know who you may be please the court counsel my name is valerie pilar and i represent the employer talent professional transportation the employer appeals from only those portions of the commission decision which it of age and over family taipan for the employer in two thousand and three after working for the employer for a relatively brief period of time he injured his right knee while in the course of his employment he was eventually prescribe the right knee replacement surgery and his doctor recommended that he undergo a concurrent left knee replacement surgery so that the surgeries could be completed at the same time during their surgery employee developed a blood clot and also suffered from multiple panic attacks according to the hospital's medical records mr pike had a history of panic attacks at the conclusion of his care mr clarke was released returned to work by his treating orthopedist dr shankar as was the employer's examining physician d each of these doctors released to perform at least sudden to rework employees on expert dr fletcher also released form sedentary work and f c e showed capable of perhaps working at even greater levels than sedentary employee however felt he was completely incapable of working and his job search therefore consisted of scanning the papers he testified he particularly scanned the sunday papers he never applied for any jobs that he reviewed in those papers the employee didn't  introduce any evidence from a vocational expert regarding debate with a bill ability of jobs for someone of petitioners experience education etc the employer introduced the testimony of mr david wall a vocational expert regarding the availability of a stable labor market to an individual such as mr clark mr wolfe noted that mr clark had a long work experience and very skilled jobs as well as college education and just in the context of a labor market survey identified one field of work which was an automotive automobile dealership cashier that mr clark could perform easily with his sedentary work restrictions was in your opinion mr i believe it does your and i understand that there is a concern because you found that there were no transferable skills but it will run the ball a little but he did that was a general overall consensus utilizing his skills as the late as the air traffic controller and then his subsequent work with the weather and then hispanics perience the hundreds will call them because he does identify and unskilled jobs position in which there is a stable labor market which is the cashier position and again mr gold was not providing a comprehensive vocational effort he was only providing a labor market survey for a limited field of work to demonstrate that with very little effort to share could have matched his prior wage level and a position that was clearly within his age experience education w any place in the job market where it might find a job yes or he provided and pete identified and those leads were provided to mr clarke flooring those night automobile dealership positions and mr clarke did testify that he at least sent resumes to those mine and he didn't get the job while he was he sent he did not get a job out of those nine correct but in the whole six months or nine months between his full between his release secretary work by his own physicians and to date of hearing that was his entire job search in terms of active jobs he did no job search at all i'm his own all he did was follow up on the nine leads that were provided through the labor market survey and the record does not show that he ever requested any vocational assistance either mr clark was making a relatively low wage  being were found to be causally connected i returned to dallas and for that concluded fisher had failed to prove that there was no reasonably stable labor market because he had provided neither a vocational expert's testimony nor had he engaged in an adequate or even meaningful job search accordingly arbitrator dallas and awarded sixty five percent loss of use of the right leg and as to the medical expenses i would trigger dallas and found that there was no way to decipher what percentage of the introduced medical expenses pertaining to the right leg which was compensable and the left leg which was not accordingly he just essentially split the baby and awarded fifty percent of the medical costs that were introduced into evidence and the outrigger computed that is eighty eight thousand six hundred thirty seven dollars and sixty five cents employee filed a review of this award as to the per minute c and the amount of medical costs and review the commission agreed that the record was completely devoid of the information needed to accurately assess which medical costs were possibly connected and which was the result of the unrelated injury or the unrelated condition to the left play i mean the commission actually used the words to void of sufficient evidence accordingly baby man did to the arbitrator to take additional evidence thereby giving petitioner yet another opportunity to meet his burden of proof i don't remember manner was actually heard by or stated in his decision that he reviewed all the records and awarded only don't knows cost that he was convinced were related to the right leg and he increased the amount of medical costs awarded by approximately forty five thousand dollars i mean here to the commission looking at the exact same record that it previously found was completely devoid of sufficient evidence now seventy determined that the record was sufficient to warrant medical costs and confirm to support the employer appeal the decision of the commission asked to both the permanent total disability and the costs of medical care to the circuit court which the merely affirmed the commission's decision we understand that manifest weight is a difficult burden to meet and that is why we are appealing only the two issues in this case that we believe have significant bakshi will fundamental errors with respect to the word permanent total disability the commission awarded those right per minute total one is to show him unsuccessful job search the others to show that your age training education skills abilities restrictions etc i have sufficient to sufficiently limiting but there is no reason to believe stable labor market and of course with now recently how they're generally that requires the testimony of a vocational expert petitioner did not have a valid chap search i don't think that one could argue that remark it instead of the commission engaged in some kind of weighing of how much petition of time he was disabled and what were his really skills and when he retired in a very those of number  yes your honor but you can be employed without transferable skills there is a level of work that is sufficiently i'm skilled that you know simply a high school education or certainly a college education can qualify one to be a cashier where you're writing up work slips in adding up number one doesn't necessarily need transferable skills one would argue that an air traffic controller by definition would have very few transferable skills other than perhaps computer operation because almost nobody else in the that's what the commission trying to do and i would respectfully suggest that staff commissions function the reason you have a vocational expert testify to that is because the vocational expert will know what the job job situation  too graphic area for example david will testify that there will be in his report indicated there will be a ninety percent increase each year in cashier positions available and make a key area that's not the kind of information that's within the purview of the average mission or there jack just a way that kind of expert testimony whatever japp openings how many of them are there is a growing industry or a dying industry what is the range calculation what are the range of physical abilities to the care if your position is the quote unquote well known brands of the labor market is that right i mean it's one example griner again this was only a labor market survey