please the court consul my name is john campbell i am here on behalf of a b a freight employer in this case we should appeal of the last circuit court decision but in substance we believe error in this case lies with the first circuit court decision of judge novick is this court is well aware this is a case an individual had an accepted injury however subsequently suffered a motorcycle  page six fifty four turning to the evidence in the case the medical evidence uniformly supports a finding that the motorcycle accident aggravated but did not change the nature of the low back injury i i have a specific quote from dr bernstein ted in this large record so forgive me but with regard to the general point i believe it is sufficient with regard to the statements made by these physicians in acknowledg so all of this happened after we have an individual that doesn't have a full release even from his back surgery he had scheduled visits with dr bernstein said for me if we got there for a full release for his back surgery he had been back to work make a very persuasive argument for my point that there's a commingling here there's problems for both grounds for both and in the motorcycle accident was an additive factor in nature but it was not sufficiently traumatic to remove the work injury from or into the commission determines if a subsequent motorcycle accident did not sever the chain of causation so why is that against the manifest weight well i believe the manifest weight of the evidence argument is  truth is i understand dr bernstein ultimately that one's well and is still a contributing cause but that can't be defined by any medical measure of just of diagnosis we don't have we don't have an x ray or an m r i show any change claimant because he was persisting in it injurious practice tending to impair or delay recovery i need the motorcycle right so the commission obviously found that he was not and so w reason i find it use of discretion well i want to be careful to call it abuse of discretion because what i think the commission ultimately did in the first decision on march seventeenth of zero five it would get my argument in the alternative and just didn't address it because i was took my argument is based on petitions on testimony that he wouldn't come to work that he didn't think he was capable of driving due to the drug intake i don't believe he should have the luxury people on one hand refused to come back to work  i do want to correct a couple of things that my opponent said that i think are are somewhat inaccurate we have three different periods of ronald conklin's life that are under the proverbial microscope here the first period is the period prior to the work accident the second period is the period in between the work accident and the motorcycle accident and then the third period is the period after the motorcycle accident now i think that mr campbell well intentioned though he is overstates my client's low back condition prior to the work accident and understates it following the work accident significantly dr bernstein who was the surgeon who did the fusion that pre exists all of the facts of this particular case sought mr conklin on november twenty sixth of two thousand and one at which time mr conklin had no low back pain he was released to go back to full duty work on december fourth two thousand and one and in fact he did now that standing alone is significant but during that three month block of time that ensued in between the return to work in early december and the work injury in early march mr conklin continued to see his family physician dr least a month on not a single one of those visits did he complained of or was treated for low back complaints so the low back condition pre work accident is really rather benign and his heat has healed up quite well the visit that mr campbell is referring to that mr still had scheduled with dr bernstein was a routine six month out visit for the purposes of taking an x ray to confirm that the fusion was in fact solid then we have the work  fall six to seven feet off the heart of his truck landing onto the balls of his feet and then onto his box in minnesota treatment ensues immediately and it progresses continuously now during this block of time between the work accident on march the second and the motorcycle accident on april the fourteenth if i heard counsel correctly he would have you believe that the low back complaints during that block of time petered out after the first couple of visits to the doctor and that is not in fact the case as a matter of fact dr least much testified that during every one of those visits in between the work accident and the motorcycle in essence we've seen exactly and through three days prior to the motorcycle accident dr least my was referring to mr cox went back to dr bernstein for his persistent low back complaints so it's simply not accurate to suggest that immediately prior to the motorcycle accident the low back really wasn't a factor anymore it was and the medical records reflect that it was what here what is your response to his argument about the superiors practice it makes an interesting argument that you they were trying to close up but that that's really not that's neither here nor there first things first it is the abuse of discretion standard as it relates to nine hundred eighty not manifest wake and that's the global products case the smoking case  that was recently decided so the question is was it merely the writing of a motorcycle and injurious practice i don't think that that appears anywhere in the in the record as a matter of fact it wasn't riding the motorcycle that was injuriously it was getting knocked off the motorcycle by a excellent question and although my client's subjective perception that he testified to was that you know yeah i really didn't think i should be driving if you read the record carefully at no time in this record there's any physician restrict mr from driving or riding a motorcycle but my opponent's argument would be much stronger if in the face of an overt restriction from one of the physicians that says absolutely do not drive in especially don't drive motorcycles he ignored it he went ahead and did it victim of an accident not somebody who caused it but moreover my client i'm sorry my opponent argues that the commission really didn't address his one thousand yard human and i would take exception to that in the second commission decision the decision on remained towards the very end not in a separate paragraph but rather buried in a bigger paragraph the commission says and i quote the commission acknowledges the inconsistency between now but again if you if you invoke the abuse of discretion standard which i think everybody can agree that if that is the standard it can't be said that the mere act of getting on a motorcycle that one day for a limited for a limited purpose and case that was a case in which the severing of a causal connection was up held by the appellate court in that particular case you have an accident that takes place and then a return to work about two weeks later you have  mine about three months after that and then seven months down the road after m m r you have a separate unrelated accident that is that has nothing to do with work and in that case the commission denied causal connection and the well a court upheld it if you read the case closely it doesn't appear that there was any testimony on causation either way but that's quite different from the case that we have here because the only doctors who have testified in this particular case have testified that the work accident at all times remained a contributing factor i think my opponent's focus is misplaced he wants to talk about the catastrophic nature of the motorcycle accident the fact that it's a small miracle that mr conklin is still alive that's the term used in his brief i chuckle because i don't know what the difference is between a small miracle and a big miracle but in any event he's focusing on that the nature of the motorcycle accident instead of where he should be focusing which is on whether or not the work accident remains a contributing factor and on that point there is unanimity of medical sentiment and whenever we have unanimity of medical sentiment the commission does not have  license to do whatever they want and that's what happened on the first commission decision judge novak didn't just rubber stamp or reversal sure the twenty two page very detailed decision that decision i hasten to add was not all favorable to me in that decision she confer the commission's denial of causal connection as it related to mr conklin shoulder injury and said that the evidence really wasn't significantly overwhelming they had shoulder injury remained a factor after the motorcycle accident but the low back is different judge novak's decision was very well reasoned and frankly your honour's i will concede to the court that if dr mark with a k live in the i am a physician and even opined that the work accident was no longer a factor after the motorcycle accident we would not be here today because even doctor's opinion would have given the commission license to rely on that opinion and denying benefits but they can't ignore unanimous medical sentiment and that's why this case should be up to the circuit court's decision should be confirmed i think the vote case says it all and if you look closely at the vocal case the t raumatic injury that poor mr vogel sustained after the work injury was much more profound than here mr vogel was nearly healed from a cervical fusion by his own testimony he had no pain and then he has not one not two but three auto accidents which gives rise to the question of why he should have been driving and he has to when he has to have more neck surgery and everything else the other significant thing about the whole case is that the commission ruled against mr vogel so even in the face of that manifest weight standard this court said no as long as the work accident remains a factor that's the test that's what we have here the circuit court should be testimony that's the page nation on the court reporter not your age nation forgive me i don't have that with regard to my citation so the basis for reversal of the circuit court and reinstatement of original circuit court decision