things have to two prongs have to be satisfied first and foremost the employee has to establish that they have had a partial incapacitation which prevents them from returning to their usual and customary line of employment and second that there has been in evidence submitted by the employee that he's had an impairment and brings in this particular case this employee failed both songs but i will also argue assuming argue window that he met the burden of the first song he failed the burden of the second from the employer's perspective there's ample evidence in the record that quite frankly the commission should never have decided the way they did to begin with this particular employee at the time that he was released after his functional capacity evaluation in q two thousand and four was released by his treating physician dr paul two a medium level capacity with permanent restrictions on the employer does not disagree in that capacity at all however who was the vocational counsellor and has had twenty three years experience in a new location and physical rehabilitation in vocational assistance had performed a job analysis of this individual in two thousand and two of what his job was as a heavy equipment operator me and the classification of that job based upon all of the measurements that she took it and put together in the report and her analysis of that was that it met the light physical demand level and he's re correct by the f c e a and by the statements in testimony of dr cole there were some restrictions and there were limits placed on the listing and whatnot but they did meet the medium level classification even by dr cole and the admission that had indicated that his have you quit operator position was that of a like this assay during her testimony before and during trial she even stated that her analysis and review of his job analysis that she performed in two thousand and two and the results of the functional capacity evaluation all the measurements and testing and findings in those he could have gone back to his pre employment job obviously he didn't do that that's why we're here  august which is before his i believe even second surgery and this gentleman had a third surgery had apparently given the employees some indication of what level of functioning he was going to be able to get to you at the end of his treatment which is obviously not best position to understand the job itself and know what the limitations are frankly our mission it she's she was capable of looking at the job announced that she was there she performed it she saw that what this gentleman did as a heavy equipment operator basically support the judgment of column she does support the judgment of collins but her one and a half page report basically says she has no explanations for the findings that she makes she wonders opinions that says he doesn't have transferable skills he doesn't have you know transfer publications his age etc i do not support him being able to deal with any other activity basically and she'll finds that his employment as a part time bus driver with twenty hours a week awnings with suitable employment she did not perform the pay scale hourly rate right i'm certain i could concede that point because i have a point to make but to answer your question he certainly did need within the dollars per hour aspect of what the core of our labor market survey provided however he chose to take a twenty hour week part time employment i will say when mind this court that that labor market survey identified three different types of employment that he was qualified for and of those three types of employment at least twenty four of those employers were actively hiring full time employees and several more were anticipating hiring in the near future this particular employee as i indicated early on this would not go back to work as a heavy equipment operator and i'm going to fight to a couple of things first and foremost in his testimony in the record at the ninety eight early on when he was trading with dr collins in august of two thousand and two dr flash forward to june of two thousand and four when he was released with permanent restrictions pursuant to the f c e and active job placement assistance is provided at this point let me take a step back in september of two thousand and three  it first met with mr rausch to take the initial assessment of him and at that point she testified and it was in her report that he made a statement to her that well i'm not sure how this is going to go and i think the only thing i'm going to be able to do is be a part time buster and there's ample evidence by his actions and his refusal to act that he was on a path to not only working part time job so that he could qualify for and get social security disability benefit frankly there is no compelling legal reason i do believe it's i believe frankly it's the commission cure all making opinions that this gentleman is clearly functioning at a higher level than even his previous f c e dr cole when he released him with the current restrictions in june of two thousand and four said this time it's going to be a bad rehab candidate because he's got a lot of symptom decision one of the things that they cite to in terms of the deciding that he's entitled to a wage differential is that the respondent failed to offer him a job well because this employee never went back to the union to go back to work when he was hired for john  provisional council or specifically made an appointment and met with him at the union hall to have his name placed on the light duty roster which would pay union scale which would therefore state that he was not having a pyramid of money because he would be making union scale based on his experience and where he was pre injury to that he absolutely refused and admitted he refused because it would mess up him getting his union pension and he couldn't work a full time job because it they're not actually they don't they may be said that he failed to cooperate with the hope they gave in maintenance anyway that's not acknowledging that he failed to cooperate with but if you fail to cooperate with the case of rehabilitation you should be entitled to maintenance and they him from going back to his pre injury job the requirement to prove someone has an impairment of earnings this settlement completely failed to do he refused to cooperate with bo he was on a path and had told the vocational counselor in two thousand and three before he third surgery that he'd tried the only thing he was going to be able to do is get a part time bus driver job this gentleman at stop that path he refused to cooperate with official rehabilitation in that and i won't begrudge somebody