charge to be upheld we argue that the court that the judge also abused her discretion in failing to follow hag meyer and doing an independent analysis of the douglas factors when eight of the ny charges against know where it begins but it ends on page sixty eight sixty five and a sixty six there are nine side tensions of violations that mr martin was supposed to have made and only on the bottom the seventh you what you must have the wrong eighth sixty five and sixty  service employee labor relations handbook yeah these are these are copies of the hammer yes but you see here on our on page sixty four it says your actions are in direct violation of the following probation and day's work then be using the postal service for private gain and finding at the bottom an acceptable conduct the agency uses an acceptable conduct as a rubric and general heading in this in this notice but it also cites all the other violations including the lying on the department of labor form and in its narrative the first time this agency comes before the m s p judge in june of two thousand and five in july of two thousand and five and their answer they also state that there were four falses see a seven claims those are they by weekly claims that mr martin submitted to get his leave  complaining about an open that is in the alternative if you find that the fossil to clay sion claim is supported by substantial evidence which we argue it is not and the reason it is not is because we ask this court to follow and let me also go back and say that mr martin the full import of this case is that the agency threw the book at him that included the the indictment they included in the narrative of their of their response to the judge the work and yet he was working in a not turn of the job which require use of his arms he was videotaped doing that so please help me what's the what are you saying is failing for lack of substantial evidence here yes your honor he was videotaped volunteered for the for a sense football team and for other high school teams but creation he's supposed to be at work when he's doing this alternative activity is truly honor on october the set top of the seventh he was actually helping with the sense football team during his duty time but you was were not issues before at this judge that there is no there is no leave abuse case there is not no accusation that the agency didn't get an attempt to get the leave back on that one day and you're on it let me get back to the fact that the statements even if mr let's say mr martin said to the investigators yes i did volunteer every day and i did get reimbursements and i did fill out questions three wrong which is not  because i think you're trying to say there's no proof of intent but didn't the administrative judge infer the intent from all the circumstances here and isn't that entirely support the fact she may have inferred intent and that is where the error is because the intent had to be material to a benefit received and mr mr martin received his benefits from the documentation that his doctor gave and his honest answers that he supplied to the doctor your honor this fact is mr martin's doctor would not release him to back to work and the judge found this to be true did initially denied that he was record rico for the football games when confronted with paper evidence he admitted to this action at that point it is clear he was trying to mislead them and that's what he really derived the intent finding from write it was and that seems perfectly appropriate to me does it not to you your honor the intent she derived her into investigative interviews they were not made in connection with his application on the claim mr r in fact signed off on all of these plans during this time and self and never advised mr martin that that was why would he make representation what would be the motivation for i mean i think he acknowledges that he had knowledge that his initial denial was not correct or not true right he did say he said he was sorry to mislead but he did not intend to deceive the agency in any fashion and the judge below actually said on page twenty one i give credence to the appellants testimony did not initially consider this to be football a real job it was for the children it was only as a substitute and he returned the minimal amount of compensation for his expenses she only financed fought with the investigative interview you're on to that interview that you're  various that came forward months after his claims were already done and the interview he had with mr ritter your honor in bradley versus the veterans to administration you have to be on notice that the questions that you give are in connection with an inquiry or an investigation and the same thing is your level and lack of candor cases the employee has to be honest if he's going to be fired that there is an investigation or and adjudicatory or some sort of an administrative inquiry going on and mr and right another reason why we ask you to throw out the judge's opinions because what happened in the investigative interview you know it was it was more it was should not have been taken into consideration there is no gripper it looks as if mr ricker ripper was a special injury compensation specialist but on that day he was acting under part of the fraud unit and he had been asked to gave to a call mr martin at work a written questions from a written preparation by mr schaffel either and he was acting he said he had never done this before in the twelve years of his life and he did not advise mr martin that he was asking questions which are concerning an doctors noticed that he could leave early there is no question that mr martin was in pain after three to six hours and that he had the doctors on eight ninety six of our candidates we decided the doctors return to work for early but to get back to the fact that there is no he was refereeing he only saw the doctor once a month and that is why the doctor didn't know what he could did he was refereeing and using his arms states that she relies on dr pat as sworn testimony at the criminal trial this is not a battle of medical experts mr plaid is testimony that the arm movements outside of mark were not lifting their repetitive motion and lifting mr martin was working six hours a day he left home he left for home only because his arm burned as if it were on fire their record shows and the facts below i do not  of the employee's physical condition ability to work now certainly there was over several similar space pages a number of reserve presentations that were made by mr martin about his physical condition work but there was only one charge and the board misunderstanding i didn't know that participating in these refereeing activities somehow you know affected you know might my failure or trying to work on my receipt of workers compensation benefits if he had come clean  about the fact that he'd been doing it i think this might be a different case but instead what he did was when he was questioned about it you continued to lie and mislead investigators about what he was doing which the a j got and i think  