the next argument is an appeal number zero five days thirty three fifty three sickler versus department of veterans affairs please please step forward and begin your argument leave without pay status that wasn't fact voluntary suspension that is correct and therefore she should have paid during that period and there was the involuntary suspension was veterans pardon me the administrative judge ruled essentially as a matter of law that her election to go on leave was voluntary on its face and had no contrary indication because her only other options were to resign or be fired she couldn't do or job and the therefore her choices were be removed for being a wall or refusing to do the job quicker job or go on leave and she went on leave on leave so if those were the three alternatives how can her going on leave be other than volunteer well it was her best option of three unattractive options so of course she chose the least an attractive option so her position is not an audiologist system her position to achieve was appointed is a nursing assistant the job that requires the heavy lifting of patience that's the precise thing she says she can't do that is correct so she can't perform the duties of the position to which he's appointed the only duties she can perform and was performing were to a different position so that your argument has to reduce to saying she has a legally obligated to continue to have her work as if she were a audiology assistant if we were to agree with the court's interpretation of what they really requires then very few people will actually be able to be accommodated and how i think that we had to look at how burdensome once or economically impossible for the department of veterans affairs to i'm sorry for the says in effect well i can't do that job because i can only do a limited duty and they say to her well if you know i do a limited duty you need some more documentation some more medical evidence to support that and if you can come up with some more of the medical evidence we'll see what we can do but in the example in the end of a we have no place that we can put you on a limited had found her fit for she never said she could do her job she said well i can do that job and i need to provide more information a medical condition and she did provide the condition she never said she could do the job from the beginning but didn't she  she never came back to work after she was changed from on april fourteenth two thousand and three until she had to report to the regular nursing duties she never came back she waited i mean fact the record shows that earth condition was  expected this to be permanent so she's in effect saying that she has a right to be reappointed to a different position one that didn't involve any lifting that is correct this what she was seeking but at the very least but she's not she's not just asking for chief saying she's legally entitled to be given it they must give it to  also don't go so fast what specific language in the contract gives her a right over and above the rehabilitation act rights their contract cites every goodish under code just repeats the same thing it doesn't change said that they could not accommodate that it was burdensome they explicitly said that they chose to deny such but to put that just means that we while the accommodated her and then they change their position and chose not to further accommodate her she's saying they don't have that choice they had to continue to accommodate me in just the same sort of fashion please good morning your good morning you said something in your reproduce very interesting you said that the board correctly found that there were no other positions available now what's the basis of saying the board correctly found no other positions were available what you mean by that the board probably determined that you did not know so interesting correct state there's a misunderstanding well i thought you said i thought what you said is quite different than what you're now saying that  the agency said we don't have any light work we don't have any alternatives for this lady and you said that the a j the administrative judge correctly so determined and i'm trying to figure out what's your basis of saying it was that the agency has no positions for her it's just a statement there's no nothing behind it it's a notation that based on records correct it would mean a notation a fact based on the record i don't know what that means it's a big hospital they got lots of other jobs they could give her and in fact had given her job and later gave her jobs that don't involve heavy lifting so therefore why wouldn't he look after her in the same fashion for the four months when she was on unpaid leave because in any given time there's not always late to do positions which are or billable within the v a hospital the nature of the business is it is a heavy work position it's difficult to do the work of a nursing assistant is she's cleared for duty by the department of labor and that's where we have agency action there's a conclusive finding which is she's given notice of february of two thousand and three that she's going to be returned to full time problem was earlier was totally resolved was totally a result and different as you can see her yes it was it was a dip she had different issues as of june of two thousand and three dr gross reports that she had injuries sustained in  notes that age twenty four twenty six and they told her what her appeal rights and by statute is no to the millions case cited in my brief by statute under five u s c section eighty one twenty eight b the department of said that i don't quite understand why the labor department determinations have to be treated like a court judgment you thought collaterally attacking the labor department findings and so forth i don't understand that i thought the labor department simply operates so workers compensation system for on the job injuries and as long as they continue pays the money in lieu of the salary that the employee would otherwise get and that whether somebody is able to do their job or not is this is necessarily turn on whether they are entitled to workers compensation payments is determined by the department of that let me wait let me let me try to ask you a hypothetical suppose that i have an injury laborer pays me the worker's compensation i recover from an injury i go back to work and the next day i fall down the steps and get all totally bashed up and can't do my job now when i present medical evidence to my supervisors that i can't do the job can they put me on leave it up on the grounds that while the labor department  already previously ruled you're able to go back to work obviously under a different set of facts certainly that situation be different so what's the difference here i thought the whole point was she had a new and different injury that arose after the says report notes when she comes back to the office on april seventh she thought i had understood maybe i'm totally wrong and understood that she had a new and different off the work site injury subsequent to the original two thousand and one injury on the job and it's two thousand and two aggravation on the job in that role there's only thing the only thing which i see from your records may be new and different reports stress stress related to the to august well then why doesn't the fall of the church support the idea that during the four months in which she was not paid she couldn't work because she had a new injury it could if there is a submission but as she is even a lead she never made a report to her supervisor requesting leave other than one request which was made so there's no communication evidence in the record because she and she acknowledges within her declaration that i only resulting from the fall of the church in april of zero three now that it's not in the record it's in the report notes of dr gross that she had some separate injury but that that's not that's not what she was claiming and that's not what she showed her supervisor when she came back in april of two thousand and three on april seventh and she showed them the notes of dr gross and the requests were tied to her original injury and she just coming back again and same i still have the same injury i've got plenty of medical documentation for you when why i say that's disingenuous is that it's attacking with the determination was by the term department of labor of labor under five u s c section eighty one twenty eight frivolous if we can't look at some text and see what the allegations precisely say well her additions as best i can see is that i had a right to come back to relate to this issue no no what did she file with what was the administrative judge reacting to when she made the finding that the allegations are frivolous she did what allegations was she a duty kid she the administrative judge she is looking for suspension or some type of involuntary action by the age minimum what had mystical or alleged in the paper she filed before the administrative judge she alleged that i want to be on paid leave i want to be some administrative leave or something and she also acknowledges in her declaration that she did file there is a at the time she goes on leave one leave she record in her declaration  no records were submitted to the agency three months into the case but all