant.

Ralph J. Iori, Jr., with him James N. Diefenderfer, for appellees.

Judges Mencer, Rogers and Blatt, sitting as a panel of three. Opinion by Judge Blatt.

Author: Blatt

[ 28 Pa. Commw. Page 151]

On July 30, 1974, Mimo Tomarelli (claimant) filed a workmen's compensation claim petition under Section 108(n) of The Pennsylvania Workmen's Compensation Act*fn1 (Act), 77 P.S. ยง 27.1(n), which provides, inter alia, as follows:

The term 'occupational disease' as used in this act, shall mean only the following diseases.

[ 28 Pa. Commw. Page 152]

(n) All other diseases (1) to which the claimant is exposed by reason of his employment, and (2) which are causally related to the industry or occupation, and (3) the incidence of which is substantially greater in that industry or occupation than in the general population.

The claimant alleged that he had suffered total disability as a result of pulmonary fibrosis and emphysema which were, in him, the result of exposure to flour dust during 49 years of employment in the baking industry.

The referee found that the claimant was so disabled for the reason alleged and awarded the benefits claimed against Imperial Food Products (appellant). The Workmen's Compensation Appeal Board (Board) affirmed the award and this appeal followed.

Our scope of review here, where the Board did not take additional evidence, is limited to a determination of whether or not constitutional rights were violated, an error of law was committed, or a necessary finding of fact was not supported by substantial evidence. Universal Cyclops Steel Corp. v. Krawczynski, 9 Pa. Commonwealth Ct. 176, 305 A.2d 757 (1973).

The appellant has raised four issues in this appeal, the first being that the claimant's exposure to flour dust had rendered him totally disabled in 1967 and that a claim petition filed in 1974, therefore, was barred by the Act.*fn2 The referee found, however, that the claimant became "totally disabled on November 26, ...


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