please the court first brant is a veteran and he had twenty five years of experience with the united states postal services against odeon he was removed from his position on the basis of a congressional powerlessly protection for federal workers so that they not suffer losses in rights or benefits as a result of injury sustained in the scope of employment picking that up is a long string of cases from the mirror to stern protection board that state that no adverse action for a w o l can be sustained if the employee was entitle to compensation benefits as a result of injuries during the scope of his employment for the entire period in which he was charged for a w o l mr grant was entitled to and received a schedule investigatory interview with the manager of maintenance he did attend he provided the manager of maintenance with all the stacking mentation that indicated both that he was unable to work as well as his attempts to call in and request leave the manager of maintenance disregarded all of that and initiated the action to terminate them compensation is not just wage loss compensation is also money or benefits paid to the individual for a permanent physical injury mr brant injured his hand held up the same as being unable to work  had a permanent physical injury had reached maximum medical improvement he had constant pain weakness and stiffness he was a custodian you have to be ambidextrous in order to perform all of the duties that are required to be performed by a custodian he was unable to do that the judge ignored or didn't understand that the significance of that particular report and that particular diagnosis after the hearing we presented evidence from the o p m that indicated  that they had granted mr brent's amplification for disability retirement disability retirement the inability to perform his position along with a supplementary letter from o p m that have informing mr brant that his application was granted is explanatory letter that says we're not granting this on the basis of risk reconstruction we're granting your application on the basis of the contracture of the joint of the right hand it necessarily relates back to the conclusion and the diagnosis of dr grant as of january tenth of two thousand area of two thousand and ten going forward he had reached his maximum medical improvement he had the condition the at diagnosis is inconsistent with the ability to perform his work as a labor report is the foundation for not just the old w c p a word of compensation it's a foundation for the conclusion that mr grant was also disabled and unable to work at the time reopening it's an abuse of discretion not to reopen and initial decision from the board provided that you meet three tests the government agrees with what the test is new evidence they don't contest their due diligence they didn't present any opposition so it's waived the real issue is whether it was material we've been arguing that it is material because the administrative judge came to the conclusion that the principle of law that i started with was in an applicable to a case in which the individual distinction that strong in the law as to what compensation is in o w c p defines compensation to include both payment for permanent physical injury as well as w charge with a w l while for a period beginning after dr grant of a diagnosis was reached and he was entitled to compensation throughout that entire period of time d the limitations and what mr brown was able to do should have been assessed by o w c p communicated to postal service which was then tried to put him in a position for which he was qualified and was consistent with his limitations he only filed for disability retirement as a last gasp should try to achieve some type of compensation and he should improper if he was improperly removed from his position he ought to go back to be reinstated with pay offset by the amount that he would have recovered from disability retirement over the imperial term couldn't do that morning may please the court this case is essentially a simple a wall case the charge was absent without leave because mr brandt failed to comply with any of the clearly established postal service regulations and rules  plate resource management puter system if you're out more than three days you have to produce medical documentation if you're at that time if you're out for an extended time where the three days you have to produce medical documentation none of the doctors reports that mr brant submitted after the fact said he was totally incapable of working and doing his job some of the doctors reports and it starts at appendix one forty five returned to work making no mention of any restrictions one report said he can't use his fits of anger one report said he couldn't push pull or lift anything more than fifteen pounds meaning that he could do those things less than fifteen pounds the postal service tried to accommodate him and mr brant testified that the previous fall he had been on restroom detail he never disputed before the board that he was unable to work with a kind of accommodation of the postal service was making mr owens and davis supervisors testified about what it is you're arguing that the fact that he's getting scheduled compensation for a permanent injur permanent partial impairment that is his right hand was permanently impaired not totally disabled but impaired under the schedule award at a thirty six percent rating which is what the  of workman's comp provided based on dr grant's report and it was partial it wasn't full he assumed he could work in fact mr brant testified at appendix pages for eighty four and eighty five and also for ninety four that starting in late may he was trying to get back to work and in fact in july after the proposal to remove before the final decision to remove he went back to work for several weeks  owens testified that he allowed mr brant you know could work even though he was partially impaired and got the schedule where he never got a wage last ward and again the postal service accommodated him by either giving him restroom details to which mr brant testified or if he needed help with something heavy getting help they were going out of their way to try to accommodate him in that regard  he's talking about the wage law to claim wage loss claim is something totally different than a schedule award even though it's compensation workman's comp also gets compensation for the death benefits and other types of things that doesn't necessarily mean that they're treated the same and for this is it's an issue for suppression if the court decides to reach the issue of the schedule word vs wage loss yes although in our view that an alternative independent ground for a ferment is that there is substantial evidence simply on a wall because the board cases upon which we rely don't involve the kind of agree just violations of an agency's rules about always a defense to remove all based on a well that you have a certain kind of compensation award full stop they don't go that way because nobody ever raised the schedule one issue so if the court were to reach that issue it is an issue for suppression but this court but the court could affirm based simply on the stance of evidence charge because the schedule of work issue was an affirmative defense that he