unless the court asked me to i do want to point to the evidence since that's the only thing that really matters here there are other than the petitioner himself there are four primary actors involved in terms of testimonial evidence there's also a functional capacity of valuation so we have the two doctors involved which are dr taylor and dr merck and now we have two vocational groups one is steve dolan retained by petition genex corporation came by the responded to begin with the few things i do want to clarify in response to something counsel mentioned in his in their brief excuse me about the evidence in suggesting that for instance there is evidence that's not in fact evidence in the record which in fact it is and i actually have that evidence right here to show the court if they choose to look at it one of which is we took the position that gen x the responded to vocational expert that placed in its reports that the claimant mr peter maher was unable or unlikely to return to the same job that is in the record at se unlikely or unable to return to the same jobs at the very bottom of the page earlier and have report basic just that there was a possibility that with my can return construction management or other white jobs but the failure where the original fusion was l three to s one and he said in his nd deposition it's more likely than not that at some point the above and below the fusion are going to fail and then orthopedic surgeon who's actually testified this gentleman will never go back to work he said in his last deposition he'll never live he should never with more than twenty pounds and should never do anything that makes them uncomfortable and that his next fusion would be morbid highly morbid and life altering is what he said he said he can't climb bend stoop either all this is a man who's done construction for thirty five years and the issue of whether these conditions are related to this  who testified in his cross examination there he said the quote is if you didn't have to lift more than forty pounds that i think yes he said if i can demand work but he admitted on cross examination that isn't construction in there that confirms at the zisha so both physicians say he's knocked out of construction which has been his lifelong thirty five y past data print pursuing his usual and customary employment so both doctors have testified taylor he absolutely will never go back to any job and work and says well and if you know if you've been in copper i've been into us thirty one years you know peter murkiness and even more concerned with hill never really go back to construction so have we met the prime the facia case in terms of the evidence from the doctors absolutely we have the f c e says light duty only has he been mapped out of that only career he's ever had but clearly he has and there's no basis for the commission to have said well we think he hasn't been knocked out of that job there's all the evidence says he has been knocked out of the job so then you look at the vocational experts oh by the way i've left out in addition to dr taylor what the court to remember this gentleman lives in central illinois he travelled to st louis from a tobar of two thousand nine  to the extent that they've done the pain medications so he's actually put on forty five tablets a day for life so imagine trying to do any kind of any kind of job where you're taking a pain medication of that severity four or five times a basis for rejecting the ob la or for determining what it did no evidentiary absolutely positively not the evidences he snapped out of construction se ended and then we get to steve interviewed the petitioner on multiple occasions by the way he was also mr dollar was director of the state division of locational rehabilitation and he also splits his time five thousand and fifty for petitioners response he says the gentleman is absolutely our employ he's had a wonderful work ethic his entire career up until this injury thirty five years in construction no transferable skill set yes yes are you quoting dolan now yes because this is so when you talk transferable skill set because you know how to work a cash register no does he know how to mork a scanner know that he doesn't know how to anything other than construction the interest no use burger in this case burger i have here but but but burger king labor survey demonstrated to her that there was a market for positions within the claimant's restrictions she disagreed with dolan and claimant could not tolerate a regular full day work day like the never find anyone to deprogram totally safe ever ever i don't know how you keep any credibility to a person who says look i only work for respondants and i'll never fight it doesn't matter what you tell me  short he's going to be employable oh i understand your argument but isn't it up to commission to determine the credibility of the witnesses the weight to be given to the evidence we don't substitute our judgment doing well of course you know we've actually you and i've actually had s conversation before and blackman case and i didn't mean any disrespect then and i don't now i think you do actually that is the reason we're allowed to be here you're allowed to say well i we don't find that person to be credible you have that situation they brought in a public person at the last minute a week before the trial and the appellate court said no that's a scam that was brought in sully for the purpose and yet the commission found them credible and this court said no we're not going to do that that capable of like duty she disregards the opinion of dot of the medical doctors who talk about what her his restrictions are you know i understand the quite a quarter saying is that there's a distinction between her foundation and credibility but to counsel brought up the biggest issue on appeal raised by the titian or is whether the commission awarded fifty percent men as a whole is correct just argues he's entitled to either print total disability award or a wage differential  taylor indicated on this form that petitioner was permanent totally disabled either way dr taylor's opinion on employability has no way st of all he's not occasional expert secondly dr taylor admitted his opinion on november of two thousand and twelve when petitioner was allowed to return to work with light duty restrictions concerning petitioner's physical capabilities he had an f c an october th two thousand and twelve therapist noted sister did not put forth a ballot for that said that there is