appropriately spoke directly to his intent if there was a misunderstanding there but no reason why i wouldn't come clean right away but because when he was asked he continued to cover his activities and as the court noted even it was refereeing during work time when he claimed he had to leave work early to referee it because of his arm that all goes toward that element of intent and on that issue the fact that he repeatedly lied whether it be to mr ripper or whether it be to the inspectors or on the ca seven forms the question of intent becomes very clear when mr martin has to be confronted with direct video evidence before he tells the truth when the penalty like kept out of work for a month when it was clear he could do more than he was letting on and even then it had reached at least three thirty rings with and on his shoulder with the year or year and a half correct and certainly you're out of the government sympathize with mr martin and while he was an employee there was it was a good employee but there comes a situation where one employee is willing to misrepresent himself over two month period and this was noted in the letter decision the postal service simply loses faith in the employee's ability to tell the truth and when that's the case it not only affects the efficiency of both service service which is the standard on penalty but also simply undermines any supervisors ability to believe in the next case that mr martin is going to be truthful and i think it's significant in this case on the period and in one instance had to be confronted with his deposition testimony to come clean and the board noted in the testimony a number of times when mr martin was left less than forthcoming before the war not only before the postal service and that case it speaks even further to you know mr martin's ability to tell the truth which obviously it is something that the postal service cares about the cards to have an employee on their r enough to warrant removal action and certainly in this case where mr martin's misrepresentations led directly to the receipt of workers compensation that it was due to which he might not otherwise have been titled certainly  know means that this is a serious misrepresentation case and it's one that i believe warrants removal i think the case that petitioner cited and noted earlier argument bradbury illustrates precisely why this case is different from other cases in which the court dollars because he claimed he had immediate family but in that case he did not he did not disclose the daughter for which he was seeking relocation expenses in that case the reason he didn't disclose the daughter is because he had two separate families he had one that was that case that his intent ploys intend that case was not to somehow you know divest government of it of workers compensation benefits or in that case relocation expenses the intent was to hire a family member that is his workmates didn't know about and whether right or wrong there was no intent to deceive or defraud the government here there's a systematic a systematic systematic act by mr martin that specifically showed that he knew exactly who's doing this is an employee who you know as it is the court did know is had several injuries because of his work with the postal service but as a result of that he knew exactly how the workers compensation benefits system worked he knew exactly what he had to say and what not to say both of the postal service and to his doctor in order to continue to stay off work and then even when he returned to work to be able to leave early for several days in october even after he returned and that chased the serious the charges such that the police service has to be able to move employees who act in that fashion regardless of of any mr potations he continued to make their after the pure nature of the charge the seriousness which is misrepresentation charge because the plaintiffs the gist of petitioners case that this was just a big misunderstanding may have had more credence if it was a big misunderstanding then there would be no reason why you couldn't come clean right away but because mr martin knew that he had been misrepresenting his physical condition both to the postal service and the forms and he submitted he continued to cover rock those issues and that's the circumstantial evidence on which the clear found that when he made those misrepresentation s during which he was out of work he intended to do so and that find it's not only supported by substantial evidence but on the credibility determinations made by the ministry of judge of the here simply put the administrative judge didn't believe mr martin and i have no reason not to believe the relevant postal service witnesses who gave testimony regarding their investigation and what mr martin was doing during the months temper when he was out and during the month of october when he was leaving early credited by the administrators judge that's not entirely accurate dr clay didn't testify before the administrative judge and it was a situation where the administrator certainly went over his testimony and gave some points in favor of the government some points in favor of mr martin but certainly there were determinations made in regard to what dr player testified about and certainly the administrative judge placed no weight on you know wh front you know several instances noted that mr martin had been less than forthcoming both during the invest both while he was out of work during the investigation and also before that mr judge yourself if there are any circumstances that from which you can infer a couple intent mast be related to a benefit he received and the agency no longer is claiming that there was a benefit they dropped all the charges of the ca seven falsification there is no also the us only thing before the judge below was whether mr martin left early in the month of october claiming it was due to his injury that is the only question before the judge here should not be misled by the statements that and you can't do an end run around if an illegitimate workman's comp claim he was entitle to everything under his doctor's orders the agency itself claims they could have been accommodated earlier in september but the judge herself through that out stated it was the agency's matra that was i believe in footnote number eighteen she says he could not be accommodated this was it's their injury within thirty operation within ten months and the doctor wanted him off for actually one hundred twenty days it says that in the investigative memo mr blipper had just eight days before that surreptitiously taped conversation told mr mr martin to get a doctor's form permitting him to leave early for work and it is memorialized although i don't have at my appendix inspection service exhibit fourteen bates number forty five and fact is what mr ripper took mr martin to do just eight days before at that criminal fraud sting operation where mr martin was not informed that he was being questioned about any material matter concerning a benefit or his workman's comp and if it's he is fully entitled to his benefits