The opinion
ROBERT P. SMITH, Jr., Judge,
concurring in part and dissenting in part:
I concur in the court’s decision on the cross-appeal holding as a matter of law that retirement benefits which had not vested should not be included in computing the claimant’s average weekly wage. I disagree with the court’s decision that the claimant performed a sufficiently diligent work search to demonstrate his entitlement to disability benefits for a wage earning capacity loss exceeding his anatomical disability. I think the court reaches this factual conclusion by reevaluating the persuasiveness of claimant’s testimony and discounting evidence and legitimate inferences from evidence which led the deputy commissioner to a contrary finding that
. . . the claimant has failed to demonstrate any greater degree of disability from a diminution of wage earning capacity standpoint than the anatomical rating.
On this issue I would sustain the deputy.