Dissenting Opinion ry
Judge Craig:After a final order had established a termination of disability despite contrary medical evidence offered by the claimant, the same referee subsequently reinstated *625partial disability status as of a date approximately two years after the termination date, on the basis of a medical opinion from a different doctor who first examined the claimant on that later date.
Is the evidence legally insufficient for a reinstatement simply because the plaintiff has not supplied independent proof that his disability had diminished or ceased after the termination date, so as to demonstrate that the reinstatement-date status constituted an increase or recurrence of disability?
In this case, the claimants successive medical experts have consistently placed on the record their opinions that he was disabled on June 18, 1979, and also on June 26, 1981. Because the referee and the board declined to accept the first opinion, and accordingly terminated disability status as of June 18, 1979, the record shows a final adjudication of the non-existence of disability as of that date. The physician who next examined the claimant—seeing him initially on June 26, 1981—testi-fied that the claimant was then disabled, but that physician, of course, could not testify upon a firsthand basis that the claimants disability had been less severe or non-existent previous to that 1981 date; that second doctor logically could only accept the employers expert testimony to the effect that disability had been less or nonexistent earlier, in 1979, just as the referee and board had accepted that testimony as the basis for a final termination adjudication as of that earlier date.
Certainly, as to a reinstatement petition, the claimant bears the burden of establishing that the disability has increased or recurred after the date of the prior award, and, to meet that burden must show that his or her physical condition has actually changed in some manner. Memorial Osteopathic Hospital v. Workmen's Compensation Appeal Board (Brandon), 77 Pa. Commonwealth Ct. 518, 466 A.2d 741 (1983).
*626However, where a claimants earlier evidence has supported the existence of disability, but the claimant has lost at that point, why should the claimant be barred from pointing to that losing determination in order to identify his subsequent disability status as a recurrence? If the claimants medical witness or witnesses familiar with his condition on the termination date have deemed him to be then disabled, must the claimant somehow later turn around and concoct independent evidence to establish a lessening or disappearance of disability?
Perhaps a claimant could lay a basis for proof of a recurrence by procuring for himself a repetition of the medical testimony previously given for the employer, which had declared him not to be disabled at the earlier juncture. But why should the claimant have to resurrect that adverse testimony when the workmens compensation officials have accepted it as conclusive, and it has crystallized in a result which is res judicata?
Although the claimants 1981 doctor did not explicitly describe the claimants condition in relative terms as “worse” than it was previously, when a physician, with reference to a person previously held to be able, declares that person to be currently disabled, it would seem that such an opinion inescapably connotes, as a matter of logic, that the current condition is “worse” than the previous one.
Here the Workmens Compensation Appeal Board theorized that the claimant must obtain independent proof to show a worsening of his condition, rather than rely upon the boards own determination, because to hold otherwise “would allow a Claimant, dissatisfied with an award, to visit more doctors, have more tests performed, and seek reinstatement simply because he has stronger evidence than previously produced.” However, as noted above, the less palatable alternative appears to be that, in a situation such as the present *627one, the claimant would have to pursue the invention of proof contrary to his earlier presumably honest submission, in order to comply with the change-of-condition test.
Harry Halloran Construction Co. v. Workmen's Compensation Appeal Board, 39 Pa. Commonwealth Ct. 272, 395 A.2d 325 (1978) is distinguishable because in that case the claimant did not testify that his pain had increased or was in any way different from that which he had previously experienced, while, in this case, the claimant acknowledged that he could work briefly on one date after the termination date but was not thereafter able to work. Moreover:
In Halloran the claimant sought only to introduce new evidence as to the extent of a disc-type injury which he had incurred and which had been the subject of an earlier award. . . .
H. Weinstein/Clyde Shirt Co. v. Workmens Compensation Appeal Board, 65 Pa. Commonwealth Ct. 598, 601, 443 A.2d 857, 858 (1982). The Weinstein case, in which this court affirmed the reinstatement of benefits granted by board and referee, involved elements both similar and dissimilar to the present case. There, as here, the claimant sought reinstatement of benefits from the date of the previous unappealed benefits termination decision. On the other hand, the medical proof in Weinstein indicated a fresh cause of disability, a work-related aggravation of a degenerative disc disease, which was recognized as a qualitative change of condition from the fractured vertebrae causing the original disability. However, there obviously can be a valid recurrence of a disability even where the medical nature of the condition is the same as that which was involved in the original disability. Therefore, the Weinstein case illustrates an alternative basis for a reinstatement, but not the exclusive basis upon which a reinstatement may be founded.
*628Even though we might have some skepticism about the referees credibility determinations in this case, which accepted the conclusions of the employers doctor as of the earlier date and rejected them as of the later date, the referee nevertheless remains the arbiter of such credibility questions, not the board.
The boards decision should be reversed because the board has sought to negate a credibility determination by the factfinder, which is well founded on the basis of (1) the earlier adjudication of non-disability, and (2) the substantial competent expert evidence that disability existed subsequently—and therefore had recurred.
Moreover, such a reversal order should direct a modification of the referees decision, to require that total disability status be reinstated. The claimant asserts the principle that the employer has the burden of establishing that work is reasonably available to the claimant within the medical restriction imposed and compatible with the claimants educational and vocational background, by proof that suitable jobs are available in the local job market. Barrett v. Otis Elevator Company, 431 Pa. 446, 246 A.2d 668 (1968); Livingston v. Workmen's Compensation Appeal Board, 67 Pa. Commonwealth Ct. 497, 447 A.2d 715 (1982). The employer straightforwardly agrees with that principle and also soundly agrees with the claimants correct assertion that there is not a shred of support for the referees Finding No. 5, wherein he found that work was available to the claimant in the marketplace at $3.35 a hour for a forty-hour work week. Of course, the employers position is that this work availability issue—which the claimant has also preserved—is not reached because of insufficient proof of disability. However, for the reasons stated above, the record supplies an adequate basis for the referees findings reinstating disability, which remains total in scope so long as the employer has laid no work availability basis for a partial disability determination.