The opinion
CONCURRING OPINION BY
Judge McCullough.
I agree with the Majority that the evidence supports the WCJ’s determination that the employer met its burden of proof in this suspension proceeding. However, I would employ a different analysis to reach this conclusion.
First, I believe our courts must clarify the fundamental question of when a claimant on total disability status has a duty to look for work. This Court’s recent decisions indicate that accepting a pension is the event that triggers a claimant’s obligation to seek employment, and with this I disagree, particularly because this analysis excludes consideration of the claimant’s medical condition. Rather than imposing a duty to find work before a claimant has been medically cleared to do so, I would conclude that a totally disabled claimant has no duty to look for work unless and until the employer issues a Notice of Ability to Return to Work pursuant to section 306(b)(3) of the Act, 77 P.S. § 512(3).
Section 306(b)(3) of the Act provides as follows:
If the insurer receives medical evidence that the claimant is able to return to work in any capacity, the insurer must provide prompt written notice, on a form prescribed by the department, to the claimant, which states all of the following:
(i) The nature of the employe’s physical condition or change of condition.
(ii) That the employe has an obligation to look for available employment.
(iii) That proof of available employment opportunities may jeopardize the employe’s right to receipt of ongoing benefits.
(iv) That the employe has the right to consult with an attorney in order to obtain evidence to challenge the insurer’s contentions.
77 P.S. § 512(3).
The form advises the claimant that his right to benefits is contested as of a certain date. “Pursuant to Section 306(b)(3)(ii) of the Act, a claimant has an obligation to begin pursuing employment opportunities upon being supplied with a Notice of Ability to Return to Work.” Phoenixville Hospital v. Workers’ Compensation Appeal Board (Shoap), 2 A.3d 689, 696 (Pa.Cmwlth.2010) (emphasis added). Compliance with this provision is a threshold burden an employer must satisfy in order to obtain a suspension or modification of a claimant’s benefits. Struthers Wells v. Workers’ Compensation Appeal Board (Skinner), 990 A.2d 176 (Pa. Cmwlth.2010); Secco, Inc. v. Workers’ Compensation Appeal Board (Work), 886 A.2d 1160 (Pa.Cmwlth.2005); Allegis Group (Onsite) v. Workers’ Compensation Appeal Board (Henry), 882 A.2d 1 (Pa. Cmwlth.2005).
*644 Certainly where a claimant has no duty to seek employment, he cannot be penalized for not doing so. Therefore, I would suggest that, because a claimant receiving total disability has no duty to look for work unless and until the employer provides notice pursuant to section 306(b)(3), the claimant’s efforts to find work — or lack thereof — prior to this triggering event have no relevance in a suspension proceeding.
In this case, Claimant began receiving total disability benefits when he was laid off from his light-duty position in 2000 or 2001. From the time Claimant was laid off he supplemented his workers’ compensation benefits, first with unemployment compensation, then with a Social Security pension and a pension from Employer. Employer sent Claimant a Notice of Ability to Return to Work on December 3, 2007. The notice informed Claimant of an IME determination, dated November 14, 2007, that he was capable of full-time, medium duty work. (R.R. at 58a.) Employer filed its suspension petition on December 11, 2007.
At a February 20, 2008, hearing, Claimant testified that, beyond registering at the unemployment office when he was laid off, he had not actively looked for work. Claimant also stated that he believed he was capable of performing light-duty janitorial work and that doctors had cleared him for work involving modified lifting. (R.R. at 15a, 17a, 20a.)
I would conclude that the suspension of benefits is appropriate here, based on the medical evidence presented and Claimant’s admission, approximately ten weeks after receiving the Notice of Ability to Return to Work, that he is capable of performing some work but has not attempted to find any. Under these circumstances, Employer met its burden of proof and established its entitlement to a suspension of benefits.
Second, it is important to clarify that receipt of a pension is not the factual or legal equivalent of retirement, or withdrawal from the workforce, in every case. It is true that in most instances an employee must withdraw from his employer’s work force in order to be eligible for a pension. However in many instances, such as the present matter, that is not the case.
Where, as here, the employee has been laid off, the employer has effectively removed the employee from its workforce, and the application for a pension merely formalizes the circumstances that already exist — the employer has severed the employment relationship in both the factual and the legal sense. Under such circumstances, the receipt of a pension is not a separation from the employer’s workforce and thus, there is no rational basis for shifting the burden of proof from the employer, affording the employer any presumption, or imposing any duty upon the claimant. Instead, in eases like this, the receipt of a pension is merely one fact for a WCJ to consider in deciding a suspension petition.
