please call the next day injuries one with involve his toe one that involved a shoulder each of which led to surgeries and from each of those he was eventually returned to work those are net the subject matter of the bill is before you today how ever they are a part of the record in this case is all three cases were tried together we are here on a case where my client had a subsequent injury after returning to work through his lower back for which there was and suing medical treatment up to the time of trial we could spend a lot of time here today and what this case is all about concluded that would standing how they got to an award included the petitioner has sustained a substantial physical disability as a result of his work injuries his treating physician also efficient or has permanent restrictions which prevent him from returning to his employment if you take just that one fair and that one explanation finding conclusion or whatever physical demand correct question was posed the employer and it's different than does he have physical yesterday i have no problem agreeing with the doctors slack commission made this statement but then we get into the reasonable inferences that they got into where the commission said this director made a mistake when he relied on the f c wasn't totally conclusive the news that we're this old this doctor didn't know what he was doing and he relied on the f c a and didn't and didn't do anything more than that and that was passed on to the next guy and then there's the inference that the next that actor started accumulating these mistakes and then it was passed down in a vote rehab person and the negative inferences that i've said are  reasonable inferences are the first factor slick didn't know what he was doing he knew this guy for eighteen months he knew who the results of his f c e o and that it was past that i do want to point out something that i think is very important and that's why i say the first two cases are part of the record even though it's not here those are not today there was a prior functional twenty zero five when my client returned to work from the whole injury in the shoulder injury and he didn't pass that functional capacity evaluation oh there was some varying degree of effort in there and there may be a little question however the so you're left only with the f c you report that's the only evidence they hear after they rejected the two doctors and then they concluded petitioner has permanent restrictions which prevent him from returning to his employment around and says yes a key and now you have no evidence in the record of diminishing of earning power so you can't get a wage differential the only thing you're left with is are out in the us would be gave you a thirty five of very very strange position to be had by understanding the question correctly the statement from the decision says he can't work can't work readers present job that's correct right presenter so he's got to take another job but then the way you're reciting it you're saying the commission says but he can work right ok i don't i disagree with it the question now becomes he can work what it no doubt about it the other the problem richard riordan is because your theory of the case was he couldn't work at all you never bothered you never read or do so would you but the question really before us if we can go back to where i started today by saying you have a stipulation sheet that says that mr lovato was disabled at the time of trial you have this recent recitation from the commission saying it prevents him from returning was one point but now the only question and i don't disagree that he was found to be able to do sedentary employment physical standpoint we still going to get to the question is he capable of obtaining such  well he only has an eighth grade education or somewhere in the high school i mean we start from there he's over sixty years old so that leads to mr blumenthal and it which by the way his not challenge in the evidence what we have from mr conway is there is no statement that says mr lovato can obtain the jet it only says that there are jobs that are head yes go do that but there is a third one and that's the one i rely on and that is expert testimony and in this case we have expert testimony from steven bl that going out and trying to do is out of surgery would not be might be fruitful and vocational rehabilitation for this man at his age with his condition his education his background would not  but i do disagree that mr kind ways evidence is evidence that mister lovato can obtain any of those jet because just saying that jap is is available in the market doesn't mean that he would be hired and there's the part that's missing from the respondents catching these claimants in a catch twenty two well we specially on i disagree on that point i think that it's possible for a claimant to make an argument in the alternative  in person it's going after a permanent total that introduces evidence of wage differential is doing your job for you because he's introducing evidence to undercut his own were yes to show what he would have been earning at the time of the hearing had still been working in the city and there is absolutely no evidence of that attorney would offer the fallback to a wage differential should your firm total case fall short i think what i'm here for  and i don't know that there's a finding that says that term total and wage differential are ball weight wages lost cases which would then be subject to the  it was earned at the time and then learning is what's the proper point in their brain for this individual well i think i think my my fallback in this argument was not a request that you eighty one says the comparison has to be to be between the average amount which he would be able to earn of the full performance of his duties in the occupation in which he was in age if in time of the accident and the average amount which he is a burning or is able to in some suitable employment or business after the accident so it has to be as your opponent suggests what he was capable of that there is a wage differential here then i asked you to read me and of the commission for them to make it terminations and i think that's the proper way so you're saying that that range of sufficiently will work which while we may put up some other evidence and we to the can weigh evidence whatever it is this is the most responded and say