holding that a suspension-of benefits under section 772 was permissible upon showing that claimant’s employment was terminated for reasons unrelated to his work injury
How later courts described this case
- holding that a suspension-of benefits under section 772 was permissible upon showing that claimant’s employment was terminated for reasons unrelated to his work injury
- claimant was discharged for nonperformance, bad-attitude, and problems with expenses, and not as a result of physical complaints or inability to physically perform his work
- discharge for non-performance, bad attitude, and problems with expenses rather than claimant’s physical complaints or inability to perform his work
- petition for reinstatement denied where claimant was discharged for non-performance, bad attitude and problems with expenses
Written by the judges who cited it.
The opinion
Concurring Opinion by
Judge Barry:
I concur in the result of the majority opinion in this case.
At page 566 supra of its opinion the majority states, “Substantial evidence of record demonstrates that any recurrence of loss of earnings suffered by Claimant re- *567 suits from non-work-related factors, i.e., unsatisfactory efforts and performance at his new position, and not from a work-related disability. Because Claimant’s poor job performance triggered his loss of earnings, Employer need not prove continued available work. ”
Although I view this as a departure from our previous case law concerning a claimant’s burden with respect to a petition to lift a suspension, it is not an unwelcome change. I find support for the majority’s statement of the law in Section 413(a) of The Pennsylvania Workmen’s Compensation Act 1 which provides in pertinent part, “And provided further, that where compensation has been suspended because the employe’s earnings are equal to or in excess of his wages prior to the injury that payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to injury. ”
The purpose for my concurrence is only to suggest that many unanswered questions remain which can and should be answered only through future litigation. Some of those questions surround issues such as: Whether and at what point the burden of proof shifts from the claimant to the employer to show that a loss in earnings does not result from the disability due to injury? Whether a claimant’s unsuccessful attempt to lift a suspension will result in a termination of benefits? If not, under what circumstances will a claimant be able to again lift a suspension? These questions cannot be answered within the context of this case inasmuch as they were neither raised nor briefed.
Accordingly, I concur in the result of the majority opinion and concur in the direction of the law as set forth *568 in that opinion but must point out that many questions remain unanswered by the opinion and it would be foolhardy to assume that any of them have.
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §772.