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HELEN PETYAK v. COMMONWEALTH PENNSYLVANIA (10/08/81)

decided: October 8, 1981.

HELEN PETYAK, WIDOW OF MICHAEL PETYAK, PETITIONER
v.
COMMONWEALTH OF PENNSYLVANIA, WORKMEN'S COMPENSATION APPEAL BOARD, BARNES AND TUCKER COMPANY AND COMMONWEALTH OF PENNSYLVANIA, RESPONDENTS



Appeal from the Order of the Workmen's Compensation Appeal Board in the case of Helen Petyak w/o Michael Petyak v. Barnes & Tucker Company and Commonwealth of Pennsylvania, No. A-78873.

COUNSEL

David J. Tulowitzki, with him Blair V. Pawlowski, for petitioner.

Robert G. Rose, Spence, Custer, Saylor, Wolfe & Rose, for respondent, Barnes and Tucker Company.

Judges Mencer, Craig and MacPhail, sitting as a panel of three. Opinion by Judge Mencer. Dissenting Opinion by Judge Craig.

Author: Mencer

[ 62 Pa. Commw. Page 160]

The petitioner, Helen Petyak, widow of Michael Petyak, filed a fatal claim petition for dependent's compensation under The Pennsylvania Workmen's Compensation Act*fn1 against the Barnes and Tucker Company (employer) and the Commonwealth of Pennsylvania (Commonwealth), alleging that the death of her husband was due to coal worker's pneumoconiosis. The petitioner testified before the referee and introduced into evidence the deposition of Dr. Joseph E. Pirog, who had performed a thoracic autopsy on the decedent. Neither the employer nor the Commonwealth introduced evidence.

The referee denied the petitioner's claim, concluding that she failed to prove by competent, credible, and substantial evidence that the cause of the decedent's death was coal worker's pneumoconiosis. The Workmen's Compensation Appeal Board affirmed the

[ 62 Pa. Commw. Page 161]

    determination of the referee, and this appeal followed. The petitioner here contends that the referee capriciously disregarded the testimony of Dr. Pirog concerning her husband's cause of death. We reject that contention.

Dr. Pirog testified before the referee that, in his opinion, the decedent's death was caused by coal worker's pneumoconiosis. He stated on direct examination, however, that this opinion was based upon a partial autopsy limited to the chest cavity. He acknowledged that the limited scope of the autopsy prevented him from excluding other causes of death -- specifically, acute myocardial infarction or a cerebral vascular accident. He also admitted that the reasonable medical certainty of his opinion was lessened, if not negated, by the lack of a complete autopsy.

It is for the referee to determine the credibility of the evidence, to resolve any inconsistencies or equivocations in the testimony, and to assess its weight. Nardone v. Workmen's Compensation Appeal Board, 48 Pa. Commonwealth Ct. 360, 409 A.2d 945 (1980). He may reject the testimony of any witness in whole or in part. Bowes v. Inter-Community Action, Inc., 49 Pa. Commonwealth Ct. 612, 411 A.2d 1279 (1980). If the referee determines that testimony lacks credibility, he may disregard it, even though it is uncontradicted. Minadeo v. Workmen's Compensation Appeal Board, 43 Pa. Commonwealth Ct. 412, 402 A.2d 712 (1979). If the testimony of an expert witness is properly rejected by the referee, he may decline to make an award, even though the employer has offered no evidence. Peron v. Phoenix Park Coal Co., 202 Pa. Superior Ct. 495, 198 A.2d 370 (1964).

Since the testimony of the claimant's medical expert was based upon incomplete autopsy results and was manifestly inconsistent and equivocal, we cannot say that the ...


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