suggests that he has to prove that but for the injury would have been and whole performance of his duties in this case of course as a coal miner here obviously we have an occupational who is easy case which always is a little bit different than an injury case so i guess we're talking about him not making as much money as he did before an occupational disease was diagnosed and treated if necessary but that is not what happened in this case he had one disease which was diagnosed before he ever became a coal miner and that's the asthma course he worked with that disease under treatment for thirty years as a coal miner did not keep sleeve from working as a coal miner and even if it became an occupational disease because it was in some way made worse by it is exposure whatever they might have been in the coal mine it didn't keep him from working his home he worked throughout there is no evidence at all that he had to stop working as a coal miner because of any problems with disaster money breathing problems no medical evidence of that and no medical evidence it reached a point of no return that he couldn't do it anymore even though he'd done it for thirty years no evidence that he had any restrictions at all based on a sas much in those thirty years in fact in the last five to six months of his home and employment he was restricted because of a back injury that he had and he had been working above ground my understanding was in an office situation and any rate there was no evidence no medical evidence here that he was precluded from any jobs because this has all of the record that either doctor with a lawyer the doctors asked to record opinion as to others ability to work prior to the time he was working with the asthma yet when he's finished work and they come in and testify basically should've been but that doesn't make any sense to me that's number one are you will hold testifying you did seem to be years of progressive disease and he could as a coal miner in september of two thousand and six and he didn't do anything to look for work he didn't he didn't wasn't diagnosed with coworkers number coming else at that time that came later so that wasn't the reason he retired had been working with asthma for thirty years that wasn't the reason he retired he told that computers because of his back injury and the fact that the mine was going to close any got medical benefits that's what the commissioner says no that's what i  know he had those both those jobs your honor when he was a coal miner those are part time got ok he did not go look for any full time work any full time gainful employment after he retired from a job to take the place of the job theoretically he couldn't do anymore which is the coal mining job ok so he doesn't do that is that a full time job and summertime job is impaired from the full time job to just discount approach how did they prove how did they prove his title only what he would think they did he didn't go and look for that work he didn't look for any work he didn't have a they didn't have a be either he goes out and gets a job or he proves what he could have been earning and in my experience that's usually with a vocational specialist say and i think i've you know done the research i've done the homework i've interviewed i've looked at the labor market here's what yes it least of think believe him that's the best you could do they can't do that there is no basis for him saying that if there were a basis they could but i work your honor and doesn't find anything for one reason or another that's evidence that's not what we have in this case and that's what i'm saying so if you're that why don't i start so you're saying a preexisting part time job would not rescue activity there has to be something more than him coming in as a non vocational expert and making a self serving statement well how so serving was news fifty seven years old these were critical when you're thirty years in testify that all as i said i just don't think it should be enough for some guy to come in and say these two guys that i had before part time status of the best i could well your best argument is that this  my opinion is with regard to the actual wage differential that was awarded is that it was complete speculation that he would have been earning that one thousand and fifty six dollars and forty cents per week as a whole minor twelve first of all he retired never applied for any work at the time he retired he did not have a worker's number coming elsa's diagnose he had been working with as much for thirty years he precluded as far as i'm concerned from a coal mine job he never worked for look for all my job or any other job we don't know that there was any open coal mine that was working subject to this agreement with hourly wage that was put into evidence we don't know that he would have been hired we don't know that he had would have had any chance of being hired there and when you determine when the hourly we who own for purposely calculation that it changes it should that should be proved to the arbitrator and the commission so that it shouldn't be based five years back on what it was in two thousand and twelve when you pick when you here in six is the the amount he would have if he were still working full term profession to be then computer against the amount that he's capable of or it's certain you just absolutely wrong if you think it's david souter and there was evidence in this case that it was twenty six dollars and forty one cents was the hourly rate that was relied upon and that's what he could have been earning if that would have made twenty five point four one of whatever it was why don't we take that into consideration when should we were going to take into consideration what he could earn in the full performance of his duty at the time of the arbitration hearing which he actually but my my point is there is there are cases which indicate that if you after after arbitration after the sessions final want to waste differential if to give up that he's not a guy who likes to throw in the towel he likes to work the petitioner testified i had to quit a long shot the commission believed him in that position i say the commission believed him and that is sufficient the this man worked thirty years as a coal miner he was very active in coal mining the record shows that he was on the safety committee for a number of years he was a union president for a number of years this was his life he was on the state mining board the board of only six people which not only gave him is twelve thousand something per year salary but also much better health insurance benefits that he could get as a coal miner anywhere else significant amount there he also continued his local president shop now the fact that he had them before makes no difference to the fact that that's what he had after all and that it was appropriate and it's what he could do he doesn't have to go out and record i'm not aware there's a part time coal miner he was on restrictions for a back injury at the yeah yeah that was going to be my question and it was in their evidence in the record they did a back injury during the last year and were getting missed a lot of work because of that yes you had that co existing back injury which the commission knew up and which caused it in that year too is that there is no such thing as a less than forty hour commentary in fact where you determine by the national by two minutes wage agreement what his wages would be as of the time of arbitration the problem for the minor just thirteen fourteen and and it covered the time of arbitration and it gave a single per hour wage that was calculated on a forty hour week which is which is minimum because the truth is like i said many of these coal but under the act this wage differential of thirty really if if if if you were to take a lower wage job because of the benefits offset a lower wage and that  mild fashion medication the petitioner testified that his attacks were getting more frequent more severe and dr paul by the by the end of his treatment here when he when he left  w if i was application until about four and a half years after he left the mine he didn't know he had it when he left the mine he just no doctor going to quit because of it he had no limitations no doctor said he had them almost think to differentiate responded coming here and he has the greater burden so for those reading this dawson is easily distinguish now well the proof is that that he had a pay pad back he worked steadily and then he had a bad back was put on light duty that's all in the record he testified by the commission looked at it and then made their decision so and bill well there were there was testimony about that it was discussed and it was raised at the at the commission also when they made their decision that's not on the record i mean you know there's no transcript of that to back and show it but i can tell you it was discussed them and they made their decision and that point as to any specific evidence or testimony that offensively says that's the reason he was off the bat back right i think that is in there i think that is in the would be able to earn at the time of the hearing if he were able to fully perform the duties of the occupation in which he was employed at the time of the x post but why couldn't the commission find that if he was there's an assumption that mine for forty hours a week because of all the miners the commission sees sees many most of the work in more than a forty hour week and in that testimony and i can't tell you exactly what the test was but there was a lot of talk about that is in there and i think it was an exhibit to the evidence in the record is that this guy had his back injury which caused him to be on restricted duty in march of two thousand and six he last worked in september of two thousand and six therefore the wait statement is for let's say six months prior to the back injury that caused him to be out work still we work as indicated forty hours in four weeks out of the fifty two weeks and as i read my brief that suggests that the forty hours times the duties in the occupation in which he was engaged to the time he actually of the occupation was coma and full performance of his duties that's what we're trying to figure out here is it forty hours a week what is full performance last worked for monterey holer in the last year he worked on a recall is in the way statement and proves that he was not working forty hours a week it was their burden to prove what he ate what he was earning and what how much he was working and why and if he would have been working forty hours thirty seven and a half thirty six an order whatever at the time that the wage differential is awarded or they haven't met their burden and the wage differential should be thrown out now he the other point i want to make he left the labor he retired and that makes it in my opinion impossible to determine how much he might have earned in a replacement job for the coal mine job he quit because we don't have the evidence as we've discussed plenty before so obviously i would like the court to overturn the wage differential send it back to the