The opinion
CONCURRING OPINION BY
Judge SIMPSON.
This workers’ compensation appeal involves a finding that Nancy Turner (Claimant) voluntarily removed herself from the workforce by retiring. I agree with the majority that the decisions by the compensation authorities should be vacated and remanded to the fact-finder for reconsideration in light of our Supreme Court’s recent clarification of the burdens of proof in City of Pittsburgh v. Workers’ Compensation Appeal Board (Robinson), - Pa. -, 67 A.3d 1194 (2013).
I write separately to specifically address, and reject, an argument made by Claimant. She argues that because she had no legal duty to look for work until she received a Notice of Ability to Return to Work (Notice) in 2007, her failure to look for work for several years after her receipt of disability retirement in 2003 cannot be considered by the fact-finder as a matter of law.
Claimant was injured in early 1994. From 1994 to mid-2003 she worked at a light duty job for her employer, the City of Pittsburgh (Employer). When the light-duty job was discontinued, she accepted a disability retirement. She did not look for other work from mid-2003 until after she received the Notice in 2007.
Because Claimant actually worked a light-duty job with Employer for nine years, she knew that she possessed residual earning capacity. Indeed, she acknowledged she was capable of performing some level of work, such as the light-duty work she previously performed for Employer. Reproduced Record (R.R.) at 37a-38a. *1233 Despite this knowledge, Claimant admitted that she had no intention of returning to work at the time she accepted her disability retirement, R.R. 61a, and that she did not look for work of any kind between her retirement in 2003 and receipt of the Notice in 2007. R.R. at 40a-41a. I believe these circumstances, which tend to establish Claimant’s state of mind for the years between 2003 and 2007, are relevant circumstances which may be considered by the fact-finder as part of the “totality of circumstances” analytical paradigm. Robinson, - Pa. at -, 67 A.3d at 1209 .
Claimant’s argument that she had no duty to look for work before receipt of the Notice could be a persuasive assertion. However, it should be part of the weight-of-evidence arguments made to the fact-finder, not a per se legal rule which artificially restricts the circumstances all fact-finders consider. The propriety of a weight-of-evidence approach is obvious here, where Claimant did not need a Notice to advise her she was able to work. The situation illustrates the need for a more flexible “totality of circumstances” analysis. Robinson, - Pa. at -, 67 A.3d at 1209 .
In sum, I would allow the fact-finder to weigh Claimant’s pre-Notice acts, intentions and omissions in deciding whether Claimant retired.