dissenting.
I would reverse the Board and reinstate the decision of the referee granting employer’s petition for modification and ordering partial disability benefits, for the following reasons.
The majority relies upon Kachinski v. Workmen’s Compensation Appeal Board (Vepco Construction Co.), 516 Pa. 240, 532 A.2d 374 (1987) and Fledderman v. Workmen’s Compensation Appeal Board (Stackpole Carbon Corp.), 93 Pa. Commonwealth Ct. 44, 500 A.2d 215 (1985) in their determination that Staroschuck’s benefits should be reduced only for the six months he could have performed the *677new shipping clerk position without losing his union seniority-
The Supreme Court in Kachinski set forth the criteria for job availability to modify or terminate benefits. The fact that the available job may jeopardize union membership is not one of the criteria. In this case, the employer fully complied with the mandates set forth in Kachinski, i.e. employer established that work within Staroschuck’s physical capabilities was open and available to him but he refused to return to work because of the possibility of jeopardizing his union status.
In Fledderman, this Court found that there was no lack of good faith in claimant’s refusal to bid on an available job because the penalties which would result were too harsh. The claimant had been employed for 30 years as a carpenter when he was injured. Under the collective bargaining agreement with the employer if he were to bid on the available job he would have lost all of his seniority and job status as a carpenter. The referee awarded total disability benefits and the Board reversed. We reversed the Board, finding that the referee properly declared the job unavailable to the claimant in light of the penalties attendant upon its acceptance by him. However, in Fledderman, the employer did not declare the job open to claimant but merely invited him to bid for it; whereas, in the present case, the shipping clerk position was open and available to Staroschuck.
Furthermore, the record established, and the referee found as a fact, that Staroschuck would receive the same vacation benefits he previously had; credit for past retirement benefits earned; and life and health benefits of a salaried employee. Thus, the penalties which this Court found harsh in Fledderman are absent here. Staroschuck also had six months to try the available position without any effect on his union seniority. His failure to do so equates with a refusal to return to work and should disqualify him from receiving total disability benefits under the Workmen’s Compensation Act, which contains no provisions for *678continuation of disability benefits to claimants who refuse non-union work. The holding advocated by the majority engrafts upon the Workmen’s Compensation Act, as well as upon Kachinski, an exception for union members’ refusal of available work which neither the legislature nor the Supreme Court saw fit to provide.
If it is to become the policy in this Commonwealth to award total disability benefits to injured workers who refuse an available position because acceptance of the position may jeopardize their union status and/or rights accrued thereunder, such a policy should be articulated by the legislature either by amending the Workmen’s Compensation Act to so provide, or by enacting separate legislation requiring bargaining units to maintain union membership and rights therein acquired. Effectuating such a change is not the function of the courts.