and i think on rather further reflection of try to eliminate one of the issues before the court somewhere a version of the better part of valor is discretion namely while the petitioners believe that the rule against raising a new issue for the first time on appeal does not apply for several reasons which i could prepared to cite to this panel and the extraction record setting the excerpts i'll stipulate that that issue is not before the court and withdraw the issues of the residual wage earning capacity under section eight h that means if i should be correct if not that the retained wage earning capacity was nine hundred thirty three dollars seventy eight cents is found in the decision of the judge it excerpts of record of page fifty one fifty two that number becomes for the post injury wage earning capacity the law the case i i think that will narrow it the focus i'd like to get in and i can see that we've got an uphill battle because section ten c has broad parameters and the parties have agreed to ten c was the proper formula to use and the this court has consistently interpreted as one should for humanitarian been efficient social legislation section ten in a manner that will as i quote from it to like we are but we are buttressed by the knowledge that some over compensation is built into the system institutional i agree that there is that those are the fundamental principles but when talking about intent to work two jobs i'm reminded of one summer my first job after being a j d had taken the bar and i was waiting for the results of the bar so i started work for flaming construction as a carpenters assisted and then also in the evening pineapple willies as a waiter at a politician themed restaurant now did i school my primary job was to go to high school but that didn't stop me for working for my brother's gulf state state service station and i still wonder for this day how much i got paid the same factors of intent are should be looked at  very carefully woods some scrutiny of what the facts actually are and also we have a pretty differential standard or i greet substantial evidence means more than this is the first time i can honestly say with a straight face i know what us until it is it's look it's this case it's less than a scintilla i've never had an appeal or even a trial involving the longshore act and where in which we it we both sides had accumulated such massive amounts of wage earning data we have his annual wages for eleven years preceding injury we have the documented days that he worked two jobs in six years before the injury nine days we have the documents to establish in there in the record the number of times that he worked double shifts after the injury that was eight days seventeen days in a period of six years is the documented intent to work two jobs you know scintilla house counsel with respect that there's there's more is there not i mean it's  accommodate his burley's job he worked both job between august ninth in august twentieth when he was laid off and then he had a prior history of working two jobs that demonstrate he was willing to work as much as possible including working two jobs now you may discount that but that is evidence is it not that on the record this was there that the a l j could have taken that into consideration and in so far as germination  what his intention was i agree however if you examine each component of what you do what your are just read there's contrary evidence which i'm sure i'm spread so that's where they all just do their way evidence and they make a determination but they have to do it in a rational manner that is not arbitrary capricious or absurd this is absurd to say he helped the other evidence she relied upon you did not quote was he helped his brother in law paying some apartments that's not different than my high school or law school years who could get tips though no he did get paid he claimed but he never produced enough for pain high school no no no no the i'm referring to it is a panther he did get paid but he did not produce the records of the work that he did the brother in law's unit but to the the three points that you quoted your honor yes mr that's exactly what mr newton said but he also said and the judge discounted dig nort what would make it substantial evidence testimony that he found a better job and he took it he had been working for that second company since early may of the year of the injury this man was going through a career change a career change does not result in the los was just an average weekly wage job that he took that we need to keep the other one to seventeen days in six years is my only response to that i mean it's an iota it's an atom it's the small i'm reminded of the media will expression how many angels can dance on the head of a needle or pin or whatever that never figured out well i don't think we can figure out his intent because he did not demonstrate actions speak louder than words he did not demonstrate that intent in any manner that's a substantial i agree there's deference to the judge but there must be some limits on how you calculate average weekly wage in a reasonable manner further this is not a small she did totally ignored the issue of the ship industry in decline i gave you the numbers it one point when he its time of the injury there was three hundred to five hundred employees at the shipyard less than a mile from here the time of the hearing the number of employees was i'm sorry in two thousand and six it was three hundred and in two thousand and seven they were down to one hundred fifty three employees hundred fifty ploys is not a mom and pop shop but the calculation of a worker's compensation benefit based on subjective intent not verified by action is not healthy it's not healthy for business it's not healthy for entrepreneurship and it doesn't it doesn't reflect what he actually did you any body can say i want i want to win the california i intend to win the california lottery i did in the last chance but the stretch of the imagination is just