commission's decision in the morning benefits under the provisions of eighty one is appropriate and supported by the record but it would be the contention obviously is is and can ignore perrie's that without a job facts again are he was not working at the time of the arbitration hearing he had found a position on his own in march of two thousand and six at a security company  he was obviously earning wages that were less than what are you earned when he was working for my client he worked in that position for about two two and half months left the position voluntarily according to his does the morning as it was decided hour job in the best he could ever learn in the marketplace is eight dollars an hour over him he says well i don't want to work on it anymore i'm not going to work anymore isn't he still entitle to the twenty two dollars an hour of impairment that he suffered by reason of his injury i would disagree with that assessment because i think that it's not a natural i think what we're talking about is at that point is the theoretical based not you need this really interest the issue really comes out as you need to work in order to prove a waste of breath of my next question does he have to be working at the airport or the arbitration hearing to be able to recover the wage  question again he is supposed to receive an amount equal to sixty six and two thirds percent of the difference between the average amount which he would be able to argue in the full performance of his duties in the occupation in which he was engaged at the time of the accident and we don't argue about that and here comes the last phrase in the average amount which he is returning consistent with my original statement that you're not you're in earnings are impaired if you're not working you're not able to earn money if you're not in the labor market that's that's my question if a means of earning capacity has been impaired and weaken a den of five the amount of the impairment visa v hourly wage why is he not entitled to that under revoke rehab  even though he chooses not to work because i we don't think that that's the reasonable interpretation of that particular laws of the one i think that the interpretation of i think that's a that's a condition of this this portion of the clause of eighty one which states is able to earn in some suitable employment or business after the accident is a condition on the previous statement which talks about is able to or so and you probably let's get to the point you want to say go do i say it because that particular provision because both ways you can't walk in and get a lower paying job because you have to prove what you're able to earn and you also can't as an employer as in the smith case that cited by by coun is free to manufacture a wage for your returning employee where they would not be able to earn that wage because of their impairment i think that's worth the the i think that's what conditions that that that earlier statement because if you if you accept the award and then you vote how do you know what the genie out of the bottle of that point how is it that that under your under the hypothetical that  differential award because even in spite of their serious injury they can still do their customary line of employment so what do we give them we give them a percentage of a body part we give them a percentage of a person  differential awards for the person who can no longer engages customary right of employment so he's got to engage in some other employment right now agree with it but i still believe that we're talking about actual impairment suddenly come down because then you say well i recognize the state you know it's still your honour's he doesn't have to be working but here since he's not working there's nothing to base it at well i said that he needs to be in the labor market looking for has had their earnings impaired as a result of their injuries we'll get into that with the governance is shown you're right but is that actually what it would be doing because he's not working he's not he's not losing his his earnings are being impaired because he's not working how does this not how do you just stop again you know my my analogy and that are my my catchphrase of how do you but there's genie back in the bottle if you have someone who accepts retirement so security benefits under these same me to answer i i can make arguments as to why i think it's it's it should be required because you have these other benefits that are available to an employee such as mr santo you know he certainly has  the labor market precludes a wage differential award where is the authority for their holding well i can only i can only speak to possibly to some take that was in one of the cases cited by counsel it was in the franklin very honest effort to go out on the market to show what he's able to you see what i'm saying that could tick to goes to that because you've got to have a base there to do the differential here the evidence that dick that really goes to if you don't have a go at making those base statements his activity in working establishes the reality of what he's able specifically the provision is earning or even turn the condition here relied on a plethora of evidence as to what mr cent toil is evil terms in a suitable alternative occupation of your honor's i've already pointed out some of the facts of commission relied out in addition to those already noted by the panel i would also like to draw attention to some others specifically the vocational reports of martin how mentioned yet martin power was the vocational rehabilitation expert who works in house for respondants workers compensation insurance company who worked hand in hand with mr chen toyo monitoring his job search activities and he was actually the one who recommended that mr santos go out become a licensed security guard and pursue that line of employment mr santo followed mr powers directions and also he was successful in obtaining that license and obtaining alternative lee is the one that testified that they both work similar jobs in pay the same hourly rate in the twenty five earlier and seventy thousand dollars is a mere operator in the calculated wage differential based upon least testimony lead testified however that within his seventy eight thousand dollars was overtime some of which was round theory some of which was involuntary is not entitle to include the in the voluntary portion of the earlier time in calculating the average weekly wage even for wage inferential purposes and no distinction was ever made below as to ho much of the over time that lee work that was included within as to calculating average weekly wage it's my position here today that under section eighty one average weekly wage does not apply specifically because mr mr lee's testimony was offered what happened here i agree with your honor mr lee testified as to as to his earnings there was no evidence to the contrary and he testified that yes some of his overtime was managed or i think he said it or you are speaking with his regular essentially his regular work week have segregated out for voluntary portion of the overtime and then are perfectly free to rely on the remainder i mean if one mill operator has to work so many hours of involuntary overtime well maybe all of them as a result the timeline of what happened here i think is very important mr lee testified on day one of his buy for kit during a two occurred over one hundred days later mr the testified as to his earnings for this employer and this employer had ample opportunity i know it's my birthday and i appreciate that i think i achieved my burger but this employer had every opportunity presumably they have control over all the wage records they could have brought in always records of all the rights they could have brought in other other mill rights somehow attacking mr lee's testimony there is no contrary evidence there was no evidence offered that that established that he had available to him a job which would allow him to work sixty hours i agree his physical restrictions imposed by the doctor don't preclude a certain number of hours but there's no evidence that such a job was available just like there's no you see there's an inherent inequity because where you're saying i have to show what he is  statute is asking us to speculate to some extent and as best as i could i presented the evidence that i thought was most appropriate ultimately the commission you are afraid of commission in circuit court did rely on it and i understand the inequities to which riders pointing out but here there is no evidence that he couldn't work sixty hours at a security job where he hours there is no such evidence there vocational counselor mr power never mentioned that he should he should attempt to get another security job or attempt to supplement that alternative employment in any other way also going back to a special  posing counsel curious to argue that the claimants voluntary decision to remove himself from the labor market precludes a wage to four differential a word period what's your response to the  understand it that the method for calculating average weekly wage that we normally use is not playable to the scenario involving if you want i think it's they refer to average weekly average amount  under section ten i think it's not there's no provision for that but that different definition and with respect to whether or not we've provided sufficient puzzle information or evidence to this i think the evidence is there to try to record is to was one of the way that the commission can calculate the average weekly wage mostly testified that he works forty eight hours of mandatory work a week at the union scale that's that's what it would be and he also worked some additional voluntary overtime i think that that was a i thought it was a pretty simple way of of of getting to that part of the equation being of the first part of the of the so you're sen making the question became how do you define all this is voluntary over time it's not included will normally and i think that's the argument that's being made here that should be it doesn't matter because we're talking about an eighty one percent section ten of the other position that i had with respect to or the other the other issues that i had respect to this particular second issue was was the commission in use in that second part of the question where you are using either what he is earning or over what he's able to earn used actually what he was earning i think that's the point that in this in the security job and didn't i don't think it appear that they considered what he was actually able to earn if you're if you're looking at what he was able to earn he's a will or an eight to twelve dollars an hour on the basis of his own expert testimony why do we use the job that he was in six months before the hearing person is what he's able to earn if if we're going to be