taking a vacation but the point when he first meets the vocational counselor he said i can't cooperate the first two weeks of august because i'm going on vacation so he takes his two weeks vacation and comes back they have a meeting he set out with a specific number of employee contacts job  he's given a directive on the number of jobs to submit the next meeting he hasn't done any of those things he doesn't follow up on the leads that the count told him and gave him to follow up on the i will admit he did actually put together a resume and then within a month he has told a vocational counselor i found this job i'm taking the job with the part time bus driver and then his wife calls and says he's not going to cooperate anymore he took the job so there's a month where i don't even think it well the respondent didn't even have an opportunity to establish that as he refused to go and put his name on the roll you don't know what's there and you don't know what's available if you're not going to put yourself out there to find out what's the employer was able to put in at least what the union payscale was i would also submit that if they don't have light duty jobs and they don't have that option if it is even if there are no light duty jobs in the union why would they make an option for you to go down put your name on the roll for calling for employment two thousand and one and it's my perception here that all relevant providers military personnel perceive that he could not return to his relevant prior employment as a heavy equipment operator it's actually or cleaning type job ah the security we're on a delivery driver and the highest was the delivery driver paying a six to ten dollars an hour because the areas of work that he was in a done a five is doing that i know of i mean there's no facts here sold out the decks are his physical abilities he could not return to his past relevant employment and two different locations counselors there is in ours assuming for sick one of their main arguments here they were saying that dr cohen on the other said that he should be working full time first why have dr king's final report and it doesn't say anything here about whether he should be working full time or part time or anything like th miss schmidt was saying this was implying that topped out at ten dollars an hour doing things like house cleaning and security and on delivery driving which are all jobs of much less physical demand level and then the heavy equipment operator which involves climbing up letters on to heavy equipment operating levers and the like there's no question that there's lots of material in this record called what the commission did cite and what they didn't cite in the decision that supports the fact that miss that mr rove could not can perform is relevant were the only other question was whether or not we established that there was a well as of the day to hearing the union wage rate had increased to thirty nine twenty the statute provides a difference what he would have been making in this job and what he could make the difference is so substantial between the thirty nine twenty now and the ten dollars an hour that whether he was working at the ten dollars an hour twenty hours a week making two hundred dollars a week or ten dollars make forty hours a week making four hundred dollars week what they would be out in paying him in a wage differential is exactly the same that's why the argument is really moot on the issue of one of their big points here he should have been working full time not had time to is mo he's working at the maximum of the scale and and doubt whether it's working twenty hours or forty hours because of the maximums it's the same amount of money they're out of pocket no matter  i found based on his testimony here efforts said perform a perfunctory they just gave him lists why they told him to make so many contacts pro week they had him drop nice resumes so that he could go get jobs as house cleaning and security guard and essentially he said they were he's living in wisconsin he has transportation difficulties because he has only efforts by his testimony and i think the and the commission cited says some of those issues are they felt his is job performance was adequate and they felt within him within a reasonably short period of time when he began working with  room with the union i i'm not sure what point in time that was but there's no indication that he would have found that they had no evidence that he would have found a union just one point your honour's and just to respond to counsel and his position that why go on a job interview or why go seek out employment if you don't have an offer available where you can't get an offer of employment unless you go and make an application so that the potential employer knows who you are the the other personal issues the commission even admits in their decision they make a statement that he was not able to totally cooperate with vocational rehabilitation due to personal issues not related to the work and obviously there's been indication that he only had one car at this point it quickly wasn't a problem when he was working before he was injured i don't know what the circumstances are but at the time that he's in he's ready to and needs to comply and begin vocal rehab suddenly there's only one car between the two of them that's a circumstance that is not part of what is the result of his work related injury and the fact that this gentleman refused to go and place his name on a light duty roster i'm sorry it's just further evidence that this gentleman knew exactly what he was doing and there was no way he was going to put his name on a roster to even to to find out if there was a light duty job offer available at the union hall because it would have made that he would no longer be entitled to at least to the level that he was receiving social security disability benefits and it messed up his union pension unfortunately you know he could have a could i as the respondent have tried to get from the union on november whatever day that was what was available at that moment obviously we didn't do that that certainly would have been better or best evidence to substantiate this argument however the mere fact that he's refusing to even pay to try to go that route he only been doing the part time bus driver job for less than sixty days he was in a part time capacity and that's not suitable employment it was a voluntary decision on his part he refused to even continue to look for and cooperate with both after getting the part time job and that is the basis that this is this is just contrary it's contrary to the manifest weight because it never should have been decided in this w