the next and final arguments this morning is an appeal number zero six that's three one eight zero left versus department  mr james good morning welcome back you see we have a number of clients from the same profession so we're always glad to see you and mr carpenter and others too through peer peer repeatedly on behalf fire fight effect change in that position or does it not mr let's method his first and only application for legal benefits in ninety seven right that's correct nothing more as coverage determinations happen in the years that follow as things change and six months deadlines expire one after to the effect that his positions as he began his career grueling national park either or would be submitted for coverage ultimately that it was his that same supervisor who paperwork necessary for those position coverages which i think those are the more the positions that would preceded that right correct and then afterwards he has a multitude of coverage determinations with six months deadlines that expire in ninety eight and ninety nine and two thousand and two thousand and two and two thousand and three and he does nothing  early retirement in the higher pension and so forth had to apply and that if he applied for it and it was denied then he had a right to appeal and  exercise that right to appeal you had to do it within a fixed time and not to judge later pointed out that every time your client applied for something and lost he had a new six month appeal period but i nine notice was given to mr last year but maybe you're missing my point what the eighty eight feet does on its own motion seems to me to be separate from the rights of the employee when he has applied for elio been and it isn't that correct this judge rater suggested that every time that he could have applied for or did apply for benefits he failed to appeal a negative result within six months i disagree with you were a choice decisions of this corridor law the handbook is not and his supervisors instructions are not law nor are they the changes in positions to which he can or must respond and then they're kind as a matter of law they certainly have committed to their employer pool that's how they're going to deal with everything and it is not a breach of contract case i understand this is this is not an equitable case where we're saying well we're going to make the agency live b handbook or they lose this great law case i think and what is a significant change in position the significant change in position is the post  makes no difference whether i have benefits in the one or the other they were the change in the job when i made that book but by law and regulation retirement benefits are recognized to be something more significant than a change in health benefits for example some of some of the lesser i don't get it may be but they don't change the position under any authority that i'm aware of the way  change the position if you change the job description you change the job title you have somebody do something totally different in fact than what their job description or position will imply but have nothing to do with whether a benefit credits are being given or not being given but first this is a mystery of matter a position covers determination does change the position description and is an express the education that goes with that because it's a significant component client didn't within any six month period after you entered one of these positions file a claim is not true closes that there is nothing there is no law that suggests that the don't apply within the first six months if you don't apply within the first six months or if you go reply when there's a significant change in position it's for that reason that with a significant risk the six month deadline i packed to the significant change in question was whether employees promotion was a significant change in position or determined that the employee was not covered prior to promotion and then decided it was if you thought you'd received additional benefits you'd expect that there'd be additional withholding wouldn't you if you you would have observed over a period of time more money coming out of your check there's one thing we all look at and that's yes not just a change of any kind it's got to be a significant change yes you know what what do you attach to that word significant what is the meaning you would give to that we don't have any control in case law on that we just went over that the best thing you could find was dick this so we really don't know what a significant change in position is what would you say  here so how do we know what the reg writer intended here other than from peterson  ere in a covered position for the first six months after entering a position and speaking to the purpose for which mr lott cites this case the agency then made the opposite coverage decision  is at issue in this case the agency decided that employees who had been covered no longer would be covered and accordingly be ordered to term and that the six month provision should not be applied to those employees because  be nonsensical they were in the covered position for the first six months but the the a different set of petitioners i have been using great increase  dear i understand that that particular hypothetical is not necessary but yes you're right but if you're right then the government has to it's very simple and i think you've explained clearly there is some danger hazard which reduces the time that a person can serve in that position would a significant change be linked to those hazardous dangerous duties requiring physical radio technician and suppose that normally i'm doing radio work well behind the fire line and some base camp firing ten miles away and then  i'm assigned instead to actually go up to the fire line and go along the fire line and hand out walkie talkies to each of the guys up there with their pick axes and buckets and whatever else they have fighting the fire