alice tyler's a point of view as to what influence did we draw from what you're saying none whatsoever i just want to let you know where i am on the case this mean we should pay any attention to the i don't know i'm experienced long for a practitioner i'm quite familiar with the that ninety six injury there was a finding of permanent partial disability correct right and that there's really no dispute about that none whatsoever i believe that's going to happen here was that was dollars to the thirteen twenty eight fifty one we merged he merged he merge them in the second reconsideration order and by merging them he essentially did away with that in found another average weekly reduced to whatever it is if it's sixteen seventy seven as the board eventually found to meet be made whole under the act mr everett should receive two thirds of the difference between the sixteen seventy seven and the for an unscheduled injury and if in the story it doesn't matter under these facts that there was a essentially an essential physical injury which we talked about that was you could see an m r i or an x ray that doesn't matter the time of the first injury and what ended up being his average weekly wage as held by the board if you were firm that at sixteen seventy seven seventy four he's entitled to choose there's a difference  becomes should a subsequent aggravation extinguish a prior permanent partial disability award and you've seen no cases cited to you where that has ever happened that's why we have current exception that says section ten a will apply if it can be a lie fairly and reasonably and it's not fair and reasonable to calculate different wage or new capacities based upon the same wages for purposes of different injuries this court in anderson held that when you have successive injuries it's the wage earning capacity at the time of the second injury becomes the average weekly wage for the the wage earning capacity following the first injury becomes the average weekly wage for the second entry and that's almost an exact quote from that  is fairly and reasonably accurate fairly in reasonably good terms wage earning capacity care if you look i would look at the date of maximum medical improvement up to the date of our injury which is thirty weeks that's the period that the l j looked at in the beginning of my stint the end and the reason why is because he tried to go back to his usual job following a marine terminals injury which was up as a stephen door and was unable to do that he tried to go back to working full time and was unable to do that and all case and i object to it because it wasn't an issue that was raised in either the petitions for review and that's the issue of whether or not people with the same wage l should be compensated differently depending upon how many claims they file basically the director takes the position that the maximum compensation rate would apply to someone who had a single catastrophic injury but not just somebody that had a series of minor injuries in the same way just last hour that issue was not raised in either of the stations for review it was raised in a footnote in the records free and i understand that it is the subject of an argument of another ninth circuit court of appeals case that was argued last october is pending and will no doubt be decided long before this case is ever decided so i don't think it should be reargued here but if it is i think that the outcome of that case is controlled by this course decision brady hamilton versus director or the andersen case which basically holds th r conference awards the maximum best of five by congress applies and if i have any other time i guess i'd reserve it for  first critical issue in this case is the aggravation rule and the last employer role relate to the success of injury concurrent awards regime i think the co is on solid ground and that they are two different situations and precisely as the judge presiding described where the first injury has already resulted in a disability the later injury that aggravates that or the further exposure to the causative condition of an occupational disease that worsens that disease and makes it more disabling does not under any reasonable principles wipe out the order to which the worker is and titled for the disability that already existed before that worsening the proper way to deal with that is with an award for the partial disability resulting from the earlier award and then another award concurrently with that one for the further loss of earning capacity that results from the further injury or the aggravation of  well it's a blatant mistake this simply looked at the wrong number they compared the average weekly wage but they determined what the nine hundred ninety seven injury with what the a l j had found to be the residual earning capacity for the ninety six injury looking at the same period essentially but analyzing those earnings differently and they've come up with this thirty hundred twenty nine dollars figure with the head the board compares sixteen fifty five that they came is the section ten average weekly wage for the ninety seven injury with that and so therefore there is no continuing loss of earning capacity while the appropriate comparison would be with the average weekly wage for the ninety six injury appeal the award the permanent partial disability award for the six months that the a l j put in effect they are defending the proposition that there was no continuing loss of earning capacity traceable to the ninety six injury after the ninety seven injury occurred they tell you that the record contains no substantial evidence no medical evidence showing that there was a continuing disability resulting from the absolutely they certainly can't even if there is has been a permanent that's that's right that's right if they even if there has been a formal award that requires them to continue paying that while they seek modification of it they're free to come in and say original decision having observed the meaner and heard the testimony of a most credible claim that i make the following findings and he says he reaches maximum medical improvement on march seventeenth ninety seven and not only did his actual wages go down his wage earning capacity went down even further quite claimant credibly testified before me that he was able to earn those wages only by working with extreme pain and with high do narcotic medications so even the thirteen twenty nine that the l t a found even the earnings of the claimant didn't have between the two injuries were inflated by the fact that he was working beyond majestic content there's no medical evidence to support such claim claimants of minutes and i agree that the taliban are this close record leads to the conclusion that claims low back problems were aggravated by the