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COUNTY ALLEGHENY v. JOHN GALLO (02/29/80)

decided: February 29, 1980.

COUNTY OF ALLEGHENY, PETITIONER
v.
JOHN GALLO, RESPONDENT



Appeal from the Order of the Workmen's Compensation Appeal Board in case of John Gallo v. County of Allegheny, No. A-73979.

COUNSEL

Paul T. Grater, with him, R. L. McMillan and Louis A. Raimond, for petitioner.

Amiel B. Caramanna, Jr., with him, Alexander J. Pentecost, for respondent.

Judges Wilkinson, Jr., Mencer and Rogers, sitting as a panel of three. Opinion by Judge Mencer. President Judge Bowman and Judge DiSalle did not participate in the decision in this case.

Author: Mencer

[ 49 Pa. Commw. Page 507]

The narrow issue presented by this workmen's compensation appeal is whether a doctor's testimony that the incidence of chronic obstructive lung disease and interstitial fibrosis is greater in the automotive body repair industry than in the general population satisfies the third requirement of Section 108(n) of The Pennsylvania Workmen's Compensation Act (Act), Act of June 2, 1915, P.L. 736, as amended, added by Section 1 of the Act of October 17, 1972, P.L. 930, 77 P.S. ยง 27.1(n). We hold that it does not and therefore reverse the order of the Workmen's Compensation Appeal Board granting benefits to John Gallo (claimant).

To receive benefits for an occupational disease under the Act, "a claimant must show, inter alia, that he suffers from a disease as defined in Section 108 and that the disease arose out of and in the course

[ 49 Pa. Commw. Page 508]

    of his employment." Fruehauf Corp. v. Workmen's Compensation Appeal Board, 31 Pa. Commonwealth Ct. 341, 344, 376 A.2d 277, 279 (1977). Moreover, where a claimant's condition is not one of those occupational diseases specifically enumerated in Section 108 of the Act, claimant must meet the requirements of subsection (n) which provides:

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

(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. (Emphasis added.)

See Fruehauf, supra.

There is no question that claimant has met his burden with regard to the first two requirements of Section 108(n). In an attempt to comply with the third, however, claimant presented the following testimony of ...


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