raised but  again the the none of the board cases upon which he rely deal with this kind of egregious violation of agency rules bottom line he's asking for a rule that he can ignore the easy laws about reporting in every day if you have an in that respect because yes an employee came in and said i have a wage was playing pending which by the way mister not because workman's comp and denied that it may have twenty twelve but if it and play came in and later grants a wage loss claim meaning he's totally unable to work for a certain period of time never have to be supported by medical evidence then that could excuse a won't charge but the on  board cases upon which he relied don't involve the kind of clear violation of the agency's rules on reporting because again what he's asking for is the rule that on day one and this went on for several months he doesn't report through the proper procedure so management never knew from one date in the other whether he was coming in and they had to find something else to do what he can answer to questions about the relationship between the two opinions the board opinion  says this is a twenty except as expressly modified by this final order we affirm the initial decision issued by the administrative judge does that mean that the administrative judge's analysis of the distinction between the two different kind of o w c p awards is part of the governing decision or what did that get displaced by and this is the other half of the question by the board's discussion of section eighty one fifty one your are  good question because sometimes when the full board says the firms accept the modified it's not one hundred percent clear exactly what the full board in doing but in this case i think a fair reading is that the a reasoning is the same in full and the full board and this was in response to mr brown's argument the petition for review went into section eighty one fifty one you only get the statutory one year right to your job because mr brand was arguing as a matter of public policy you don't have the opportunity to keep his job well in this case he had abundant opportunity he just sat back and again i would point to page one thirty seven so even under the line of cases of the m s p cases where in some cases if the entire period that is each and every day of a wall for each of those days the employee is granted a wage loss claims that might be excused but it doesn't his mr brent's case doesn't fall within that because he had missed that he never called into the e r m s system  as he was supposed to do to report his own schedule absences he saw flames that he called play did call into is an automated phone number system to ask for family medical leave act which which as a testimony and documents the samples go a different route there's a similar family medical leave act coordinator that deals with those kinds of issues and clearly he was told that he was not eligible he didn't have the from hundred fifty hours of work to make an eligible for that and finland's leave without pay but he never called then and he doesn't dispute this through the required procedure the e r m s procedure every day to report an unscheduled absence and if he had done that then his supervisors would get an automatic form that mr brent's not coming to work as an element what has the effect of the two thousand and  effective date of the disability retirement or whether it would be retroactive to cover the a well period nobody knows what happened between august the twenty ten when he was removed and june of two thousand and eleven when o p m said he was eligible for disability retirement nobody knows what any of the medical circumstances were during that time he could have submitted to the full bore and along with that o whatever it was he had submitted two zero zero pm but he didn't do so so all we have on this record is this doctor's report starting at page one forty five of the appendix covering the time of a day well period none of them say he was totally incapacitated from duty for work and he admits that he was able to work in part and he he went back to work and in july for a couple  weeks after the proposal to remove which was in june until the effective date of his removal so this whole issue about the wage loss or schedule award relates as we stated in our brief the schedule where is really irrelevant because it was no evidence that he submitted either to his managers at the postal service or to o p m that he was unable to work from early march through eleven which was a proposal to remove and he did not respond to the five day notice that management gave him basically come in and give us whatever medical documentation you have it was not until his meeting with mr mcgee the deciding official after the proposal to remove was issued that mr brant came in and told mr mcgee well i have the schedule award one is irrelevant here in under the e l f as the was set out in the proposal there are very clear requirements about what an employee must do it's his job to show up for work or go through the proper procedures to tell his managers that he will not be working and he didn't do any of that  schedule award payments pursuant to the schedule of the ward he then ansto w c p to change his status of the claim to a wage loss claim they refused to allow him to do that because he had already begun to receive periodic compensation pursuant to the schedule award and they have a policy that's it basically says once you've elected to go ahead and get a schedule award you can convert that into a wage loss claim and federal law prohibits individuals from obtaining compensation for a schedule award at the same time also collecting compensation as a wage law so he had to choose one or the other he started out with the schedule award and later decided that he wanted to change his mind and o w c p prevented him from doing that secondly there is here that the m s p v rule against dismissing employees on the basis of a w o l only applies if you have a wage loss claim that simply doesn't exist in and they have basis alone we think that the decision could be reversed the government's argument about whether he called in the basis for the notice of proposed removal was his supervisor said he had not called and he had not submitted documentation the testimony that came out at the hearing was the opposite of that they acknowledge that he called in they acknowledge that he called into the tour offices that he spoke to each of his supervisors at different times that he had left messages in the tour office for other supervisors to notify his supervisors that he was  unable to work and had requested leave he called into the r m s number which is the eight seven seven number and during that he got transferred and to elect f m l a which was a request  without pay that was documented all of those documented calls were sent by e mail as well as a copy of the form was received by the supervisors and they acknowledged getting  those forms which indicated that mr grant he had called in and requested leave the other part of their statement was he failed to submit back to mentation yet and cross examination each of the supervisors testified they had received dr grant's report they had received other medical documentation and in the course of the hearing the administrative