I believe the importance of the distinction between receipt of a pension and retirement is reflected in decisions such as Southeastern Pennsylvania Transportation Authority v. Workmen’s Compensation Appeal Board (Henderson), 543 Pa. 74 , 669 A.2d 911 (1995); Republic Steel Corp. v. Workmen’s Compensation Appeal Board (Petrisek), 537 Pa. 32 , 640 A.2d 1266 (1994); Nabisco v. Workmen’s Compensation Appeal Board (Kelly), 148 Pa. Cmwlth.343, 611 A.2d 352 (1992); and Dugan v. Workmen’s Compensation Appeal Board, 131 Pa.Cmwlth. 218 , 569 A.2d 1038 (1990); among others, all focusing on the presence or absence of a claimant’s unequivocal testimony that he intended to *645 retire. 1 Indeed, I believe that the need to carefully distinguish between receipt of a pension and retirement becomes more apparent every day; just recently, the City of Pittsburgh announced it might be rehiring “retired” police officers.
More important, the remedial purpose of the Act cannot be satisfied by an analysis that excludes consideration of an employer’s bankruptcy, an employer’s outsourcing of work, an employee’s loss of benefits upon being laid off or an employee’s ongoing financial needs, any of which might force an employee to apply for a pension irrespective of either his physical ability or his desire to return to work.
Accordingly, I respectfully suggest that by holding that the receipt of a pension effectively operates as a forfeiture of the right to workers’ compensation, 2 our court has overlooked the additional evidence concerning the claimant’s voluntary withdrawal from the workforce that our Supreme Court and this court previously considered. Finally, I would not overlook the fact that the Act treats a ‘pension as income, not as a disqualifying event.
In sum, I would reach the same result as the Majority, following the well-settled principle that an employer seeking a suspension of benefits bears the burden of establishing that the claimant’s earning power is no longer affected by the work injury. Landmark Constructors, Inc. v. Workers’ Compensation Appeal Board (Costello), 560 Pa. 618 , 747 A.2d 850 (2000). The employer can meet its burden by presenting (1) medical evidence of the claimant’s ability and (2) referral to an available job or expert opinion evidence, including job listings with employment agencies, etc., concerning available jobs in the claimant’s usual areas of employment. South Hills Health System v. Workers’ Compensation Appeal Board (Kiefer), 806 A.2d 962 (Pa.Cmwlth.2002). I would clarify that, if the employer establishes that the claimant has voluntarily retired, i.e., voluntarily withdrawn from the workforce, the employer is relieved of its burden to establish' job availability. 3 I also would *646 hold that the employer can establish the claimant’s withdrawal from the workforce by demonstrating, inter alia, that the claimant has not looked for work since receiving a Notice of Ability to Return to Work and is receiving a pension through his employer.
. For example, in Southeastern Pennsylvania Transportation Authority v. Workmen’s Compensation Appeal Board (Henderson), 543 Pa. 74, 76-77 , 669 A.2d 911, 912 (1995); our Supreme Court quoted this Court’s statement in Dugan v. Workmen's Compensation Appeal Board, 131 Pa.Cmwlth. 218 , 569 A.2d 1038, 1040 (1990) (emphasis added), that "suspension of compensation is appropriate if a claimant states unequivocally that he has no intention of seeking future employment." Although I do not suggest that such evidence is necessary, I believe that these cases illustrate that evidence of a pension, in and of itself, is not sufficient to establish an employee’s withdrawal from the workforce.
. See, for example, County of Allegheny (Department of Public Works) v. Workers’ Compensation Appeal Board (Weis), 872 A.2d 263 (Pa. Cmwlth.2005), holding that a claimant receiving a disability pension was presumed to have withdrawn from the [employer’s] workforce and therefore, in order to remain eligible for compensation, was required to prove that he was seeking employment or that his injury forced him out of the entire labor market. I would observe that the oft-quoted language set forth in Weis begins with the statement that disability benefits must be suspended "when a claimant voluntarily leaves the labor market upon retirement.” Id. at 265 (quoting Henderson, 543 Pa. at 79 , 669 A.2d at 913 ). I would not interpret this statement to mean that the receipt of a pension in every case presumptively establishes a claimant's voluntary withdrawal from the employer’s workforce.
.Rather than saying that the burden then shifts to the claimant, I would say that, as with every element of the employer’s burden of proof, the claimant may present evidence to rebut the employer’s evidence on the issue of his voluntary withdrawal from the workforce. If the claimant successfully rebuts the employer’s evidence, the employer remains obligated to demonstrate job availability.