figuring the average weekly wage then it's either the first or the second method of section ten of the act that applies mr mcginnis had payments in each and every one of the fifty two weeks prior to the across even though he said days that would be deducted from the divisor of fifty two used to the average weekly wage calculation and three claimant didn't do that so we're left with  applying method one which is take the annual divide by fifty two you get the one thousand one hundred seventy four dollars and thirty eight cents yes that's it not showing that should of you were to exceed to your argument would have to be the commission we had three sir with respect to the temporary total at the outset after the individual was injured of this from for the period from december ninth two thousand and six to march first two thousand and seven temporary total disability even though mr mcguinness testified that he worked and was paid light duty during the period that's it page ninety eight in the arbitration transcript and also the responde records which was exhibit three showed that he worked and was paid at least through february seventeenth two thousand and seven and then he missed from february seventeenth to march fifth to get over a call so that he could have the surgery and he did have the search a march sixth two thousand and seven that's the date that the respondent the employer picked up the t t d and so i'm asking this court to order the commission to correct the member weeks to one hundred twenty nine just because of the fact that there is no contrary evidence during this first period of time after the occurrence mr mcginnis did work light duty and he was paid for it so therefore it was incapacity to work at that time with respect to the temporary partial now mr mcginnis did have two periods of temporary partial disability a total seventy two weeks in all no according to the average weekly wage if he scuse me the temporary partial definition is that the commission was fined the average amount the claimant could have made in the thirty two hours per week and the one thousand one hundred seventy four dollars and thirty eight cents in earnings so seventy in the seventy two weeks he could have made eighty four thousand five hundred fifty five dollars and thirty six  and in the same seventy two weeks he actually made sixty six thousand six o five ninety eight in wages so the difference is seventeen thousand nine forty nine in two thirds of the difference is eleven thousand nine hundred sixty six twenty three now the employer had made advances on this category of benefits they had actually made three advances in two thousand and nine totaling twenty seven thousand seven hundred eleven dollars and sixty four cents so they'd really overpaid this benefit the commission had a different formula the commission said take the one thousand four hundred sixty seven dollar average weekly wage that they calculated and figure out the amount that they claim we could have earned based on that in the seventy two weeks so that the commission didn't do this calculation but if you do the multiplication it's one hundred five thousand seven hundred three eighty four and then came out actually you're under sixty six thousand six hundred five ninety eight the difference is thirty nine thousand and eighty seven dollars and eighty six cents but of course the rate is two thirds of the difference so the amount of the employer would have zero for the period was twenty six thousand and fifty eight dollars and fifty seven cents and the advances paid in two thousand and nine actually exceeded that the commission never did this calculation and they  awarded penalties on the imagine shortfall in these temporary partial benefits but if you give the respondent credit for the amounts they actually paid then the over paid the amou and in this are in this passage i've not even mentioned the advance of five thousand one hundred ninety four dollars paid in october of two thousand and eleven you only count the advances paid in two thousand and nine  than the risk of the employer overpaid this temporary partial category therefore i think it's unfair certainly for the nineteen k penalties in section sixteen attorneys fees to be applied disability or make it through them ok so they made one payment for that that was designated as temporary partial which was the twenty thousand seven hundred sixty four they made a payment of two thousand dollars that was just general no specific category but just a general advance payment sole that the claimant would have something thirty five thousand one hundred ninety four in october above and was it in a general payment there was a five thousand dollars payment made in august of two thousand and nine for choice designated for permanent partial but then this individual is never awarded any permanent partial commission went on to permanent total so it has to be a benefit it has to be credited some category so let me move on if i can to the permanent toll disability this individual is awarded permanent told disability now there's no medical opinion to say he's a permanent total disability candidate he did a job search but i am arguing it's not really diligent non successful he had only about sixteen in person contacts over about a two to three month period i don't want to be critical of this gentleman but it really doesn't qualify as city diligently but on successful search i've lot he's about sixty two years of so maybe maybe you can say he does qualify as an ottawa candidate however if a person does qualify is not brought a candidate then the employer can refute that by evidence and we did have the evidence of mr stephan a little bit of rehabilitation professionals who opined that mr mcguinness could be employed in a capacity such as security monitor in a store or a cashier or creat or invite assembly type work so mr stephens testimony responds to twelve pages twenty eight through thirty mr bigelow on arbitration similarly page c two seventy three in the record  respondent did pay them they didn't pay them they paid them subsequent to the day when the bills towner in devon's by the potential written so they did make payments they made many payments to elstree and all more recent than the match them up against his bills they don't correspond in if there is no basis to make a determination is the way actually you paid for and what you didn't pay for and so now the question becomes  into evidence that they did some more service after the date of the bill so there was a bill short