you the first is whether the book our incentive pool earnings that mr juneau freo earned after he returned to work should be included in the computation of his wage differential i submit to  that that is a straightforward analysis for this court when the commission issued its decision the arcelor mittal steel case had been issued last november you issued that case that allowed in the context of an average wage calculation the inclusion of the four hour bonus pool and i submit hughson section eight allows that inclusion either whether it's permanency or lost time that it's proper to use it in the post accident return to work calculation the second question is a little bit more of a policy question and that has to do with whether there's anything in the act or the case law that combines the parties to one single round rehabilitation and i submit to you that there is not we've had rehab cases here for the last thirty years and there's been many discussions and many elements there but there's nothing in that case law that says you get a one and done shot i'd like to go back to the book our poll because i think that is financially the one that impacts the case the most and has a larger approach  overall car dealerships pay people on commissions here he's people are in various types of commissions depending on the the position they're in the testimony in this case alludes to the fact that car salesman and commission and this case the service writer the guy who greets you when you put your car in the garage to are is earning a percentage of whatever he can convince you to have done your car that doesn't make me particularly comfortable when i'm taking my current service but that's the way it's set  there is also other people finance managers get paid a percentage of what they're able to convince yourself that is income that those people earn in exchange for their labor that their persuasive ability their ability to convince you to get has on the fact that service writers pool the number of booked hours that those guys are able to sell and then divide them according to formulas particular to the individuals does not make that into a bonus that  dealt with compel the inclusion of the book dallas because that was pursuant to a union contract you're putting us in the position of saying you take one pay analysis of one analysis for a union contract wages and that i laid out calculations in my brief the weekly stipend payable to him should be reduced let me move on as to whether that should be from an interim whether that should be temporary after hugh had recovered from his second shoulder surgery when it was fairly clear that he was now going back and be an auto mechanic again zimmerman offered procreational rehab and while he was still recovering and going through his physical college and then very shortly after he was released by the doctor helped him find a job found actually two of them one was an offer down in your area with caterpillar and the other one was up here in the far west suburbs with zimmerman i'm sorry with your page price like mr you know which shows that that he thought it is requirements that it was in the auto industry something he knew how to do is the possibility of earning money that was recently commensurate to what he was earning as a mechanic and so he took a two page price that kept flashforward from june of zero eight until january of zero nine and he is concerned that it takes  an hour and a half to get back and forth to work lots of us commute an hour and a half to work one way or the other he wants a job that's closer to home he wants a job that pays better i think we got like apps that paid better and so he is open and amenable to the resumption of vocational rehabilitation the record is unclear as to at whose request the vocational rehabilitation was reinitiated in january of two thousand  have the opinion of the expert a successful outcome because from this just two reasons that one because the more money that enough we are and the smaller the amount of wage differential if i have my nice girl and i have a successful outcome and i don't get catching and tripping anymore that successful can i get back to running and shocking well that's a better than successful that gets me back to my my same basis but the point the point is that you know freedom himself had some concerns about the job he didn't like the hour and a half commute and he wanted to make more money and be closer to home and so he bought into this really offer and whether it was there were men that initiated in order to contain our expenses can an hour exposure or whether it's you know preoccupied into it because he wanted to work closer to home and earn more money they both agreed and just because you had a good outcome a successful outcome at one level this not i submit to preclude ongoing services especially post i disagree but you can if they don't i'm going services in order to do better  any case law that says one way or the other that a second round but i submit to you that it is a good faith extension of existing law or the absence of law that says to the contrary that says you can't for example let's say we precluded coming back from us and saying they're out of business and out what else can i do what else would he do for me that would have been a recent a recent tangible reason why he would have come back to us in a completely hypothetical circumstance  if you say that there's no law that says that we have to look i sell you that there's no law that says that we can't pay and and it is certainly up to the bench chair to make that decision to say whether we're looking at this in a proactive or in a negative sense i don't think that it is fair to completely dismiss the concerns of an employer who wants to contain the financial outlay especially and as a vacuum in the policy exposure and he should have a bed the application which is equivalent to medication of damages or make a temporary so we can come back and revise this and say ok this could be another shot it we have to see if you can differential given the fact that public policy and wage differential as shifted based on what was done this time last year in springfield when they were beginning to contain the wage differential or it's that that's a reason that's a point of an objective point that i can say here this is the reason you should revisit the duration and the review ability of that without at all interrupting the situation of whether you're making eighty five for  you know much as i would love to see that happen it's not going to happen here but you can give back to the employers the ability to continue to look at this and do with they can because one of the facts supported to petition here cooperated and agreed to it said he was he was interested and three because the legislature is that legislature is that we're looking at this again and so they're looking at this i submit to you that proper for us look at  mechanic one that was determined and everyone agreed to it very early on in the case they responded hired dan minnick to help them with vocational rehabilitation and again everyone agrees that my client talk about mitigating damages did everything to mitigate damages cooperated one hundred percent and then it also did a good job there were two hundred fifty jobs contacts and talk about mitigating damages again he got a job at caterpillar a lot of it was commission he went to many consider hate i got a job should i take this and responded said no we think you can do better than we think you can get a better job and you can mitigate your damages even more will cooperate with minute second job offer go to responded hey should i take this job at chrysler i'm going to make twelve dollars an hour forty hours a week yes you should take it and he does and he hates it can't stand it it's three hours travel to and from work and he gets to do it he gets on the off he gets another day off but he never even knows when it's going to be it changes constantly but you know what he does it and why because autos and cars that's what he does best and