our contention that factual determinations including the extent of wage wage differential ward the amount and the duration is within the province of the commission i think that the circuit court improperly determinations including calculations wage differentials are within the province in the commission and therefore this case should be considered as a manifest weight of the evidence case unlike my opponent who has  both parties should be providing evidence of wrong term earning capacity and i think that both parties have that opportunity and i think it's a commission band with their discretion over to me and we render decision based upon all of the evidence and that's my point of contention with the circuit court is that bit because mission ultimately is the decider of these issues and they did decide these issues capacity of his job at the time of injury and the average earnings that he could or might be able to earn in some job that is within his  the commissioner said that's not what you're supposed to do you supposed to calculate the weeds differential based upon what ears are at the time of the accident versus what he ts case in us interpret in the castles case without the benefit of a case on this particular issue has left me somewhat guessing i do give a lot of deference to the supreme court saying that logic the evidence of long term earning capacity needs to be presented at the time of arbitration i think that was done in this particular case i also agree with the commission though that on the hundreds of thousands of cases where there have been wage differentials awarded there is not one case that is consistent with what this arbitrator has done and i think for good reason i think that based upon all of these cases where the commission has refused to speculate go beyond what they feel is convincing at the top the gate of hearing is w go so far to then say the commission should extrapolate wage differentials over eight ten twelve how many years into the future i think that was a mistake and i think the circuit court ultimately  that that was what was supposed to be done in addition to that the question of rauf i mean if i wanted it we did the the court does agree that the circuit court should be reversed i ultimately agree with that in the alternative if we are looking at the facts i think that this should be remanded to the commission for specific findings on the issues of the respondents united airlines is expert with respect to her opinions as to wrong turnings the passage i don't think it was specifically decided if we are all timid we saying bad they have the ultimate ability to make these inferences on a big issue and the decision is correct that we don't get to this but if we disagreed that they don't have the discretion to ultimately decide the big issues the big conclusions then i think it's appropriate that they should also be making those determinations on the right is this gentleman is wrong time earning capacity what is the trustworthiness of her testimony about future earning capacity what is the the a fact of the overtime which the castle's k should be determined and they provided no evidence about the overtime specifically saying  we have provided to me a conclusion about long term earning capacity in violation of castings which says overtime should be included so in the event of this course i'm sorry in event that this court does find that the circuit court was correct i asked if you do remanded to the commission with specific findings to make those findings and to me to have this to be consistent and you know as an aside i think that the oath to that effect of this decision is against the spirit of the act the spirit of the act again is for the financial security of the injured worker and that in this case and this decision i do not believe that this ultimately follows the spirit of the act this creates a situation where he's a a temporary wage differential that stops i don't think there's any case where this is ever occurred before and then he has no added compensation he's locked into a wage rate that was set by the bankruptcy court while all of his other please the court timothy mcnally on behalf of united airlines i've read the commission decision here probably no less than one hundred times and no matter how many times i read it it doesn't take terribly long as just a paragraph but used the term long term earning capacity so i would take that to mean post hearing earning capacity and since we only have one opportunity in this case the initial hearing united was following the caissons court to russia and i think one say you only have  eighty or ninety eight i think the case was is fairly well settled now that i have to be able to show a change in physical disability as opposed to economic disability to be successful in the community this case goes to the two pronged wage differential test of the courts who have really commission's function under caissons particularly clear mr young was set for a raise nine days after the hearing mr cooney testified on march tenth two thousand and ten that ninety days later on march fifteenth he would be receiving a raise i believe was from ten sixty one per hour to eleven zero seven zero mr young in his testimony agreed on the amount and he agreed on the date so if we think about that at us we have complete agreement on the date the raid is going to occur nine days after here and we have complete agreement on the amount the caissons court has told us they need the one case because we cannot come back in after section one under section one thousand x or any other section of the act that this is  wage differential like the circuit court did here were they consider all that evidence in determining what the weight differential should be at the time of the commission decision i think it depends on the evidence in a certain case and in this case the evidence does show i mean it it clear that he was a ram serviceman before the accident he was at the top of the scale for that position because he was at the top of the scale his wages would only be expected to rise modestly in the future after the accident he's employed as a station's operations representative but he starts at the bottom of the scale so his wages are expected to rise much more quickly until he reaches the top of the scale for that position so that the award in this case it doesn't make sense for it to be a graduated wage d more as an s l r than he would have had he remained in room service so i don't think it has to be calculated on a graduated scale in every case but if the evidence supports it i believe the caissons court has told us that this evidence is is proper and the commission can project a wage differential in the future of the council in attacking the commission's decision brings up many points about what if there's a bankruptcy in the future what if there's a merger in the future what if there's a renegotiation how could this affect the ways of approaching all males and i think it fails to consider two very important points first there seems to be an assumption that anything that happens in the future to mr young will happens mr young cannot come back again and something negative happens