suggesting that the arbitrator and therefore the commission did not pay as much attention to detail as they should have in their decision the decision indicated that the further be maybe not a big difference but it is something there also there's no indication that there was a diagnosis as of ten twenty three zero seven when dr smith read the original chest x ray films that  in the decision that i can see it's inconsistent with the dates that are in that decision and if further there is no indication really of when the mr goodson might have known better he was diagnosed with anything here is this was not a treating medical situation now what we have here is as of august thirty one of two thousand and six mr goodson had put in thirty three years of coal mine employment decided that was it he specifically testified that he told the doctor's wife bought it and told his wife had enough you people for it quits is that your theory now wait no no no i'm not saying he would not be entitled to anything what i'm saying is based on the facts in this case he's not entitled to a wage to forget something like this my question that's why that i'm sorry  answer in order to be intended to wage differential your theory is he must be diagnosed before he leaves is that correct it's not that simple your honor what i'm saying here is when this guy was diagnosed he was not working as a coal miner i understand that so on their sword question are you saying he must be diagnosed when he's still working as a coal miner they're insured you know there's more to and he didn't do it right why not since he can't bear to work from home and he was working as a coal miner when they made the diagnosis that's a while off the question is who's working as a coal miner when he had see the pain but he wasn't diagnosed with it so why i think it's dust in case that this court said there's no wage differential they indicated the reasoning was there was a reason for leaving coal mine employment or retiring was not based on any condition no doctor said that he couldn't do his job as a coal miner due to respiratory problems no medical treatment for a breathing problem was shown while he was working as a coal miner no doctor said he should retire or seek other employment for any medical reasons and the medical examination which established the diagnosis of a work related lung disease took place a long time after over a year after he last worked as a job he has to have the diagnosis that's my point here how can he feel that he can't do this job because he would put himself at risk for his condition getting worse if he doesn't even have the diagnosis that makes no sense somebody in that it might really hard problem if you leave because you have three well if he can't breathe if his condition is so bad that he can't breathe why didn't he go see a doctor why don't we have medical records and evidence but he didn't testify that he couldn't breathe he said he had enough of the job there's no evidence that he couldn't do his job at the time he left plays are serious there's no evidence pacer right i think i think this case is pretty much on point with these factors in boston that i just went through it's the same as this when they found it next case there was no reduction in earnings therefore no eighty one case the court found specifically that the claimant failed to prove that but for the injuries he would have been in full performance of his whole mind job duties and that's what we have here mr goodson of course was not and could not have been in performance of his own mind d ies because he'd already retired from those duties and got another job he should never showed any interest in getting any job as a coal miner after he left monterey on a thirty one zero six there's no indication that he tried to get back to work for monterey there's no indication he went didn't try to go to work for any other full company much less a better than the other pole company in the area that he could have gotten a job with and there's no indication that he want to do anything except work in the hardware store where he got a job shortly after he stopped working as a it was done as a if you go through and i won't go into all the details he testified for at least a page about hey there was this i talk to my wife as i already said and i just i had enough that was it i didn't want to be a coal miner anymore it's what you take out of his testimony here so he didn't want to be a coal miner you know this is to find that he was having breathing problems for seventy eight years before he left  mine you say that yes he did he say that he was a continuous mine operator with one of the prettiest and thus the job if you can get in the mine yes if you put on another witness to verify there got to the point where he did not want to could not do that job anymore it just affected him he had enough time many just wanted to get away from it he testified that he would was taking a physical toll on him because he was coughing up oil stuff and that the substance was coming out of his nose he said the dust and everything he felt like it was taking a toll on him he knew he had a lot of coughing up black stuff blowing his nose black all the time he decided to end his career as a coal miner a few weeks before he talked to his wife and told her he had had enough again there's no evidence here fireplace at home it is a progressive disease but the point is that he did know he had it it didn't preclude him no diagnosis as of eight thirty one zero six preclude him from further coal mine employment he quit himself he quit himself there was no diagnosis mr mueller if i quit because i believe that i may have been reading problems and  can't get he well your position yes well in general i mean this