it was not appropriate not a vocational expert this was not a vocational rehabilitation plan in which we could only find one jobs this was simply a labor market survey to give a snapshot of one piece of one part of the labor market to sell that there were jobs out there that he could have considered while he was so what's the branch with you might find a job as a carer sure that's all it takes and you might find that done right i believe your honor that me look at cashier positions cashier positions are involved in every aspect of american life wouldn't buy it if your couldn't qualify as someone who had a third grade education from an english speaking country someone who was so incapacitated that they were not able to stand for extended periods of time or who have to sit and stand every ten minutes i mean there is no question that there is a difficulty in finding a job when you have restrictions and it was not a part of his testimony he could only stay in for short periods of time  minutes on good days he could walk hundred yards on bad days he couldn't walk at all he would not at all part of the instance yes that was his testimony your honor but that was certainly not the restrictions that were imposed by any of his doctors that was own self limiting testimony dr shank compound that he an excellent functional result but very subjective complaints every doctor released him to at least sedentary duty which means that you can sit for extended periods of time and most of them found him actually capable of doing quite a bit more and you have a situation in terms of evaluating the validity of that testimony where this gentleman is actually going to receive more than his family or for the rest of his life tax free by making himself into a permanent total why wouldn't he have incentive to make himself as seen as impaired and disabled as possible in the context of this proceeding of course the mission i vocational expert testimony and the words adequate job search do not appear anywhere in the commission's analysis they just themselves kind of inserted themselves as the vocational expert and decided that in light of all the facts and circumstances found him in a white light medium category but noted that he couldn't walk more than thirty feet at a time without a rest dr fletcher the only occupational medicine doctor who examined mr clarke who was mr clarke was referred to by a surgeon rehabilitation counselor are retained by the employer david wolfe submitted a report and testified that he had no transferable job skills also applying to cannot return to work in a driving job with the employer is also the contention that all these factors together supports commissions finding commission stated that due to the mr clarke's ages lack of transferable skills and current physical restrictions and condition that it weighed heavier against finding a pla it was a job for reduced pay to during additional income before he qualifies for us for retirement and he suffered significant injury which prevents him from going back to match up or becoming employed again given the multitude of factors in a recently stable labor m result he scans to papers for jobs that he would fit into due to his his known physical restrictions imposed by stockers and his own knowledge of situation has not been able to locate employment again he is an individual and of sixty four years of age and can carry a significant health issues and physical restrictions and so many of these catch your positions are not likely to hire someone at position so i think you falls into the definition of someone who someone would have to prove that the their want to gauge the recently does job search or that because his age education training experience and condition cannot find a job at a recently stable labor market  together that he did not he cannot be expected to find a job in a recently stable labor market and we feel that per the manifest way to understand it that the commission well is that commission time said that evidence needs to be taken to base an award of medical expenses cases taken back then to the arbitration level and  time on in his opinion and on the record it was stated that pursuant tune agreement with the respondent employer the petitioner of the employee cements a transcript of evidence on arbitration his record on which a decision is requested now that record period or what was new we're all in this position we submitted the evidence deposition testimony medical records treatment itemized billing statements our position is what more could we up on review of arbitrator jerde honest decisions explicitly noted in their decision that the award of medical expenses perpetrator giordano's decision was supported by the medical records that the bills were itemize and noted procedures and charges that you have a traitor compared to seven transcript so is our position that the arbitrator corrected itself and found that the record was not lacking and there sufficient evidence in there on which to base a decision which is the typical evidence is used in most  decision was requested in that situation what would more could be offered other than the records of treatment died my skills for those that treatment andy deposition the treating physicians the guarding the fields for such as security administrative assistants those are the kinds of things that are beyond the purview of the commission to weigh itself they should have had an expert saying yes those jobs aren't out there or no they aren't and it was their burden of proof to meet those first two criteria and i represent you first person what occurred unfortunately he's in the hospital so he's not here but it is my understanding from him that there was no agreement that the bacteria before i were treated dallas and was going to be the whole record before  because the arbitrator of the you are traitor made the statement in which he says pursuant to the agreement with the employer the claimants admits this transcript of evidence on arbitration as the record on which a decision is requested as to which medical services were reasonable and necessary cetera so it sounds like there was an agreement that that would be the record that the decision would be made on you're saying there's an ambiguity that didn't happen that way but is a reading that shows us anything different and no there isn't your honor and i would say what we are saying is exactly that that there is an ambiguity that we agreed that that was the record of what was already done that would be used for the next set of hearings but we never concurred that there would be no further evidence and in fact we had no power it was the commission who said we need more evidence the parties would have no power to undo or usurp the commission's direction to  procedure we don't have the authority to say on the commission's wrong if you anticipated presenting additional evidence there was an appearance in front of the arbitrator i mean and then you all of a sudden you've got a decision did you find anything that wait a minute we had more evidence we thought we were supposed to get to file more of the file didn't know you're going to be and i believe that was again i wasn't participating in this process but i believe it was because we had nothing from petitioner and then apparently we just suddenly ha decision we would anticipate that the titian are would be moving forward to articulate and counsel said what more could have been put n he took the deposition of the trading doctors that would have been easy to say these physical therapy cost but they have been the same for both these perceiving the treatment was exactly the same for only one like as it would have been for two and additionally your honor i think we demonstrated i won't repeat them the number of clear errors in the records including the nara psychiatric care that nobody has ever said was caused by related to the work accident in fact the only two accepted conditions are the embolism and the right knee all of those costs are included that are clearly clearly not related to either a right knee or an