Hertz Penske Truck Leasing Co. v. Workmen's Compensation Appeal Board

*669NEWMAN, Judge,

dissenting.

I respectfully dissent Because I believe that Hertz Penske Truck Leasing Company (Employer) was entitled to a suspension of Larry Bowers’ (Claimant’s) benefits as of March 31, 1988,1 would reverse the part of the Board’s decision reinstating Claimant’s total disability benefits as of that date.

In affirming the decision of the Board, the majority states that “Claimant satisfactorily performed his pre-injury job as a service manager right up to the time Claimant was forced to resign ... on February 3, 1988.” Majority Opinion at 663. I note that although the majority cites portions of the record that seemingly support this statement, the majority’s version of the facts is nonetheless inconsistent with the referee’s findings of fact on this point. Specifically, the referee on remand found that Claimant’s separation from employment was caused by his inability to meet Employer’s standards with respect to customer service and Employer’s fear that it was in imminent danger of losing its two main customers unless it replaced Claimant. Referee’s Decision dated July 7, 1992, Finding of Fact No. 5. Because the referee’s finding is supported by substantial evidence in the record,1 it cannot be disturbed on appeal. Wells-Moore v. Workmen’s Compensation Appeal Board (McNeil Consumer Products Co.), 144 Pa.Commonwealth Ct. 382, 601 A.2d 879 (1992).

I also take issue with the majority’s statement that the relevant inquiry before this court is not whether Claimant’s separation from employment was due simply to his own inability, but rather whether there was an element of fault on Claimant’s part, which removed him from the work force. According to the majority, to prevail, Employer was required to prove that it dismissed Claimant for good cause. Because the action before this court is a workers’ compensation proceeding, and not an unemployment compensation matter, I do *670not believe that Employer should have been held to the same standard.

The appropriate standard to be applied in determining whether a suspension of benefits should be granted is whether a claimant’s loss of earning power is a result of his own actions or misconduct2 and not the result of factors beyond his control. Wells-Moore. See e.g. Christopher v. Workmen’s Compensation Appeal Board (Dravo Corp.), 124 Pa.Commonwealth Ct. 562, 556 A.2d 544 (1989) (petition for reinstatement denied where claimant was discharged for non-performance, bad attitude and problems with expenses); Woodard v. Workmen’s Compensation Appeal Board, 49 Pa.Commonwealth Ct. 558, 411 A.2d 890 (1980) (benefits suspended where claimant’s loss of earning resulted from his discharge due to excessive absenteeism); Workmen’s Compensation Appeal Board v. John W. Galbreath & Co., 20 Pa.Commonwealth Ct. 283, 341 A.2d 541 (1975) (benefits denied where claimant was discharged because of excessive absenteeism and failure to report off from work).3

In the present action, the referee found that Claimant was capable of returning to his pre-injury position as a service manager as of March 31,1988. The referee further found that Claimant continues to suffer residual symptoms and limitations because of his work-related injury. However, as of March 31, 1988, those limitations no longer resulted in a loss of earning power. Beginning March 31, 1988, Claimant’s loss of earning power resulted from his own actions, namely, an inability to meet the standards set by Employer.

Because Claimant’s loss of earning power was the result of his own actions, and not circumstances beyond his control, I believe that Employer was under no obligation to establish the availability of suitable work, and Claimant’s benefits should *671have been suspended as of March 31, 1988. Accordingly, I would reverse that part of the Board’s order directing Employer to reinstate Claimant’s total disability benefits on March 31, 1988.

COLINS, P.J., joins.

. See Notes of Testimony of August 1, 1991 at 5-7, 16; Notes of Testimony of January 30, 1992 at 6-8, 28; and Deposition of John A. Woodard, an area vice president for Employer, dated January 13, 1992 at 6-10.

. I disagree with the majority’s position that "misconduct” may be used interchangeably with “good cause” and “willful misconduct.”

. Cf. Smith v. Workmen’s Compensation Appeal Board (Futura Industries), 80 Pa.Commonwealth Ct. 508, 471 A.2d 1304 (1984) (benefits reinstated where claimant was laid off from a modified job because of a downturn in employer's business).