dissenting.
While I agree with the majority that the situation in this case creates the potential for abuse, and that the legal equation introduced is one of first impression, I cannot agree that the solution is to create new law by adopting a strict prophylactic rule because of the possibility of abuse or difficulty with the issue.
First, there is as much potential for abuse one way as there is the other; for example, an employee, once having suffered a compensable injury, might believe — rightly so under the majority’s view — that he can do whatever he pleases and not be vulnerable to discharge for willful misconduct.
Second, although certainty in the law is a laudable judicial goal and an appealing avenue of approach in this case, certainty in the law should not have rote mechanical application as a traveling companion when traveling that avenue. This approach, I am afraid, would provide only a facile solution to a complex problem. Suppose, for example, a claimant steals funds from his employer and the police investigation proves beyond doubt that this claimant was the thief. But suppose further that the investigation is completed only after the claimant’s injury occurred and partial disability benefits had begun. Under the majority’s new rule, the claimant may be prosecuted for the crime, but may not be fired.
*?The referee in this case correctly posed the issue in his sixth finding:
The only issue in this claim is whether the claimant was discharged for good cause.
He then went on to decide that issue in his seventh finding:
Your Referee finds that the claimant was discharged for good cause, because he had violated the work rules of [UPS].
Referee Wayne R. Rapkin made the hard choice and was not dissuaded from his responsibility because of the difficulty of the issue before him. Nor should we be.
It is clear beyond peradventure that a claimant discharged because of his own misconduct is not entitled to have his compensation benefits reinstated, Crain v. Small Tube Products, Inc., 200 Pa. Superior Ct. 426, 188 A.2d 766 (1963); John W. Galbreath & Co. v. Workmen’s Compensation Appeal Board, 20 Pa. Commonwealth Ct. 283, 341 A.2d 541 (1975), and I fail to see how the decision to determine an employer’s intent when discharging the claimant — whether for justified willful misconduct or on specious grounds asserted only to deny a claimant’s legitimate claim for benefits — is any more or less difficult because the conduct occurs before or after the injury or before or after benefits begin. Either way it is difficult, but I submit it is no more difficult than determining whether an employer had anti-union animus in discharging an employee in a case before the Pennsylvania Labor Relations Board on a charge of an unfair labor practice. See, e.g., City of Reading v. Pennsylvania Labor Relations Board, 130 Commonwealth Ct. 397, 568 A.2d 715 (1989) (applying Section 1201 of the Public Employe Relations Act, Act of July 23, 1970, P.L. 563, as amended, 43 P.S. § 1101.1201).
As Judge MacPhail articulated in a similar case, where the issue was job availability for a partially disabled claimant, Smith v. Workmen’s Compensation Appeal Board (Futura)
*635We do not imply that the Employer was in any way intending to subvert either the letter or the spirit of the Act. Nevertheless, this is a situation which has a unique potential for abuse if the employer can forever meet the burden of showing job availability by providing a modified job for a partially disabled claimant. It is our intention to find the middle ground between that situation and one where the employer is forever the insurer of a job for a partially disabled claimant.
Just as a “unique potential for abuse” did not interfere with the decision of a difficult issue in Smith, we too should here decide the merits of the case before us on the facts as found and determined by Referee Rapkin. I would reverse the Board and affirm the referee.