but i like to look at this case and this is about as we show our viewers but this guy left his job as a coal miner not because of anything any doctor said not because of it because of any diagnosis he left on his own after talking it over with his wife and then later a year later in his tenure like there's evidence in the record this medium left on my knee because he couldn't breathe at the time he left the mine he never said he couldn't do the job and no doctor said that either that's the point here he may have said he had breathing problems but he never said they impaired his ability to do his job as a homeowner never did he say that you know told us the came up nothing happened he took the job at the hardware store and never looked back at home why he did not want to be a coal miner so i don't think there should be a wage differential situation here where this guy never had any intention of going back to being an old miner to me it's like speculation it's saying well if you wanted to then he would be entitled to a wage differential that's not the case here plus we don't have any evidence that there is a whole mind job that he could go back to even if he wanted to get paid what this decision says he should be he would be making not to mention the problems with the years before the twenty twenty dollars for one five cents it wasn't the same in years before i don't think the wage differentials been proved in this case and i think based on that based on the dawson case it's against  monterey's got this problem with the chronology but in medicine and the law that's just the way it is some things always common second the rest always come to after the crimean parser relational is comes after the arrest the diagnosis come after the disease the disease always comes after the symptoms the patient goes the doctor after he thinks he's got a problem and it's always the job of the commission to reconstruct particularly with a disease that you know it's not a broken bone friendship it did that's why we brought it up and we specifically brought that place case because it was clean that's all they had was yesterday diagnosed the question was is that medical contraindication further exposure is that sufficient to walk functional impairment that must come along to see that we never thought about it didn't come up that was not evidence there was no functional parent discussion in that case the p s t s were normal and petitioners o gupta said he only has mile charge of breath not even more than i would expect but the most important and he was capable of heavy manually all is different than his case in which manifest when you and you're in the same position here you have a decision from the commission and are you going to permit or not you did affirmed awesome i'm asking that you're from this even though the outcomes were different but they were different for good reason you know when i i heard you talking earlier when mr muller's up here and i'm thinking about what a wage differential means and when a person comes to the office or when we're looking at the records and we're deciding he's just going to be a wage different are some things we look at first thing is was this man precluded from his last job and now after dawson i want some physical preclusion not just a medical contraindication mexted to get a new job better and less next was that new job appropriate for him and then are you able to prove what he is earning or what he's able to earn now then after that's done we have to say is this a great case medically is this case going to stand scrutiny it's going to get and in doing that we think is there treat or help or is this just two experts coming it out and then we look at the companies doctor if the companies doctor give us some day like to run to when to pass all those hurdles we know we've got a potential wage differential and that's exactly what we have in this case the commission decided in this citations was interesting first the dawson case he's got nothing to do with this it's completely different and second one was the old ben case it cited all then and what i liked the purpose of a wage differential is to make sure mr goodson in this case anybody else doesn't lose any money because of an occupational disease or injury and my position here of course is that mr goods because you've already whacked coalmining and taken the job in the hardware store was making less money he didn't lose his job in the hardware store obviously to make less money working in the hardware store after the diagnosis came  i'm not going to go through everything in the dawson case again but i still want to point out the similarities between that case in this case i know all the the big differences in that case the commission ruled in favor of the coal company as opposed to this case but when the facts are the same the result should be the same the commission made a mistake in this case their decision it's against the manifest weight of the evidence and that's why it should be reversed and he should remanded to one other thing i want to add before i get out of here is i don't think in terms of the the actual wages that he could be earning that the claimant med is burden of i pointed that out in my brief but the evidence shows that he obviously got more money every year from a certain point up till the point of the year in which we tried the case but that leaves years before that  don't know how much it was make and as i said before a given how many ever years of benefits seven years let's say based upon a wage that was in twenty fourteen when we know what it was before that it was less makes no sense an opposite conclusion to me is clearly apparent there that you need to take those other wage amounts into consideration thank you