referee substitution due to emergency created by workload increase
How later courts described this case
- referee substitution due to emergency created by workload increase
Written by the judges who cited it.
The opinion
PALLADINO, Judge,
dissenting
I respectfully dissent.
Where a claimant seeks reinstatement of suspended benefits, the claimant must prove that he continues to suffer from a work related injury and that the injury caused a loss of earnings. Andersen v. Workmen’s Compensation Appeal Board (National Forge Company), 113 Pa. Commonwealth Ct. 601 , 537 A.2d 971 (1988). Claimant argues that his loss of earnings was caused by his injury because his injury forced him to retire.
The majority concludes that “[n]o findings ... were made regarding Claimant’s ability to perform the light-duty job [made] available to Claimant by Employer”. 134 Pa.Commonwealth Ct. at 570, 579 A.2d at 1368. The majority holds that such a finding is crucial to our appellate review and remands the case for additional testimony and a finding on this issue.
I strenuously disagree. The referee did make sufficient findings of fact for appellate review. Claimant was required by Andersen to prove that his injury caused his loss of earnings by forcing him to retire. The referee found that, at the time Claimant retired, his job was within his prescribed medical limitations, he was performing the job, and his job was still available to him. As to Claimant’s decision to retire, the referee specifically found that he took voluntary retirement. Clearly, Claimant’s loss of earnings was caused by his voluntary retirement and not his injury. Consequently, he is not eligible for benefits. Dugan v. Workmen’s Compensation Appeal Board (Fuller Co.), 131 Pa. Commonwealth Ct. 218 , 569 A.2d 1038 (1990).
Accordingly, I would affirm. 1
. If the finding of fact in dispute had not been made, this court could only remand for the making of such a finding on the existing récord. Claimant had the burden and opportunity to present evidence as to the disputed issue. This court lacks authority to permit Claimant a *573 second opportunity to present evidence as to this issue. Elliot v. Workmen's Compensation Appeal Board (C.S. Engineers, Inc.), 72 Pa. Commonwealth Ct. 195 , 455 A.2d 1299 (1983).