work and ultimately paid a permanent partial disability or death out on the finding of medical stability and employer filippi through means of a labor market survey labor market surveys were performed in this case  after the data maximum medical improvement and it is on controverted in this case that mr castro was found to be capable of performing alternative employment to his former employment with my client through are you saying that he wasn't part of the rehabilitation that's not saying he wasn't entitled to rehabilitation your arm it's long been since section thirty nine of the act that an individual qualifies for rehabilitation may be rehabilitated by the direction of the district director what is at issue in this case is whether an individual is entitled to receive a permanent total disability compensation during that we have dilatation if they have a scheduled injury well that's true but what is the relevance labor market service the labor market serbia establishes employee ability now scheduled injuries are there's two types of permanent disability under the longshore act there is disability for so called scheduled injuries those body parts that are scheduled injury case looked at whether there was any type of permanent disability available to a scheduled injury claimant beyond what was contained in the schedule itself the number of weeks they're entitled to and concluded they were not that the argument that for the proposition that permanent total disability is available during rehabilitation and the foundation statute within his argument is section eight h of the act now in his brief  per week maintenance fee to be paid out of the special fund for individuals at the discretion of the district director who are in rehabilitation argument is bionic twenty five dollars injury longshoremen are not situation where the employers often voluntarily pay the compensation during vocational rehabilitation other compensation is paid because in the us you know nonstandard injury case which i'm like the schedule pays the person their last way trying to passively it's certainly within the employer's interest to promote the employability of the claimant and often they will even set up a vocational rehabilitation program of their own to pay them for compensation you have to partial disability under section eight c twenty one as an alternative to what was are contained in the schedule and previously the benefits review board had allowed claimants to opt for one or the other and the us supreme court said not you can't do that it's one it is that one remedy that's available for a scheduled interview that was not in the conte this is one on one c t at five twelve the language of the act plainly supports the view that the character the life of the disability determines the method of compensation employment a partial disability category section eight c provide compensation schedule there is no language in that additional paragraph in that section eighty twenty one indicating that it was intended to provide an alternative method of compensation for cases described in the preceding paragraph partial disability the only permanent disability available to a scheduled injury claimant is the schedule once employer ability has been shown and in this case the administrative law judge in the benefits review board are green that we demonstrated suitable alternative employment characterization i believe that the court is is clearly telling us that there is only one type of remedy available for these types of claimants and they look to the statutory history and the statutory history did not provide an perhaps more generous or in some way more fair this is and congress did not all they did was add a provision on hearing loss which has nothing to do with our knee injury here which is considered a like disability on their schedule congress did amendment was rejected but actually did provide that you couldn't war that remedy and if it is be your honour's there are any and the director has argued that the failure of congress to a doctor provision sometimes is viewed as not statutory history not adopt provisions which would have provided an additional benefit to persons such as mr castro of rehab of disability compensation during rehabilitation as in the interpretation  correct that and they simply did not in fact in the statutory history it's clear that they rejected the correction a correction that the supreme court had had directed to them the director here i different parts of the act for a proposition that doesn't exist within the act this is of the best form of recovery that didn't exist before and section eight age is the key and take a look at a d h that's the foundation for brick house and abbott and their argument take a look at it and you'll see that age by its terms applies only to section eight c twenty one type of injuries and those are unscheduled injuries that's the key distinction  and i would ask the court to consider that with very closely because this is the first time that this issue has ever been presented to a court of appeals i see that i'm close to my five minutes this court have any more questions the i think the bottom line is a very simple one and that is yes there is a difference i mean there's no question there is under long tractors differences between i schedule to work and schedule to work but in the context of vocational rehabilitation trying to get someone back to close to what their wage earning capacity was and allowing vocational rehabilitation it shouldn't matter because the bottom line goals of getting individuals back to work are the same we want to reach try to restore their  a schedule award and that schedule work needs to be paid these are mean whether or not you try to use that as an i scheduled manner the facts the factual circumstances and have gone were totally different and what the situation is here here we have really not only a physical situation in terms of what mr castro's physical disability was hidden but also economic considerations to the extent that if you feel good about the rehabilitation program we know that he cannot do other things at the same time situations and this is i think important a standpoint of permanent disability you could start of occasional programs without being at maximum not accord proven in this case that wasn't the situation that's why it was common to total disability benefits redirected into a different location well i guess it all gets down to what the definition of short is this is a two year program a short program i think that's a relatively short program a long program maybe that's a four year program certainly i think we probably all agree  month program is a short program for two years i think that's probably a pretty average vocational program you know that's two years at a community college that seems rather reasonable and in this case was the way to maximize  well the only thing he would get would be the twenty five dollars maintenance work from the secretary and you know i just i don't think anyone in this room is going to say that you can live on twenty five dollars a week i spend and go to school if he hasn't scheduled injury w to compensate as well well it's how long you're going to get your schedule toward intensive on the extent of