at the time that this vocation revo taishan is taking place he has all this education bed council were firs would submit a paralegal certificate for this man's useless disguise an auto guy he's a car guy he finds a perfect fit working in the service department that fits in with his physical restrictions and fits in with his what he's go will and he's working at it he agrees he doesn't like it but he's going to do it and then he's going to start the second one what happens is bed there's a difference between that in the first round and that is that he's working full time  time nothing in minix life changes and yet he doesn't perform the same kind of services well it does at that point is simply send some emails doesn't even meet with the met him once at court when we are trying to get this case tried be initial time doesn't meet with them doesn't do anything since him unfiltered job applications some of which i point out every because one of them is in poland one of them is in texas many of them are ones that he already applied at in the first round and rejected from dean offered does everything he can in my opinion with the change in his life and that change is he's working a job they've got him that they consider to be a successful outcome those your position is no further obligation to try counsel seems to be suggesting he should continue to what i think well two things i don't think that he had any obligation to continue based on the letter of june twenty seventh two thousand and eight for many saying you've successfully completed your vocational rehabilitation anything he does after that is gravy i don't think he has any legal requirement to continue they got him a job they declared it successful folk rehab that's end of story anything he does after that i think he's not required to do he wants to do it because he doesn't like this job and because he has to travel so much for this job he has absolutely zero requirement to do anything else why because there locational rehab concer has declared  to do another round every single time there would be no end to this whatsoever and it's funny because i think there's something about that in council's brief they never objected to this case proceeding under eighty one we showed up there was there was no problem there was no objection there was nothing on the record to say hey you know wait a minute we're trying to we're trying to vote this guy still looks go to the compensation issue you mean your position to me to be the essence of this case that it was and i think it is all right i think that's why the conclusion though despite its resolve or time they just say that you know the wage differential should be changed not that it's not a wage differential and that and i think we have to look at when he's hired at that job there's no mention about any twelve hundred dollars on the table he get he gets forty hours a week he gets twelve dollars per hour there is never any mention of it to anybody to the petitioner to make it's never mentioned he interesting that the michael steele case that we both interpret it differently because i interpret it to say that when you're having this kind of an incentive bonus and it's mandatory and it must be paid to the titian or that it's going to be included in the average wage that's that's absolutely not the case in this case in this case the money that he's receiving is that the complete whim of the employer mr rupert his supervisor testified that not only do i not have to give that to him i've in the past had employees in the same position that i haven't given it we don't have to give you he's not under a collective bargaining agreement and that's what all these cases that talk about carving out an exception to a bonus problem collective bargaining brings being required to do certain work to get this money my guys not he's not this is at the whim of the employer you can be taken away at any moment he does not have to receive it and that's the difference and that's what you talk about michael steele case in that case it was just part of the collective bargaining agreement it was mandatory in this case it's not he didn't get it initially when he was hired he could be taken away at any moment they've had employees in the same position that they didn't give it to they can pay people over there any way they want to so whether it's a union play or not even pla pay i mean this he doesn't get paid for the work that he does this idea that you know work harder work harder and you're going to get more is not necessarily true he could be sick he could be out of work and he's still going to get the only i think he could be the hardest worker there he could be doing more work than anybody in that and still book less hours because it has nothing to do what he does it has to do with the people coming in and with the computer books out the hour so he might just be an unlucky guy and the only people coming in either tire changed while the other guy gets one you know transmission or something and he's suddenly booked less hours on the computer has nothing to do with how hard he's working it has to do with the general whole in the same with me as a lawyer at the end of the year i get a bonus based on what the firm does but my boss has all the great cases and i have a bunch of bigger cases i still get a bonus but that is nothing to do with al i might have worked harder than him but he had one great case that brought in tons of money it doesn't have anything to do with the work that mr do you know who's doing i mean obviously we can take it to its logical conclusion it's got to do something but i'm i guess i would argue he'd be the hardest worker there is still  least amount of us that's that i think that's the difference between if this were part of a collective bargaining agreement if this was mandatory if he had to get it if he didn't work hard you know some of the cases if you look at him the people if they didn't show up to work or they didn't book the amounts that had complained at trial he'd been there that might sixteen months isn't like the commute but when he started he seemed to be pleased with the job he did it well and he hated having to do it well so that three months after they put him on the opposing counsel them in their compelling argument to distinguish an arsenal or it was a matter of conventional right it was mandatory by virtue of the labor agreement here that was that was not mean atory it was not covered by a contractual agreement and bosses can come into us every day and say and changing your salary from this and changing your salary from a salary to a dry you're going to get a percentage of the finger cases that mr romney's been assigned to as opposed to the heavy cases it rights and was it mandatory it was not mandatory in so far as there's no contractual right to compel it but i would submit to you that you need only pick up the newspaper to find out that union workers are having their wages attempt to be chattel unilaterally in various other contexts it's not you know it's not a guarantee we have some slip in comments to make to press the street about the thirteenth amendment but it's just you don't get a guarantee even if you've got a union contract things happen and i think that it's a distinction that is not important in this case because in our solar middle we talked about the pa eighty one language there it says how much a person is able to earn in wages after he was back to work and whether you do it under a union contract or whether you do it under invention servant wages or whether you do it as an at will employee it's money you're my argument for me about why this why this should be temporary partials opposed to eighty one the fella came back to work at twelve dollars an hour three months later he was on a bonus plan if you include it in there that represents a substantial increase of money him and decrease of money that my client has to pay out but it's a change that we were able to make because they weren't the snap permanent he improved his position now through his own efforts although currently