# Christopher v. Workmen's Compensation Appeal Board

> Commonwealth Court of Pennsylvania · April 4, 1989 · 124 Pa. Commw. 562

URL: https://www.frixlaw.com/law-library/cases/9707717

## Case

- **Full name:** Bill J. Christopher, Petitioner v. Workmen’s Compensation Appeal Board (Dravo Corporation), Respondents
- **Court:** Commonwealth Court of Pennsylvania
- **Decided:** April 4, 1989
- **Citations:** 124 Pa. Commw. 562; 556 A.2d 544; 1989 Pa. Commw. LEXIS 193
- **Precedential status:** Published
- **Opinion:** Concurrence by Barry
- **Judges:** Barry, Smith, Narick, MacPhail
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9707717

## How later opinions describe it (automated extraction)

- 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

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9707717. Public record. Not legal advice.