dissenting.
Because I believe that the policy espoused by the majority will create a great deal more harm than it seeks to remedy, I respectfully dissent from the majority opinion which, in effect, holds that an employer may permanently terminate all future benefits of a claimant because he is in prison. Specifically, the majority concludes that Steve’s Prince of Steaks (Employer) was entitled to a continuing suspension of Andrew Mitchell’s (Claimant) benefits as the result of his incarceration and subsequent inability to pursue jobs referred to him by Employer.
At the core of the majority’s decision is the premise that an employer may suspend the benefits of an incarcerated claimant under the guidelines set forth in Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987), while the claimant is still incarcerated and not receiving benefits pursuant to Section 306(a.l) of the Workers’ Compensation Act (Act).1 As support for this principle, the majority cites Banic v. Workmen’s Compensation Appeal Board (Trans-Bridge Lines, Inc.), 550 Pa. 276, 705 A.2d 432 (1997) and two cases cited by our Supreme Court in that case, Brown v. Workmen’s Compensation Appeal Board (City of Pittsburgh), 134 Pa.Cmwlth. 31, 578 A.2d 69 (1990), petition *948for allowance of appeal denied, 527 Pa. 652, 593 A.2d 423 (1991), and Wheeling Pittsburgh Steel Corp. v. Workmen’s Compensation Appeal Board (Stanley), 38 Pa.Cmwlth. 370, 395 A.2d 586 (1978). Brovm and Wheeling Pittsburgh Steel, however, merely stand for the proposition noted in Banic and exemplified in Section 306(a.l) of the Act: An employer is entitled to suspend a claimant’s benefits during any period of incarceration. Banic went no further and certainly did not discuss the permanent implications of a claimant’s incarceration. In fact, the Court stated as follows:
While not part of the record, appellee notes in its brief to this Court that appellant’s workers’ compensation benefits were reinstated upon his release from prison on July 14,1995 without appellant filing a petition for reinstatement. Thus, the issue of whether a claimant’s release from prison automatically entitles the claimant to a reinstatement of benefits is left for another day.
Banic, 550 Pa. at 286 n. 8, 705 A.2d at 437 n. 8 (emphasis added). Accordingly, I do not believe that the above cases support the policy adopted by the majority, nor do I believe that the General Assembly intended the suspension of benefits as the result of incarceration to exceed the period of incarceration.
Under the conclusion reached by the majority, I fear that many employers who discover that a claimant has been incarcerated will simply “create” a job and offer it to the incarcerated claimant, knowing full well when it is offered that the claimant cannot possibly appear for an interview, or physical examination, because he or she is in jail. The law is now settled that, once a Claimant refuses a position in “bad faith,” the resulting modification is final and is not restricted to the period for which a permanent position is available. Korol v. Workmen’s Compensation Appeal Board (Sewickley Country Inn), 150 Pa.Cmwlth. 279, 615 A.2d 916 (1992). Likewise, a claimant’s assertion that a job was not available when he inquires about it will not defeat an employer’s suspension of benefits. See Holmes v. Workmen’s Compensation Appeal Board (Pisani Brothers, Inc.), 86 Pa. Cmwlth. 543, 485 A.2d 874 (1984) (Fact that the job was unavailable three months later when the claimant first inquired about it does not defeat the employer’s case).
Thus, the employer may, in effect, obtain a permanent suspension of the claimant’s benefits because of the claimant’s purported “bad faith,” unless the claimant escapes from jail to present himself for a job interview; he may not “cure” his bad faith by later (when he has been released from jail) informing the employer that he is now available for work. Such a scenario not only flies in the face of the humanitarian purpose and policies behind the Workers’ Compensation Act, it is, in my view, unconscionable. Accordingly, although I agree that Claimant’s incarceration cannot act as a defense to the suspension of his benefits while he is incarcerated, see Section 306(a.l), I believe that his incarceration can and should act as a defense to a “bad faith” accusation and subsequent termination which will be effective even after he leaves jail.
. Act of June 2, 1915, P.L. 736, as amended, 77 P.S. § 511.1, added by Act of June 24, 1996, P.L. 350. That Section provides as follows:
Nothing in this act shall require payment of compensation under clause (a) or (b) for any period during which the employe is incarcerated after a conviction or during which the employe is employed and receiving wages equal to or greater than the employe’s prior earnings.
77 P.S. § 511.1.