of a thousand dollars do i believe and they'd actually need seventy thousand dollars more to only work eight hour days he was only allowed to work forty hour weeks he worked five forty hour weeks he worked five twenty four hour weeks nineteen thirty two hour weeks but the problem is he testified there were days he would come to work and he'd be someone rude that's absolutely correct we don't know on the twenty four hour weeks when we work five these really did for the twenty three hour weeks he worked between twenty and thirty nine hours well so there she is did he miss a day of work would be the only miss hours in a day you know he testified that he missed days of work but we don't know how many we don't mean we never will somebody he has a bird and he has a burden of proving every moment of his claim and if he's talking about a good average weekly wage on a bed is proving how many days of work he ministers to enable him to make use of this second method of calculation and i mean i look at this record from one end to the other i can not find the sequel thing that would allow you to draw the inference he actually missed these up but the commission did draw that inference and they and i think they drew because when you look at twenty nine of the weeks there were eight hour increment and we know that he did not work full day or even he would show up at work and then go home but he didn't work now from the day after the injury and then and when we tried this case feel will change their method of keeping track of his work schedule when he's on light duty we now have time sheets that show the day's work and the hours worked in those days you know to hand what  you we asked for the payroll records for the period before it we got the pay or records that only showed out when we come to try the case they have payroll records when he's on light duty then show during like necessarily agree but from december sixth two thousand and six through february fifteenth to set two thousand and seven he missed eight full days of work this is respondents exhibit number four now they say that they only have people records that showed hours work before as of the date of the accident for the year preceding the injury if they produce payroll records after the date of the injury up you take that into consideration who really hit we may have the burden of proof but who is the ability to prove it when we ask for the payroll records and they only tell us we've got ours who are and yet they're offer irty two the commission can infer from that that he must have missed at least five days is that oh absolutely ok absolutely how do they infer that if he goes early without working a full eight hour workday well then that's easily encompass within the twenty three weeks where you work between twenty and thirty nine hours why if you if you work five days a week and you work twenty nine hours divide that by five and you work five short days  and you haven't come up with the situation if the guy only work one hour in a week you could infer that he missed forty's work but if he works fine even hours in the week how  eight hours each week how do we know that because our petitioners exist responding to me number one says he were thirty to thirty two hours a week right when we've got nineteen weeks so you're going to say because you missed eight every reasonable ability to do that i believe i did right is that changed the law i mean if the statute says you've got to prove it in terms of five or more days off and you can't prove it what do we do do we twist the statute no before that then it's that's the issue i iced i dealt with it i have to deal with it if i can only give it to you and can live with what you do sock i mean the troubling part for me here is you're telling us partial disability no one sad state it's based upon what very average salaries were before the injury i believe it is the gross average weekly wage at the time of the injury minus the net amount and that's what we based upon we sent them their own payroll records requesting the money we  n it took twenty six weeks before they made their first initial payment of twenty thousand seven hundred eleven dollars when there's an issue of counties they have the burden of explain it away they put we made the demand they did not respond the only time there was a response was when they did their proposed findings when then all of a sudden they're trying to take  it they never mention the amount of money that was awarded i'm permanent partial disability from the d d trial or the date that he was found to be totally disabled ingeniously to the data trial in november so certainly i moving target because it all depends on what you find is you have rich weekly wage and i have tried calculating this out to a month but sunday and i get a different number of almost everything hundred twenty days after that would produce a joy i fifth two thousand and seven this one a vocational plan should have been filed with the commission they filed i fail to comply with this rule section seventy one turn point ten and fail to initiate any rukh ational assessment until july until the second half of two thousand and eleven i march second two thousand and eleven we had mr belmont vote plan that they had the petition revalue it not until the trial began did they even state we want to now drew vocational rehabilitation there was a four year hiatus with the employer school my client doesn't have a computer he couldn't apply for jobs with his a computer he doesn't read his wife drives him to the job sites so many he can learn how to get there because he can't read education here or work experience where you can transfer ability of skills his disability is told the opponent says with a little bit of help from our friends could be employed yet they never even bothered to do a labor market survey petition would be entered on so i don't think there's anything sinister in that after the injury they kept track of what he was doing you know and they kept track in terms of morning work to what he did several because in that time to the counties argument yes we've had a disagreement here this morning about the error which we think wage words are also implies that there is a reasonable to this agreement as to what was owed temporary partial which then implies that the payments that the employer made to resolve this issue are a provisional basis were reasonable not vexatious and that the respondent employer was not carrying on frivolous litigation for the purpose of delay there is a real