dissenting.
I respectfully dissent. As the majority notes, this is a case of first impression. Although the question presented is difficult, I believe that the Act and our similar cases and Kachinski lead to a contrary result.
Initially, I disagree with the majority’s characterization of Claimant’s position as one of “admitted bad faith.” The record shows that Claimant produced at the hearing a letter report from his doctor stating that he was unable to perform any of the referred jobs. The referee chose to accept the contrary testimony of Employer’s medical witness. Admittedly this is fully within his authority.1 Despite Claimant’s medical evidence, and based on Claimant’s conduct at the second interview (informing the prospective employer that Claimant’s doctor had answered the question of whether Claimant wished to work there), the referee also made a specific finding that Claimant did not wish to be employed. Referee’s Decision of February 27, 1990, Finding of Fact (F.F.) No. 14; Reproduced Record (R.R.) 142a. The Claimant’s appeal to the Board expressly challenged this finding (noting that this record reflects over 70 referrals, and only Sunn Corporation reported that Claimant was not interested in the job), R.R. 144a. Claimant also asserted various errors *557of law (all relating to a contention that a defendant employer is not entitled to modification after a referred job is no longer available); R.R. 145a. The Board’s two-page opinion ignores the factual challenge and addresses only the legal question. On this appeal Claimant seeks review solely of the legal question raised by the termination of the offered job. As I see it, this is far from an “admission” of bad faith.
On the purely legal issue, the majority concludes that we should simply look to whether the employment at the outset is permanent in nature and ignore the fact that the employment here was actually temporary. This in turn is based on a conclusion that cases relating to the cessation of availability of modified jobs do not control where a claimant has no earnings to lose because of his initial bad-faith rejection of an offered job. Slip op. at 6.
Section 413 of the Act, 77 P.S. § 772, relating to modification, suspension or termination of notice of compensation payable, provides in part:
[W]here compensation has been suspended because the employee’s earnings are equal to or in excess of his wages prior to the injury ... payments under the agreement or award may be resumed at any time during the period for which compensation for partial disability is payable, unless it be shown that the loss in earnings does not result from the disability due to the injury.
In ordinary circumstances when this clause is applicable, this court has held that when a partially disabled claimant who is working a modified job is fired for cause, compensation payments and the employer’s duty to show the availability of suitable work do not resume because the loss of earnings is due to the firing, not to the work-related disability. Woodward v. Workmen’s Compensation Appeal Board, 49 Pa.Commonwealth Ct. 558, 411 A.2d 890 (1980).
The present case, however, presents a different twist. Here Claimant proved that the position that he declined subsequently ceased, i.e., was no longer available to anyone, as of a date certain following his rejection of the job offer. If he had *558accepted the job, he would have lost it without any fault on his part when the employer left town. Recalling that there is no dispute that Claimant is permanently partially disabled as a result of his original work-related injury, we must acknowledge that Claimant’s situation after the offered job ceased to exist is within the literal language of Section 413. Before the job ceased to exist Claimant’s “loss in earnings” as compared with his pre-injury situation was due to his unexcused failure to accept the offered job. After the offered job ceased to exist Claimant’s loss of earnings resulted solely “from the disability due to that injury.” If the job had continued to exist, Claimant’s loss of earnings would be due to his rejection of the job offer. Here, it is undisputed that such was not the case.
I believe that the majority incorrectly fails to distinguish Jayne, Spinabelli and Korol on this basis. In each of those cases, nothing in the record suggested that if the claimant had timely accepted the position in question he could not have worked in that position indefinitely. Here Claimant succeeded in proving otherwise. The pivotal statement in Spinabelli, e.g., simply does not apply to this Claimant: “[Here] Claimant’s loss of earning power is not due to his disability, but due to his lack of good faith in pursuing work made available to him which was within his physical limitations.” 149 Pa.Commonwealth Ct. at 365, 614 A.2d 779. Claimant is not contending, as the majority asserts, that a claimant can cure a bad-faith rejection simply by applying at a time when that position is filled (see Holmes v. Workmen’s Compensation Appeal Board (Pisani Brothers, Inc.), 86 Pa.Commonwealth Ct. 543, 485 A.2d 874 (1984)) or that the job offer has been withdrawn (see Jayne v. Workmen’s Compensation Appeal Board (King Fifth Wheel), 137 Pa.Commonwealth Ct. 211, 585 A.2d 604 (1991)).
The majority does distinguish St. Joe Container Co. by describing it as a case where the claimant knew at the time he was offered the job in question that it was temporary. Again, I disagree. There the claimant was offered a permanent, specially created job. However, had he accepted it and worked in the position for more than six months certain *559adverse consequences were sure to follow, including loss of thirty-six years of union seniority. He decided not to accept the job. Although the employer offered to let him “try it out” for six months, the claimant chose not to work the job temporarily or until the adverse consequences would take effect. The referee concluded that the claimant was subject to a permanent modification, but the Board concluded that the adverse consequences rendered the job legally “available” for only six months, and so approved only a limited period of modification. This court affirmed. The claimant did not know at the time he rejected the job that it would later be held to be “available” for only a limited period.
If Employer is not required to reassume the responsibility to show availability of suitable work, then a denial of benefits is actually being based on a theory outside the requirements of Section 413. The majority pursues such a theory by reference to the statement in Kachinski that the procedures specified there for return to work of partially disabled employees depend on the exercise of good faith by both parties. The majority essentially adopts Employer’s position that this principle requires that bad-faith refusal of a job offer deserves to be punished, and the appropriate punishment is the termination of the employer’s responsibility to show the availability of suitable work. Anything else is results in treating a bad-faith claimant the same as a good-faith claimant.
One point this analysis overlooks is that the two are not really treated the same. Under Kachinski a claimant who rejects a job offer is treated as if he had accepted the job. He is punished by the deduction in benefits equal to the wages that he would have earned had he accepted (but no more or less), resulting in a modification or a suspension. He has substantially reduced income as compared with a claimant who accepts a job offer. The Supreme Court expressly mandated this sanction when it established the return-to-work procedures. The Supreme Court did not contemplate or address the situation where the job is phased out or ceases to be available, but Kachinski does not require or imply that the claimant should be treated differently than if he had accepted *560the job. I believe the result reached by our majority imposes a harsh and unwarranted penalty on this claimant and the others who find themselves in a similar situation.
In summary, I foresee no danger that bad-faith claimants will intentionally reject job offers with the hope that the job will cease to exist. Where a claimant proves the job is no longer available, I see no basis for requiring the further sanction of permanent modification.
. We have held that a claimant who refuses to pursue job referrals may be on dangerous ground if the referee, as factfinder, rejects the claimant’s medical evidence attempting to rebut the employer’s evidence of change in condition or the suitability of particular jobs. Roadway Express, Inc. v. Workmen’s Compensation Appeal Board (Lewis), 113 Pa.Commonwealth Ct. 230, 536 A.2d 870 (1988).