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EUGENE BERRY v. WORKMEN'S COMPENSATION APPEAL BOARD (GENERAL TIRE AND RUBBER COMPANY) (11/15/84)

decided: November 15, 1984.

EUGENE BERRY, PETITIONER
v.
WORKMEN'S COMPENSATION APPEAL BOARD (GENERAL TIRE AND RUBBER COMPANY), RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in case of Eugene Berry v. General Tire and Rubber Company, No. A-84867.

COUNSEL

Lee C. Swartz, Hepford, Swartz, Menaker & Morgan, for petitioner.

Dennis N. Persin, Stewart, Belden, Herrington & Belden, for respondents.

Judges Williams, Jr., MacPhail and Barbieri, sitting as a panel of three. Opinion by Judge Williams, Jr. Judge MacPhail dissents.

Author: Williams

[ 86 Pa. Commw. Page 96]

In this workmen's compensation appeal the question presented is whether a physician's testimony that granulomatous liver disease occurs "much more commonly" in the rubber industry than in the general population satisfies the statutory requirement that the disease incidence be "substantially greater in that industry or occupation than in the general population." Section 108(n)(3) of The Pennsylvania Workmen's Compensation Act (Act).*fn1

[ 86 Pa. Commw. Page 97]

For twenty-two years Eugene Berry (claimant) mixed large batches of chemicals necessary to the manufacture of rubber products by General Tire and Rubber Company. Mr. Berry ceased working for health reasons on June 27, 1977, and was later diagnosed as having granulomatous liver disease, which is a toxic liver condition. Claimant filed a claim petition for total disability benefits on June 21, 1979.

Because granulomatous liver disease is not one of the specifically enumerated occupational diseases under Section 108, claimant's proof must satisfy the three requirements of subsection (n) which state:

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 supplied.)

The referee awarded compensation upon finding, among other things, that granulomatous liver disease totally disabled the claimant on October 28, 1980, and that the disease incidence was substantially greater in claimant's rubber-manufacturing occupation than in the general populace. Without taking additional evidence the Workmen's Compensation Appeal Board (board) reversed because "[n]o evidence was presented to the effect that ...


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