awarded a scheduled award of fifty percent last use of the first hole under eighty two we are asking that you revisit that and award a differential under eighty one as we all know the supreme court prefers wage differential words when there's a last burning capacity and in this case our client needs both prongs of the wage  the facts are largely understated so we know his earnings were for eighty five twenty five before the accident after the accident if you accept the expediter position which they put him in which we originally objected to it at trial but we can see that now and assume that he was able to earn three hundred dollars well there's a loss of earning right there that's one hundred eighty five twenty five difference and then incapacitated from pursuing his usual and customary law employment this was quite clear the commission focused on this and had the operation on them again at the commission making several statements throughout the decision he could no longer work as a janitor which the court decided and and basically is the commission is is without discretion the word shall is in the statute and makes it quite clear so based on that and sustain that decision regardless of whether the reasonings or findings within that decision are correct and sound and basically how i interpret that is if there are facts as we know this in our opinion this is a manifest weight standard here today if there are facts to support a denial of the wage differential contained in the record which i feel that there is ample evidence to show that then whether the reason is contained in the commission's decision to sensually it was kind of a rubber stamp of arbitrary matters decision there are facts to support that decision that should be affirmed i think we discussed in the council discussed as far as the election almost kind of election issue as far as how they proceed if you take a look at the stick she at the going for a wage differential i don't think you do but i think it would be safe it might behoove you to put something in there we are pursuing and i love her in total but in the alternative we will attempt to prove a wage differential assuming this court does not find this presented really a trial whether that's inappropriate is there a legal bar that you're calling attention i don't believe that there's a legal bar your honor i think you know if if given the facts are there but i think that leads me to my next series of points is that if you assume that there's not a waiver or  some pollies restrictions are pretty severe that are some poly situations or in two thousand and six i believe was in june subsequent to that two different f c's both of them were showing severe symptom advocation he has a base of pain behavior he saw an exaggeration the physical therapists have noted that you take that into account i know i pointed out in my brief the surveillance which was done at that after doctor some pollies permanent restrictions were issued show him he's he's moving laundry he's walking a dog he's doing all these things where when he's discussing why he can't do the expediter position or other positions that they were trying to during the course of vocational rehabilitation as far as elevating his leg the actual things that are shown in the surveillance and some of the f c s don't correlate with the ability to need those type of severe restrictions i think that in itself puts in question dr some pollies restrictions i think it makes a premature i think if you look at surveillance there because they become accurate having said that dr fletcher just subsequently se poly administers these restrictions and he says look i'm looking at my exam i'm looking at the see that was performed at his facility i'm looking at the surveillance video these restrictions are not valid he can go back to work doing the chair the janitorial position he was doing for the for the grade school i think that that was a huge wrinkles far as them being able to prove that there was a partial capacity despite what the language or the reasoning that the commission's decision states i think that the actual evidence itself shows that there was there was not a partial capacity and that he could return to this type of work now i think if you take that also you look at dr islanders now as far as maybe this guy's current functional status he doesn't need any more surgery there's no more physical therapy there's no brakes that's even need of you know this isn't some massive knee injury he even says that the long term he needs you know mrs either to talk about yes you're did he also say that earnings of the excuse me the impairment of the area i frankly think that's very speculative just because there is no specific reference i know that the actual decision itself states to set but she's making an assumption based upon what he would have started out making with expediter which was believe his minimum wage of some fifteen hours where he works that job for for four hours and quits and if you take a look at jim brady's deposition deposition of the the owner of expediter that's just the base that's the start he could easily move up he could move up in other positions there may not even be a differential what so ever come trial time we can actually find out that because he quit so soon so i think any allegation that there is an impairment of earnings is speculative at best because we we don't we don't have a job for him to work which in my opinion brings into their strategic decision the time trial to go fully ob la because there was in my opinion nothing really to base a wa very there's a speculative starting point with the expedited position and with the testimony is also clear there's evidence in the record that you easily move up and you buy different positions at the starting point and the last thing i want to touch on i think overall and i know that the wording in the decision is somewhat confusing based on you know some of the other medical evidence i presented the earnings i think it's well within reason based on some of the stuff that i touched as far as p f c some of his interactions with the expediter individuals the surveillance that was conducted couldn't just be that the arbitrary sauce with the commission didn't find him credible and they actually you know they did they believe that this guy could do more than eat more than he could i wish that the commission would have maybe have written more and been a little more descriptive as far as taking some of taking care of some of the inconsistency between what the wording in the decision versus you know what actually is the denial of the way different because i understand your you're in counsel's argument it nobody can return to work if you were really really stretch i guess you could you could understand where commissioner doffing was coming in and there could be established i think it's fabulous and i don't think the evidence actually correlates or or lends itself to establishing both and we are accepting that ok fine if you see this as a real job they have shown that he would be capable of earning three hundred dollars per week and that is the basis for our  to my earlier point i would dare say that this could also be looked at under a different standard of review given the fact that if you take all the facts as you see them all the findings of the commission the findings of what as true that and arguably the commission made an error in the law because they are without discretion to work or wage differential in those circumstances no