worker's comp is getting four hours a day regular pay or he's put back into the original state prior to the removal he was still he was he was still in that state he was getting four hours of compensation you know that p program correct correct office workman's comp program that's correct ok so when he's reinstated he's reinstated back into the air force their first search paying them four dollars i mean for the four hours and compensation for the remainder it's also undisputed that a day after his rule the department of labor had to determine that mr howard's wage earning capacity was fifty percent and that he had reached maximum medical treatment it's also undisputed that mr howard looking at a period going back or at the day he was he was terminated this ruling tend to come out but it's evidence of his abilities during the relevant backpay period periods which he seeking back employee while i was working on trying to figure out to what extent the employee would serve in the workers comp i think out of the way to look at though i think it's likely that the department of labor didn't know but that would be irrelevant because the question is really whether  february two thousand and seven by the time of his removal which is of course months later he still has some trouble on the job and is working working sort of in a fifty percent four hour a day capacity and to get the w c p benefits during that time fra is corresponding with the department of labor providing on a kind of constant every couple weeks basis evidence it's not a condition the don't wage earning capacity is it departments sort of the next step in that process when the  specifically obviously broad remedies that are available to employers in the back pay but when you're talking specifically about the pay there is a regulation that preclude this is an agency may not include in the back pay calculation any period during which employee was not ready willing and able to this is a one to one reimbursement in fact congress's scheme basically indicates that the agency sort of it on in section eighty one forty seven the agency reimburses a form based on what pays out for workers comp so this isn't really i don't think it's coming out of the coming out of the air force but it brought this to the air force is ultimately paying the compensation that's going back to mr howard in some form or fashion yes however the agency as a matter of that he was generally came back to work and five or two thousand and seven was struggling working a reduced schedule and eventually had applied and received workers comp at the four hour level and that was where he was at the time of this removal and he applied he obviously had pursued the matter seeking a fifty percent wage earning what i'm trying to figure out and did he ever get any worker's comp before that november twenty one two thousand  were at some fifty percent disability during that entire time and so unless you can prove to us that you were real really still permanently disable to that level and during that fo doesn't want to give me the money they're saying that unless i can prove otherwise mr howard was fully functional and so therefore now it's on you to make the whole air force what would the air force do under those made whole from anybody you've got nowhere to turn that very well may be the case how and i realize that that's a very unsatisfying answer however the important thing is that an employee is entitled to as much pay or as much rel evidence shows that he's entitled to and so when when this employee came before the air force and failed to was asked to but failed to prove her produce medical evidence substantiate that he was in fact ready willing and able to work during the ba regular tory matter proponent from paying for periods where the employer is not willing ready willing and able to work and then was and he the only evidence in the record was that he was in fact disabled now i mean could prior to filing of the things he is asking to do your honor is coming back in her second bite of the apple and to come back and put in more medical evidence or something to support the claim that he is ready willing and able to work but the reality is the rectory fit he presented to the agency and then brought up to the board was one that was devoid of such proof and there's certainly no reason that someone in these circumstances should get a second bite in the apple when he's already had a fair opportunity to make a clean to the agency but all all i see