to judgment and a couple of months later it also miles motion for leave to file counter claim and only the dances and part of the time where he's made the employee work his way back up to earnings that were equal to work see his his wages at the time of the accidents and the workers compensation half of ours for modification number of limitations to his ability to work however if the arbitrator did find that he was not permanently and totally disabled there was no medical evidence to support and he was not employed at the time the arbitrator did find wage differential benefits were due and amerindian pay those benefits up into the is that it is entitle to a hearing by a lower court so that it present evidence to show that the employee would be unjustly read if he continues to receive his current weight issues while working as a lineman poor subsequent employer in a matter of fact his wages are about one hundred fifty percent of what he received previously as well as to continue to collect benefits from amery in this case in addition to alleging he was permanently and totally disabled although vocational experts testified they at they felt the employer was capable of working he didn't make any type of diligent job search or make any type of inquiry the first knowledge to the first job that he has to the knowledge of was when he went back to work as a lineman doing essentially what he was doing at his previous occupation now the act at the time allowed for a thirty month period you to determine whether or not a person's disability was still present or had diminished in any way however the employee was not employed to our knowledge had no type of employment did not seek employment until shortly after that thirty month period ran it's our position that the employees in action by not even seeking work should not to his benefit additionally during that time period the legislature changed the law such that it currently allows sixteen months for a period of review at the time which you obtain that employment would fall within that six months unfortunately i it is applicable to injuries occurring on or after february one  pending in the circuit court to enforce that judgment but that it would return clues in quicker if we just follow that course of action rather than filing before the commission  understanding from the reading of that law and when it applies that it's not applicable to this particular case so is worker's compensation or special yes it is and i d so that's right let me ask a question it seems to me that my reading of the statute results were a totally permanently disable employee's benefits can be terminated when the disability no longer exists but a partially does that make sense well clearly the legislature has changed the law such that they determined thirty months was not enough time to allow for any changes to  it's the employer's position that since he is back to work at the same type of the point that he would be unjustly enriched there is no provision for any type of credit in the act either nor if it should happen that he's had a couple of back surgeries including fusion if he was injured at this particular job he would also be able to see  permanent per total disability benefits and or wage differential benefits from his current employer without any type of reduction who or what he was receiving  from those he's he's clearly receiving a windfall he's working in the same pass of the same wages and is being unjustly rich should be continued to receive those benefits at the same so recovery that causes you to come back even much much much later but worth it i mean i think just right that was saying that her reading was i guess you think so that if there's a change you can come why equitable relief should be granted are of course in opposition to the argument that he should continue to receive those benefits and in our conclusion there were a number of issues decided in t of judgment you know while the workers compensation and is to allow for protection of the finances of the employees this particular employee is not being damage or if there is to be a stay of course and while he's collecting wages to greatly exceed his obligated to pay right well there's the assertion if there is no damage rest on your ability to prove that in fact he is really employed and in fact does he have a good wage and then you get to the also the legal question of well does that make any difference what you stop paying when you became when you never became aware or believe that he was employed right and we believe we have very valid information to show that i and there was there were two methods to bring this matter before court and the one is to bring it before the commission same would you please review this the given that route that the time has run on that for that was our understanding of the reading of the statute the thirty months had passed and that's pretty much why your time's up the other horse was to discontinue payments and let the employees file an application for entry of judgment and to our knowledge those were the two ways to get to the court patient was filed with our understanding that it was going to be very quick and it was very quick it was a bit of a couple of months vehicle where the employer can come in and challenge the award in nor is it a proceeding which will allow for sort of a decision of the industrial commission or judgment of the circuit court so the fact that the circuit court this your specialty also suggests is there any left by which this award could be challenged at this time now there is and i'm going to phrase this unfair but it's so you've got something that's probably in total and is not very likely to change but you can review it forever and you've got a wage differential which conceivably could change and and you can only review it previous thirty months or sixty months depending upon which statute applies and that's yeah that's  and let me also explain a little bit about wage differentials they win when wage differentials years review they are not changed because of economic change they are changed hands to  minds there are other appellate decisions that have limited the wage differential you not to be changed it's just an economic change you know you look to that because disability within the act it refers to physical disability we have no evidence to give you whether you know it's a physical disability or not that it's not for you it's a wage different why isn't it fair to call the wage different differential a permanent partial because you well there are there are different ways to look and to award permanency permanent partial disability is typically done all the bodies divided and we send percentage of the entry at the butt level of entry this would have been a body as whole type of award if the arbitrator had awarded a permanent partial disability wage differential looks it is a situation that looks like have to go back to that particular job they were doing there is evidence given by vocational experts sometimes a person has a job and then they determine and it's a scheme set up within the statute as to how you look at this and how  survive i beyond that thirty month period of time it's not so if the end of sixty five months or thirty five months in this case it became his physical condition certainly understand you months it found that the employer suffered no injury and that the court did not give the employer or the employer any right to look outside of the act for relief found that this was a tradeoff between employers and employees and you know what i have i don't believe there was any mention of his physical abilities or disabilities one way or the other the review was based soley upon the economic circumstances and he has been working for a period of ten years and finally you know after that period of time was earning an amount that was equal to or steve did what he had earned ten years before in this case at the time of the hearing although no experts on both sides or the employer and the employee stated that this mr dallas was able to work other than a couple of imp that he stated during his testimony that he made with people in his hometown he hadn't made any type of job search to our knowledge he remained unemployed and till the thirty months and then shortly thereafter was his first job were while alive either a medical miracle occurred or somebody in a up in such that he was able to work in the same line of employment  and you know if allowed to the employer believes that it can prove that all but zero his medical restrictions may not have been lifted or be awarded on the basis of whether or not this appeal is religious and it's our position that this appeal is not religious there is not a case where the court dresses whether or not in a situation such as this they out the employer should not be afforded equitable relief when as you pointed out it patently on its face it's unfair you don't have to have any particular legal knowledge to look at this situation and see that it's unfair to the employer there are differences from this case in passons in that there was no request for equitable relief work quested they look