your disability for schedule injury if it's permanent so in other words if you have a one percent disability have your need you're going to get a what type of how we're going to pay individuals when they have a scheduled injury and they weren't looking at it in the context of how vocational rehabilitation place into this and clearly vocational rehabilitation not want to have a say it's physical aspect to it what is  the employer voluntarily assumes that obligation typically and i'm scheduled injury awards where they want to try to maximize an individual's wage earning capacity so that they reduced our long benefits society and all employers the workers comp system generally all right thank you thank you good morning my name's peacefully and i'm here on behalf of the director of the office workers compensation programs i'd like to start out by strongly disagreeing with what the employer has said that the supreme court held in the  come case and he's quoted some language that is forth which i do not believe fully in compas is what the supreme court considered like to draw the court's attention to page two seven of the pepco case specifically footnote seventeen injury prevents the employee from engaging in the only employment for which he is qualified this conclusion is entirely consistent with the statute which in section eight a directs that permit told disability shall be determined in accordance with the fact specifically the court conceived of the fact that a scheduled injury may tell what amount to a total disability in this case the question of whether it was whether or not you could look at any alternative to the scheduled award whether shifting burdens to determine toll disability first we examine whether or not a claim a complaint in the form position in this case it's undisputed the claim that could not the burden shifts to the employer just show suitable alternative point what the courts didn't a brick house and arguably impact though they considered the fact whether or not factual determinations could make the employer or unable to show suitable alternative points in edwards this court considered factors such a education such as the claimants age such as disability these are all factors in whether or not the employer can make a showing what the average court did was not create some new form of fast that's the instead what they did was add a vocat rehabilitation issue but i would call that a court to that quote the court in the edwards case this court has specifically dealt with many factual considerations that have to be determined before you can look at whether or not a claim is totally disabled or partially disabled for the employer to state that in the pepco case that if they strictly ruled that you could not award these types of benefits is is not correct with regard to the employer's arguments regarding the statutory history and the its field amendments we'd also draw the court's attention to the difference between what was considered in those amendments and what is actually in place in the in the sac statute not only w different type of benefits that congress considered in fact if you look at the statutory history the l c a in the queer both provided you'll note every time the congress considers something it was for temporary total disability benefits what we talking about specifically in this section is eight ok which is permanent tell disability benefits these occur two separate times in the legislative history a supreme court's caution is he's very dangerous to look under section eight of the act permanent disability is not thoroughly defined there are certain instances where a claimant loses both legs both arms or both eyes which automatically permit all disability have all discussed what the facts of the case mean in terms of government disability and they've created this shifting burdens test of the l j went through the shifting burden status and found that the employer could not reasonably show that the claim was available for their light duty proposed jobs because they were working full time in vocational rehabilitation and when you take that in concert with the mandate that's given to the secretary to direct vocational rehabilitation and the importance of that goal it's clear that that's a factor that should be considered by the court to determine whether or not the person's permalink to be the question then i ask you co counsel with whether any consideration given individual had worked in heavy hard labor prison entire life and now could no longer do those types of positions and they looked at a reasonably short position which would return his long term wage earning capacity the next best interest justice white consider a very similar issue in the advocates where we were talking about a four year to vocational rehabilitation period and he said and i'm paraphrasing thing although he might not consider four years to be short period he did not want to interfere with the district directors of a case for rehabilitation in light of the mandate given to the secretary under thirty nine  retraining program in fact employed already had already been established the shifting burden scheme had already been satisfied by my client by finding jobs within mr castro's age education and work limitations and those those jobs  disability under the schedule throughout most of this program it's an important fact that mr castro had a private disability plan that paid him five hundred dollars a month during the avila taishan mr castro had no interest in for paying this total disability during we have is that the individual is not employed well during the rehab but in fact mr castro was required to work as part of this program seven hundred hours and in fact by the time of the form hearing he had work eighty hours and had received i believe seven dollars and fifty cents an hour at a marriott hotel as was the program was for to be a hotel clerk for his efforts by definition this case should not be an abbott type case because not only was he required to work he did work and he was paid to work rehabilitation program had what's in it so it's time boundaries mr mr castro lives on being a bridge island which is ten miles across from downtown seattle he would come in town for rehabilitation in fact that's where he would work if you worked at one of the bigger hotels in the region and his argument was that he could not do the jobs that we had already identified before he started this program because of these time constraints of the time it took to study but within the constraints time constraints of the program would be the seven hundred  well we didn't there's no procedure under the or at the end of the c p a level two to have any input at all into a program in fact the program itself on all elements of it according to the regulations are private and we are not allowed to even know about the program by the by the privacy statute in the regulations that made sense in the in the way that the programs were developed before abba came along but now that we are we have a vested interest in it and we employers have a vested interest in how much we're going to have to pay during this program which was never the case before abbott i believe we there needs to be some sort of procedure what do we appeal is there an