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FRANK R. HENRY v. COMMONWEALTH PENNSYLVANIA (06/22/78)

decided: June 22, 1978.

FRANK R. HENRY, APPELLANT
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD AND CONTROL PRODUCTS CO., INC., APPELLEES



Appeal from the Court of Common Pleas of Allegheny County in case of Frank R. Henry v. Control Products Company, Inc. and Commonwealth of Pennsylvania, No. S.A. 967 of 1967.

COUNSEL

Alexander J. Pentecost, for appellant.

Paul D. Kruper, for appellee, Control Products Co., Inc.

William C. O'Toole, Assistant Attorney General, for appellee, Commonwealth of Pennsylvania.

Judges Crumlish, Jr., Rogers and DiSalle, sitting as a panel of three. Opinion by Judge Crumlish, Jr.

Author: Crumlish

[ 36 Pa. Commw. Page 263]

Claimant/Appellant, Frank R. Henry, filed a claim petition under Section 108(n) of The Pennsylvania Occupational Disease Act (Act), 77 P.S. § 1208(n),*fn1 alleging that his disability resulting in bronchial asthma

[ 36 Pa. Commw. Page 264]

    was due to exposure to fiberglass at his Employer's plant.*fn2 The referee awarded compensation benefits which were assessed against Employer and the Commonwealth of Pennsylvania (Appellees) on a 40/60 basis. On appeal, the Workmen's Compensation Appeal Board (Board) reversed the referee's decision and found that Claimant failed to prove that he was disabled due to an occupational disease and concluded that Claimant did not prove that his bronchial asthma which exists in the general public is peculiar to his work with fiberglass. Claimant appealed to the Court of Common Pleas which sustained the Board's decision and he now comes to us.

Claimant argues that he has met his burden under Section 108(n) of the Act and that the Board and the court below disregarded competent evidence. He relies on the testimony of Doctor Robert R. Speer, O.D.,*fn3 who testified that Claimant's condition was due to fiberglass irritation and that asthmatic bronchitis caused by exposure to fiberglass is peculiar to an industry or plant, such as Employer's, which uses fiberglass in its manufacturing process.

Appellees urge that the Board's findings are amply supported by the evidence and that there was no abuse of discretion. They rebut the testimony of Dr. Speer

[ 36 Pa. Commw. Page 265]

    with the findings of Dr. John H. Scott, M.D., an internist, who reported to Employer's ...


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