one nine hundred ninety six injury resulting in the demonstrated loss of wage earning capacity that's a page forty three of his decision then suddenly over a year after the here in the second decision on reconsideration of despite those evaluations of the credibility of the claimant and of the evidence before him he says borrowing as mr slagel has pointed out on brief borrowing four pages into his decision from marine terminals second motion for reconsideration with no is able to point to any evidence which establishes the claim and how the loss of wage earning capacity because of the one nine hundred ninety six injury marine terminals now these flatly contradictory findings cannot stand and i think the board just accepted that last one and made no attempt to reconcile it with the results of the original findings which was the continuing permanent partial disability  was trying to avoid a legal issue because he couldn't figure it out well this is not rocket science there is a propriety of continuing concurrent awards where there's been a loss of earning capacity and then there's a further loss of  capacity by a further injury down the road however with the clarification from the court that concurrent awards regime is not limited to cases where there's no way the second injury is not an the other question to which mr slike will has just averted that burden is the question of what effect that continuing permanent part of the stability award has on how much the award for the labor total disability is i know the issue was not fully briefed in this case when it was fully briefed and other case that's been argued however is just this question if the court were to hold that the section six be the maximum limitation of about one thousand dollars a week now eight hundred eighty five when this injury happened is and for the ninety six injury would benefit only stephen armed services of america but acting as somehow somehow as a credit against their eight hundred eighty five dollars a week liability the director thinks that's absolutely wrong that the employer should not be faced with a catastrophic loss for an individual injury as would be represented by having to pay more than that eight hundred eighty five thousand dollars a week there is no reason for it to same number as claimants average weekly wage figure under section ten a for the later entry that's certainly not what the case says and in fact implicit in the terms of the course re has been reduced from eight hundred to four hundred dollars a week by the first injury but then he works for ten years in a period of rising inflation and productivity ten years later he's going to be making eight hundred dollars a week again but that does not signify that there is no longer reduction earning capacity of everybody's wages of doubled his eight hundred dollars earnings before the first injury would now be sixteen hundred but for that injury if he's back up to eight hundred that does not indicate that he has recovered his earning capacity that he lost at the time of the first injury and the employer would not get a modification employee of the time of the first injury could not come in and get a modification by saying look he's making eight hundred same as he was making before our injury therefore there's no continuing loss of earning capacity and we should have a modification to get out of this no inflation adjustment is a recognized factor likewise if the claimant is for example expending extra effort working an extra ten hours a week to get back up to his previous earnings the earlier employer doesn't get the benefit of that extra work and get to say oh he's making what he was making before therefore there's no continuing lots of earning capacity so this is just a couple of the reasons why the average weekly wages at the later time are not equal to the wage earning capacity for purposes of comparison with the pretty first injury average weekly wage  beyond what he should have been well the later employer doesn't get to say yes you were making one thousand eight hundred dollars a week but you really should have been doing a lot of that work that you were doing and therefore we should only have to compensate you based on what you would have  earned if you would limit yourself to the work that was medically not kind contra indicated and let your employer still has to pay on the basis of what he was earning even if he shouldn't have been however the earlier employer can say look you are making mayor please support i'm raymond warrants representing marine terminals in this matter of the court should keep in mind that this is actually a three in three case beginning with one thousand nine hundred ninety four back injury at us to say at which time sr ever had the hernia eighty five of the first excerpts of record right what remained we did not and what remains that was from a prior decision this judge confused it quite a bit there were three decisions for the short term p p d a war against marine terminals that ended up in the last  the initial discrimination or they point to the one thousand nine hundred seventy s est injury which was the last injury we did not appeal the judge's short term p p deal board in the prior opinion because one we've already paid it criminal partial disability award against my client in the sense that so we did not appeal that finding it's just as simple as that and you know the court doesn't even need to get to the issue of whether or not the retirement of this injury had any disabling rol analysis that they've gotten into in this case where they're trying to attribute the mostly amount of disability compensation liability to a succession of injuries it results in overly complicated litigation and in the price  dollars and worked fifty two hours a week during the week for that year he or he will work fifty two hours that week before the ninety seven injury he worked fifty six hours a week for a he was making over two thousand dollars a week i would actually concur with the argument made by the claimant in his opening brief and in his other the six hundred dollar figure i think is wrong because it averaged a period of time where he took a month off the personal reasons what the court should keep in mind throughout this time is that mr everett was dealing with the cancer of his wife and she was client for a period of time and had a minor aggravation and that's that's been the issue from the beginning this is not a concurrent this is a building case because there was no prior disability award this is a as the judge held and t four discrimination where that's a saying or the injury with my with my clients when he ultimately has complaints of continuing pain it becomes a medical determination and actually the judge is a much stronger ground to rely only on contradicted medical evidence