chasms has told us that the legislature has not currently authorized infinite opportunities to correct these awards so even though we normal he's getting a raise in nine days in one year in three years and five years and eight years we can't come back to the commission the legislature has not permitted us to come back to the commission so the initial hearing is all we have to present this evidence second this  if anything does change in the future based on this course of dealing that the wage differential analysis will remain the same in this case that the differences in pay it will be equal for both groups and this has been constant since one thousand nine hundred nine and we think about that this airline has gone through a is the most speculative all he wants us to say despite the two collective bargaining agreements despite the testimony of misquoting despite this course of dealing by the union we should assume that his ways differential would be stagnant as it was on the date of hearing for the remainder of time so despite the fact that we know this is going up in nine days and five years and eight years we should just assume that his wage differential remain the same as it was of the date of hearing until the end of his natural life i think best the most spec of the position of all a quick word on the issue of over time mr young has contended that his earning should actually be increased based on overtime if you look at the evidence on overtime mr yon stated at that hearing that as a room service mean he worked approximately forty four hours a week and as an s l r he worked approximately forty hours a week now he only testified about mandatory overtime he didn't mention whether voluntary was available but he also entered wage records from two thousand to two thousand and three and two thousand and four in the us in the period right before the injury if we look at this if we look at these documents they show that there was no regularity of earning capacity of these documents conflicted directly with his testimony they show that in the three years prior to the accident he only worked overtime during eighteen pay periods the majority of pay period you can work any overtime really i think under caissons always differential can be calculated past the date of hearing the cases courts specifically spoke of a long term earning capacity that would be imposed hearing earning capacity if the evidence in this case does not permit  some cases might stand for the proposition that there's a subtle word based on this future earning capacity but in this case i think the evidence does dan for the fact that there's going to be an impairment earning capacity and it is going to shrink based on the court to party agreement for eight years i think does that's i don't concede the point that the the act forecasts and do not come do not permit a graduated to work when we do have evidence in this case where he is going to get a raise nine days later where he's going to get a raise is able to turn in some suitable employment or business after the axe and so i presume we could have a case where there is evidence as one of the cases discussed earlier where he could be working in machinery or there or there is a vocational have mostly backchannel responses to councils argument first he talked about how in this case it's unique because these two bargaining units in the event that they would get raises in the future that historically those races would stay in a pattern and so therefore this particular gentleman mr young he would be the beneficiary of these future raises from these future collective bargaining agreements that's entirely incorrect page six of councils refills that from two thousand and nine and twenty twenty their projections will be that he has already hit his maximum rate in the ramp service the pre injury job he will be getting a one penny per year raise despite every other every other workers raise from not only the next collective bargaining agreement the one after that there is no modest increases because he's a ready at the max rate for the ramp service so really his pre injury wages are not moving up as his post injury raises are moving up he stopped here this one's moving up that's why it's going to catch up pathetically in twenty eight that's not going to happen for any other worker because they are going to get if the maximum rate in ramp service increases they are going to be at a higher rate he has some dock at the bankruptcy set maximum wage rate for ramp service in this case decision pursuant to the arbitrator and that is really what is going on in terms of i not criticize writing the commission's inability to project a wage differential in the light of bankruptcy or in the light of the merger that particular cross examination of miss committee showed how speculative her opinion was it is my contention that she gave the court history of what occurred but for the bankruptcy it was apparent in dealings and yes there was a pattern and it ended at the bankruptcy so the contract the collective bargaining agreement before the arbitrator was with wages set by the bankruptcy court and it was a collective bargaining agreement behead already expired and was a ready subject to renegotiation and she had no clue as to what was on the table she did not take part or wasn't part of that bargaining team and the arbitrator said no this is buying all of that despite the potential merger despite the bankruptcy setting the wages she has given him convincing testimony of a pattern that has not speculate what the wages were going to be in the future and not only wasn't it for the next contract these contracts only lasted three to five years bad is in the record so she is not only going beyond the one that they haven't approved yet but the next one and the next one i submit to you there's never been a commission decision that has gone this far because of the obvious inherent to speculation this is not a good case to suggest that this is an odd way to further describe what kassim is wants this is such even eek horrible situation to try to try to extrapolate to collective bargaining agreements into wage differential beyond the data because of the fact that the actual wages that we're looking at were set by the bankruptcy court so meanwhile mr mr young's wage differential is set by the bankruptcy court and everybody else is wages are increasing because we're all into a new contract with the exception of his wage in disagreement with the commission is a war because if the commission would have accepted what i proposed or that because it was too much of a windfall for the commission to accept what i propose i don't disagree with counsel that i propose mor two properly top private walk and tell us what it wage differential at the end even though i'm not totally agreement in total agreement with what the commission decided i think that they made a sound decision i think it is within their discretion and i think it's it's based on what the problem determination of eighty one is and what their expectation of not only the facts of this case should be and the wage differential in this case but also what other cases should follow now we have post cas