no sister could work at minimum in the light duty capacity for a full eight hour work day five days a week therefore petitioner did not establish she was medically unable to work as noted in professional transportation verse illinois workers compensation commission case and employer generally fulfills the burden of establishing that he or she falls into the black category one of two ways one by showing a diligent and successful search for employment or two by demonstrating that because of age training and education experience in condition there are no available jobs for a person of his or her circumstance i would like to point out that just as brief is indicated that  considering this issue one needs to recall petition was employed as a construction construction manager part of his work accident after be in place to m i in approx twenty one months he found a job as a construction construction manager for a friend's home from total or further more just as a point in history as a construction manager and his ability to work at least light duty would not support that there are no pause for a person in his circumstance so one of the things i would like to clarify is that mr short  indicated that he has no apology experience that's actually not true he has he has an associates degree refrigeration an air conditioning and a collar certificate in construction management b down to is just or has an excellent transferable skills his training and experience using word and excel is supervisory and customer service skills all these factors together work in fisher's favor in finding gainful employment also in addition to that didn't  expert in the case both noted that he did not provide them with any job search logs to either one of them just in case it might have been missed by anyone and one of these things to some people matters some it doesn't but i was involved in this actual trial so this is new kind of going through all this these facts but it was noted that miss late that had retired and that's where but of from her thousand and eleven and he worked st right on this home construction project from march of two thousand and eleven through september of two thousand and twelve he provided no pay stubs at the hearing or no documentation to support this testimon construction manager does not include manual labor on the construction from there's going to certain activities that he may not do the whole d entire portion of his job anymore but that's part of my job but that doesn't mean i still can't be a lawyer just like work for him so there might have been minutes there might have been physical portions of his job but he could still do his other job jobs places where is there any if any where is there any any discussion or construction management in the labor force or the availability of positions in the labor force construction that would allow him to be more available to construction management jobs that are out there and that was found  you know she's got the certificate why are they looking at these other jobs and i really can't answer why they have these other jobs listed i believe that might have been and event one would say that he can't do this job then they they must look at other jobs but i  don't know how to really speak to that outside of he's got a construction management certificate like you indicated which would mean for my standpoint that he is not precluded from returning to work in his usual and customary line of differential award but the record in this case contains no evidence from which the amount of money such a ward to be determined st of all that was clearly a stipulation was or not as to what to do claimants annual gross income once in the projected average range of the diminished amount that he would be able to earn some suitable employment so why would we uphold the denial of the wage differential because either by the commission don't seem to be accurate  terms of your st part that there was a stipulation as to what his every weekly wage rate was at the time of x and there are that is correct now on the nd prong i have not aware of a stipulation that you're suggesting that  but just go to the final part those is i believe that the we could all agree that the workers compensation act as a remedial statute is not there to create a windfall for petitioner here you know i don't believe we have a full valid effort in the f  did that for over for a few months this is a question or an issue that could be presented by opposing counsel as well you know this is not right or continuous the very nature of a job in the construction is to go from job to job twelve or two thousand and eleven and tell september of two thousand and twelve he's applied for social security disability and applies they received that at the end of two thousand and twelve he testified he did not look for any other sharp turn your mike on please i apologize thank you i'll try to be brief i think you discussed many of the things that i was going to bring up in reference to miss burger she testified that most of the jobs that she found for him were in the nine to ten dollar hour range and she never actually offered him those jobs or even told him about the jobs a lot of cases of once titian has established the prime fish a case that he can't return to that job is the responses burden to prove he is employable they never found him a job mr mr styles talked about this construction mantra he found that to a friend and even five thousand dollars in the year and a half that is not regular continuous employment if they think he was capable of doing construction management it's a burden falls on them to show that there's a job for him he can apply for does he doesn't get it that's a question but they did not meet their burden they brought this lady in and she said it best the best you've got your high and give them the benefit of the doubt at ten dollars an hour he's got what he earns and he also works and it's important a court recognizes this when counsel is talking about the the the variable nature of construction jobs this was his family he worked for he worked for his family for thirty five years it wasn't up and down up and down if you look at the surveillance video you'll see which shows him us find a job they did the opposite they laid in wait they have this list of this labor market survey and all these thoughts they don't relay them to him and then they show up at trial and say i think he's able to work no matter what well if the court wants to accept that he's capable of