nation period days and pay the freight during that period of time should be one hundred percent not sixty percent how do you if if that if what i just said is correct  have been efforts with the plaintiff now happily railroads to negotiate that they some unions have been successful some have not sixty percent whereas in the messages its employee if the message uses was affected it would have to pay one hundred percent for the first four days and then sixty percent for the fifth day that's what i'm understanding  argument is i understand that to be their argument as well although there is under the statute that we're talking about today a seven day waiting period which will purposes if you or your question let's assume has been church which the railroads claim preempt the application and so i think what you're asking me is if then we have to go back and look at those statutes wouldn't be addressing the same questions under those particular statutes you're not eligible for benefits under the or are you why a for the same period and consequently the waiting period does not follow exactly which i was asking you before in fact every doesn't doesn't give you any benefits for that brief period of time it's why isn't that an additional sickness provided by massachusetts the reason is that the federal law actually is not a but term sickness benefit it's not different criminals more than more than two different kinds of reasons that employee would want to take the benefit of the massachusetts statute but those reasons are in fact visible to the it's perhaps i misunderstood your question or let me step back for a moment they were asking me what is the difference between the employee being injured away from work by being hit by a truck versus being hit by a domestic partner i is a definition of benefit in this statute that you can use to define the category of states sickness laws that are preempted and what they're doing is they're saying we should borro definition of sickness benefit in section three fifty one and import into section three sixty three big and there's multiple reasons why that doesn't work the first is just the language of the act itself it doesn't say controls to substance for instance to the law you know it does not broader and here's why the phrase benefit contains the parent out of which they ignore which says that it doesn't refer to things that are clearly referring to something else the section three sixty three reference to state sickness laws has to be something else in new york that's number one number two who is the use of the phrase sickness benefit three sixty three b doesn't get me where they need something then it contains a provision that says business will benefit shall be exclusive people shall not have rights to vehicles under state laws if the state has a law saying we're going to hear everybody at a red s u v you wouldn't say that because the sickness benefit is we can tap into and to some extent they've conceded is a wage substitute that is offered when an individual has to miss work for health reasons just in ordinary parlance that is the way people refer to sickness benefits it's the way that massachusetts used the term in this very statute it's the way this court uses the phrase on its own website it's the way people refer to sickness benefits in just through casual conversation but this is this the release i think back to the questions that you were asking my friends earlier with respect to unemployment and we just briefly address that if they were or if you take their argument at face value what it would mean is that is saying that well these are very different arguments i think you heard him use is apples and oranges analogy again we vehemently disagree with that they are the same at the only level that makes any difference in that they are both providing sickness benefits to workers they are both providing something in lieu of wages when someone is unable to work for health related least if you could go back to the employment issue if you if you accepted the proposition that we would call the are you y a benefit some type of unemployment benefit even though the person is still employed is there any basis  similarly concluding that the massachusetts benefit is an unemployment benefit how could you distinguish between the logic is exactly the same if you say someone is unemployed for purposes of the or are you i don't see how you could say to remain employed for so in that context of course they're going to say look we're not going to worry about trying to guess how states might design their particular schemes we're not going to worry about whether it's short term long term whatever if it's a sickness law it's out in the did so in a context where they were giving employees something that nobody else got their sat there not just depriving railroad workers of of benefits that everybody else gets they were saying here is a new benefits scheme you've chosen  of all because massachusetts didn't just call it that they would be legislative finding that this is health related and if the situation were reversed and i were arguing that if the law said everything except sickness benefits were good and i was balance if you're worried about how far this might extend beyond something that is very clearly a sickness law which in my view the massachusetts law clearly is i only have a little bit of time left if you would like but if you were to reach the question the issue of severability turns on whether the piece that you're excising is too intertwined with the rest of the statute to leave the rest of it in place and i would suggest that cases like shawn alaska airlines that they relied on were situations where the court was removing something that allowed the rest of the statute to exist quite easily here we're talking about excising we're benefit from this wall and so you can be creating something that nobody else in massachusetts gets essentially forty hours of domestic violence there's no indication that massachusetts legislature would want that and we're certainly no indication that they would have impose all these burdens tracking a cool reporting for when they created for a benefit that's this big that they would then want it for a benefit th so this provision is not separable and if you disagree with me on that then i do suggest that judge matsch is correct that it needs to go back to the district court on that question but i again i urge the court you don't need zero one is that it is a question of legislative intent that is i think would be more appropriately addressed by the district court the first instance there is also the equal of the judgment raised earlier with respect the fact that there are these two other preemption certain aspects of the domestic we've got that and then again that's why i just don't think you can leave that tiny bit of a law left and remove the rest of it and say it's just settled as any further questions