about as far if you counted the actual days as i did in the brief there was fifty three percent of one percent for seventeen days over six years with respect gals i mean i appreciate  and come up with a terminations in this case one that you don't agree with but but isn't that the role of the ale de it's not absurd on its face as it it is a with it but it's not absurd i know that's entirely my point i would don't like substantial evidence pills because i'm arguing the facts but the facts have that outer boundary of rationality then we the man didn't work two jobs period yeah i mean you're seventeen days of two jobs i don't understand you think you're a good witness for your side but they are a traitor didn't agree with the witnesses on your side and credited the testimony that was given so that's what i'm struggling with i mean i'm not saying your position is irrational either but  the fact that the industry is in decline which is sad for everyone is not something that's taken into account by this law as it well then how do we my death to the question rather than a posing a question how do we innocent that's what the l g a thought of looking at this right here given the amount of evidence it comes and i don't think i would consider it considered a scintilla whether it's substantial is of course the issue before us which is the definition of substantial evidence more than  scintilla case after case after case there are many other average weekly wages that could have been established the evidence is to record one twelve listed his wages by the combination by the judges combination of two one year before injury and one year after year three she comes up the judge came up with a wage figure of over ninety eight thousand dollars ninety six thousand dollars he never made ninety six thousand dollars as long as he live there's there's with all due respect to the deference afforded to the o j what rational means could that have been extended for he only to ninety eight thousand when the most you ever earned was sixty seven thousand the lowest you ever heard was forty three thousand there must be some russian relationship but i appreciate the court's time and i think you understand our argument very well counsel you have some reserved time thank you to hear from the respond may please the court i'm joshua go on appearing on behalf of mr the ponta i think the court understands correctly that this is a pretty much of a stock substantial evidence question that is before the court and that the ale jay did have evidence not only the claimants direct testimony that that's what he would have done but for the injury but the other circumstances that the ale j n numer light duty ehrlich's job until his neck injury precluded any further shipyard work based on doctor's recommendations and the results of the m r i that showed just how precarious his neck situation was he arranged to work not on day shifts at the shipyard when there was work available there and worked every single of vailable shift until again  continue working all available shipyard shifts i think those two things the claimants own testimony plus the supervisor's testimony about what he understood from the pon one thousand range was far above what your client earned while he was working full time at the shipyard any comments on that yes there are two cases that have been before this court previously one previous employment had the other circuits have had cases on very similar facts when you've recently gotten the job of course your annual earning capacity forward looking as of the time of the injury in that new job is going to be far higher than what you earned before when you and in some cases the claimant had only been a babysitter before and had earned hardly anything but having gotten a shipyard painting job and with the prospect of continued employment like that the claimants earnings would have been far in excess of what he or she has earned previously from your perspective even though  the yard may feel it's unfair the reality is that's the way the law is drafted in our case law tends to affirm the fact that if you had this new job with higher benefits that's just the way the math works out precisely because earning capacity under section ten c of the act is a forward looking concept and even though the claimant previously had not had such high earnings he reasonably could have expected to enjoy those much higher earnings expand on the last question the nine hundred i don't deny that this man should be entitled to him ward for and it can be printed partial disability it's the amount that we're talking about that makes it so confounding what's your response to opposing counsel's comment that section hence is of the forward looking refers to a forward looking aspect of the law it should be applied in a rational manner the numbers can special meaning if they grew with you know the geneva tip no no you were there no what i mean is that he's entitled to he had an injury couldn't go back to the waterfront that's in so i can understand the argument and would not quarrel over some limited permanent partial disability but to say that he made ninety six thousand and that would be the projection of what he would make from two jobs in a ten c average weekly wage this is on page one e r one twelve the summary of these earnings of one thousand one hundred twenty one sixty seven so that there would be a definite wage loss where you made was making twelve hundred in the year two thousand and one of the injury versus nine thirty three seventy eight afterward which i stipulated is the wage earning capacity under section eight age the term earning capacity intensity and the term wage earning capacity in eight h is the same and does have that forward component but within reason that would result in a modest part permanent partial disability award which would have been appropriate if you took the actual reality of what he made over the years thank you thank you counsel the case just argued will be submitted for decision and the court will a