this case is before the court of appeal from the only workers compensation commission the commission as a creature of statute has no inherent power only the powers vested in by statute and the obligation to implement the statute section eighty one has language associated with the necessity for that award his first showing of the usual and customary lines if the employee has lost their line of employment labor day time even location or they require i think they are the part that is the legislature legislative intent is that it was a broader scope on line of employment not a specific single  carpentry and then was limited to a lower wage that could be his usual type of employment but workers compensation under this scheme of compensation wage per minute totals are the highest amount o testify the man was permitted to say that required testimony of a vocational expert similarly in order to see if someone has lost his usual and customary line of employment as in this case this woman who worked in the retail industry would have to be vocational testimony and she was precluded from her time to work in the retail industry no doctor said that no folk person said that my vocational expert did indicate that she could return to work at wages  wages of thirty eight thousand when the supreme court interpreted the wage differential statute and cast as transportation if denied to respond it's request for periodic refuse in changes wage differential but the supreme court used language in chaos and indicating that it was required of the commission like a jury or like a judge to look at the patella view of circumstances as to how this impacted them or a broader view not a snapshot of the person single job that they had on one day broader view as to how this impact that the person in the whole the wage differential provisions contained specific language to look what is the highest and best earnings person asking for expert testimony as to what other suitable work would be in this instance the woman did not return to retail sales something that she had done for over a period of a decade she did not look for jobs and retail sales and she indicated when she felt that her applications that because she wanted to be home with her kids and have a more set schedule she wanted to work in an office setting and was a personal choice in terms of pay that position that she took and the job she took her usual and customary line of employment was the retail industry now council and judge hoffman i think was getting to it is is that set in stone that someone half the be a carpenter is someone have to do this and it's not set in stone because the first assist they say the woman was a operative operating room nurse and typically operating room nurses earn forty five dollars per hour it was a more specialized customary line of employment and why why would that rationale apply here are you saying that all of a tail store manager positions require the same physical capabilities a it but there was expert testimony in the first case two different experts testified to the unique nature of the operating room nurse versus a nurse in a doctor's office in this case there is absolutely no commission because i indicate that petitioners have a duty to mitigate their damages arbitrators the commissioners tell me it's not written in the statue but doesn't have to be written in the statute because it goes back beyond common law it goes back the parables in the bible about the unproductive fruit tree and the king with ten thousand soldiers facing an army of twenty thousand dollars naturally he would sue for peace on good terms and we thought we'd get back into the fruit tree can i ask you this here we've got the restrictions from reef in watson then setting the limitations of twenty to twenty five pounds a no more than fifteen recommended by dr watson so it isn't that to be considered there that would be considered in a situation if a petitioner had either a wage differential pay should be measured the same way as a permanent total because of the enormity of the recovery to petition or should exhaust be different and exhaustive search or jabs and their normal line of work occasion they were both patient efforts this issue might have been decided i might not be standing here if he there she had exhausted her search or if she had petitioned the commission to force me to pay for her search to prove that she could no longer be in the customary line of i believe that even though it hasn't been reached before plane reading of a statute in mandating the commission to apply the language of the statute which clearly if the legislature had only intended a snapshot of the employment under the act the arbitrator found that my client demonstrated a partial incapacity from pursuing her usual and customary line of employment by the fact that she lost her job i don't think there's any better proof that she's partially incapacitated than the fact that your employer would not take her back to work at her current employment because of the restrictions are imposed upon her by her injury that in itself is proof partially passed from pursuing her usual customary line of available to her than her the job that she is accepted because of very few of those jobs were actually available to her some of them were not available due to her restrictions many of them were not hiring  i based on my review of all those jobs i think there is only one that was available within her geographic area and i think the arbitrator commission correctly ruled out that jobs are more than ninety miles away from her home and that was too far commute to be reasonable of a reasonably available to her  barred from because of her restrictions and i think she presumably assumed look instead of requiring a lot of those jobs which he's expanding out in other areas looking for some kind of employment that she returned standard against manifest w ever she didn't do that in this case her job search over three and a half months by my count was fifteen applications on the internet only one of them involve sales in that other month so they all