four point five hours should have been included one of the whys and so on who were because in this particular instance there is evidence that from the only witness to testify with regard to the availability of overtime that overtime was not going to be available with enough about a four week period after that there is a trial if you look at the evidence that was submitted by the titian or petitioners exhibit number five it was a scheduling matrix that showed that for the week of may what the the combined shift and best consistent with the whole testify that he received a mandate from the from management to reduce the overtime was one of your available and the point of all this is that it's also consistent with his then introduced into evidence which you can look at is evidence between may of two thousand and eight and september thirtieth of two thousand and eight when the case was tried and what you can see from that is this isn't some some hypothetical statement that we're going to reduced over time the fact the matter is you haven't really shows that that over time was in the process of being reduced and in fact had been reduced to the point that there were only two people that were covering the overtime shift at the time that the case was tried so i thought the station i would make would be and  reason i think the commission's decision was in error here was because you have evidence and the only evidence that you have is that that over time is not going to be available and that therefore based on that the commission's award of that four point five eight hours of extra overtime and the crucial point in time is you know where are we at the time of the trial and at the time of the trial here and in your case we know what he is making we also know that in three weeks time in your hypothetical that there's going  if that if the situation here was that we know that he would work forty hours a week there were seven s that he would work the overtime there was no evidence that the overtime was being reduced or was going to  four weeks the overtime was going to be eliminated and across the board based on what based on the mandate that he had been given from management and also based on the historical trend of that show over time it was available petitioners exhibit number five from may to september the first and then the difference between september the first and the hearing date what hall said now i've only got two people doing covering this over time whereas before i had twelve i had i had six hard fast rule and i think you have to look at the evidence that you're presented and in this case the only evidence that the commission had was testimony from a management employed and evidence of the submitted by the petitioner that showed that the put the management employed was saying about the way the overtime testimony the self serving and if that were the case of holes only reason to testify was to was self serving you know he certainly could have testified that mr pullman would have had any overtime available to him between march of two thousand and eight actually taken out of context and ignored explain why that's the case because i want to ask the question after mr hall had testified on direct examination regarding the elimination of over time and the point of my question was is there a way because the  going to be i knew that there was four point five hours of overtime that the petitioner wanted to have rolled into the eighty one calculation and my whole point in asking question was you can't say that there's ever going to be any overtime available to him and that's the response  of this not right or you know you know what i'm asking your honor is is is to look at the evidence that was presented and the evidence presented was that this overtime is not going to be available if there was no evidence that over time was being a lemonade either by virtue of tell if it was mandatory or not in our case the evidence from mr hall is that if you're the senior employee and you want to take the overtime pat if you don't want to take it you don't have to and it it's over what gets mandatory on somebody because somebody is going to end you but if you're a senior boy you don't have to take it we don't have any evidence of where mr coleman fell in terms of the seniority roster of adjusters who might might take the overtime or might not take it and it's really a clear effect it's totally unclear from the evidence as to whether that four point five eight hours of overtime that's been included in the eighty one calculation constitutes over time that was the mandatory or whether it's overtime that would be voluntary afforded adjuster to say that's not what mr hole said if you refer to per page thirty five of the transcript question is it fair to state from that from this point forward is it fair to say that there will be adjusters too that will be surely working at least four point five eight hours of overtime a week answer there will be a gesture to judge question and whether or not mr portman would have that opportunity he may or may not have it just depends on seniority and whether or not the senior people want to bet over time zack wrecked answer that's correct so mr rove did not testified that there will be no overtime for adjusters for weeks after the hearing the facts of this case are very simple if it is not indicated whether or not it's mandatory or voluntary however justice you refer to section or to section ten of the gack and section ten of the yak does apply in this case and section ten to be in case it says that it says that overtime has to be included if it's mandatory or if it's regular let's look in this case was it regular overtime one year before the accident he worked at least four point five eight hours of overtime a week six months before the hearing he would have work at least four point five eight hours of overtime a week it can be inferred that from the date of this guy's accident until he found suitable mandatory regularly working overtime to the date of the accident under section well i think you have to look at what he made before the date of accident after the date of accident and that gives the commission an idea how much overtime this guy would be working and in this scenario we have proven that from december of zero four through september of zero eight earned in the fifty two weeks prior to the date of the accident and you will note that in that fifty two week period gentleman worked three thousand nine hundred ninety six dollars eighty eight cents he earned in straight time over time in that fifty one week period actually you'll note that his straight  straight time earnings in that fifty one week period are thirty thousand nine hundred sixty dollars if you divide that by fifty one that means that his average weekly wage of that fifty one week period was six o seven point zero seven a week if you divide that figure by forty hours a week that shows that on the average of one year prior to the date of the accident this guy made on the average fifteen dollars and eighteen cents a week getting back to what i said previously if you take the thirty nine ninety six point eight eight in straight time over time earnings that he made in the one year prior to the date of the accident and you divide that by fifteen dollars an eighteen cents an hour that would indicate that in that one year period just the sole bridge he worked an average of five point one six hours a week in the one year proceeded to the date of i'm sorry if the mandatory regular i mean it under your theory won't overtime would be included he's the only thing you're doing is taking his regular time buses overtime and dividing it by fifty to one seeing averaging x number because we have proven that in a period of three years and eight months tamely from december of zero four through september of zero eight this guy would have worked at least four point five eight hours of overtime a week no he would have averaged four point five eight hours of overtime a week it didn't prove that he regularly work four point five eight hours move them and that's entirely different if he could have worked twenty hours and walked in one week and nothing in the next three if if if he could have all the volunteer if we approved that he has work at least four point five eight hours of overtime a week for a period of three years and eight months on simple to ten weeks he's in the first five of those weeks a person who works sixty hours and in the last five of those weeks he works forty hours on your computation you're going to turn around in say he encouraged his heart what fifty hours a week when he didn't regularly work fifty hours a week did well if you look at the pay records showing the pay that he received and the overtime he worked in the one year preceding to the date of the accident you're going to see that he work overtime almost every week how else are you going to be able to come up with a figure other than average  suitable employment in march of zero eight up through the date of hearing september thirtieth but wait my client would have worked at least four point five eight hours of overtime per week on the  overtime hours i said that he would work saturdays in the future and his supervisor acknowledge that he work saturdays when scheduled and that on a yearly basis claim it would probably work more than forty hours a week in that case they said that the overtime hours would be used in the computation of the eighty to award in this case the evidence is much stronger evidence is that for a period of three years and eight the schedules with reference to the twelve hour shifts fairly well represent the amount of hours that an adjuster to have the art work since may the current date and holes response is no they don't because the current day there's only two individuals that's working twelve hour shifts at present time today and by the next four weeks there will be no individuals working twelve hour shifts in that area and then over on page twenty that the same sort of dialogue takes place when mr has been questioned again by the tears attorney or he's asked mr hardman in about four weeks so it's no longer going to be th