morning has read it but i'm wondering though is whether or not anybody had the same halting concerns and i did when i read the record over the weekend the interesting thing about this case is very simply this lady has two winters in the doctors at the company clicked restrict directivity we know the company ignores that so what does she do she one of those phony i'm going to watch oprah and sit at home oh she hates working full duty one hundred twenty plus orders and hour may june july august she has another occurrence she's continuing to go to the doctor they continue to say light duty she has to do full duty and then one has to respond to do as a consequence of that function they take videos of her going to her niece's shoe store so that she can afford her self the ability to use the phone then video which you were going to look at or have already doesn't show her doing backflips doesn't show her doing any job that's beyond what the doctors restrictions are in fact there is no  evidence to support the notion adopted by the arbitrator that she was gainfully employed and in my brief i said a couple of pieces of luggage will be going in just to ensure that i don't totally ignore that which is what the the commission we don't have discovery allegedly and yet you have seen multiple cases come up before you work records information documents have been obtained in some form or rather by subpoena first of all two thousand and four one of the two thousand and four elements was the fact that she had this complaint about her left shoulder we were talking about the right chill they stipulated to write short they paid for the bills and i know the old saw about the payment of the medical expenses and t t d your benefits is not an admission of liability but that's not an ever ending eternal determination i mean it sounds point common sense says if you're going to send a lady to examining only the right shape for pain she sees or for pain she confirms the anomalies three times she says yeah she needs surgery surgery she needs a problem and then when she finally goes to see the doctor don't because of the failure of receiving a four forty five decides well i better pay compensation right away because if i don't have to fourteen days i'm going to have penalties assessed against me the commission's findings the commissions that actually the commission didn't do anything saw by the end by the records of dr gone that she finally was getting relief she was finally getting progress in their right upper extremity i said no he didn't know about the m r i which was consistent with findings that had been evident to thousands x he wasn't aware that there was a revision that they paid for acquiesced in agreed to why was it stupidity on their part that they read acquiesced in and paid for those treatments you know we have it we don't have a system now we can have million orders you need to file a one thousand b you go there and i know you've seen these many times and you would gauge in a camera station with your opponent ready to go to trial and they surrender but under our system that surrender th in pain compensation and paying it continually seems to be ignored in this case doesn't is they give you when you were back in your in your trial days and people walked out and said judge we're going to aware even though we took his deposition wall yet in a stream of the investigative work by montel well as well as i know that there were problems on the right side and the left you see advised that they are to consider the evidence of dr phil and some of the inference is that this arbitrator makes are contrary to law they're allowed to make reasonable inferences and i understand the manifest weight issue but the manifest weight of the evidence means that it's competent evidence on both sides of this scale there's no evidence to support  of these these conclusions and inferences made by the arbitrator policy determined that that right shoulder surgery subsequent to october point of two thousand and eight is not re evidence in here and i'm not asking you to supersede you conclusions of the trier of fact but i guess continue to weigh the evidence which is in your province in determining whether there scale is appropriately manage a well written in the lengthy arbitration decision as you probably see every time you have an oral argument call this is something the commission rarely does the review the arbitrator's decision if they agree with it they don't reinvent the wheel and a lengthy decision now the arguments that you heard today are the same arguments same brief i would ask you to take a look at the briefs that were written before this court compare against the  not if they can't get the record straight on what actually happened why should we have foundered she well i think there were other things of the commissioner invited on our which we relied on this case is not just you know this is not just a presentation of saying that shoulder i think when this court looks at this entire record i think there's ample evidence to support every aspect of what this commission did in this case whether it's a laughter or the right or the nap with a left hand and yes this is a case where there's conflicting evidence findings their funnies are just the opposite of what the evidence that actually is there's a absolutely nothing to support these statements were they come from wall but when you look at dr nicholas in his reports came out sequentially and over the course of time he does acknowledge that some of the surgeries are warranted but he gets to a point where he says this individual is as good as she's going to get  entire and if you disagree with one aspect you address that as well but the reason why i'm saying it is because if they paid so little attention to one the aspect of the case in this case the right shoulder and just simply got it wrong on my  because you distribute assuming if i had to fight and knowledge for the purposes of argument your position with respect to the right shoulder does that mean we threw out the entire commission to save lives and not spend time trying to answer i think the answer to that is absolutely not one week when there's evidence in this record to support the left shoulder by needs there's evidence to support we think the right shoulder we think the t t d there's definitely evidence to support the mac and the left hand and wrist and if you disagree with one aspect of this certainly there's other aspects that are one issue and said well the commission got a prominent throughout everything they do on a factual basis i think that's absolutely wrong way to look at it you have to look at these on an issue by issue basis and in this case it's not just a manifest weight issue it's a manifest weight issue as to each point he made a couple remarks with respect to the video and act like it was a century enamelling in all the video is trying to do is demonstrate that this lady's capable of work and it did so and you obviously no one when the court receives a bit of commission receives a video you can always draw two entrances from it in most cases sometimes it's really clear but here the arbitrator looked at that video and drew the conclusions and i would say here's another aspect of this case that the councils overlooked and we touched upon our brief to reach the decision that the commission did hear they had to find this petitioner not credible in other words that they had not believe what she was saying she testified about the nature of  injuries when they all of us and the medics some of the medical contradicted that they went with the medical that contradicted that she testified i didn't mark that she was different i was just there to in the people the video showed otherwise the arbitrator went with the video and found that to be persuasive and rejected the comments so when you look at all the issues even the right shoulder issues and whether there are all related or not you have to also factor in the credibility aspect in this case and acknowledge th record no i'm not aware of that because we went through great pains to make sure there was a plastic envelope that contained it so go it well first of all let's keep something in mind magadan up until her employer imposed the economic data and she was working despite the admonition of three separate doctors that she could not work at food that she had to have restriction in the next november note of dr parikh you can see the stridency with which imposing these restrictions how mandated to ignore so on december fifth they cut her off we can't use you we don't know why but she got she had in mind no she interacted medical treatment yes she's entitled to benefits yet the arbitrator concluded from his viewing of the video they at the only conclusion was that she was shoulder you nice salacious can be argued to be not really i have a tough time making that argument but i suppose with enough motivation i could make the argument made by my opponent and the argument adopted by the arbitrator was that in two thousand and four she reports another job injury because of heavy lifting where she has a problem with left shoulder pain to visit an m r i a short period of therapy and she sent back to work so from two thousand and four to two thousand and five she's working full duty one hundred and twenty seven orders built per hour per hour think about the cycles of that in the seven a half hour day when we talk about this left shoulder she's going to have permanent restrictions way back when and that left hand middles and says she's got a continuing problems and says get an f c in that should be able to demonstrate what she's capable of doing so at a very minimum if there was some way we could be the liability for last term time benefits however doesn't and as long as she's diligently pursuing they had requirement of finding and accommodate the job i can remember the right shoulder she had more surgery so how does the average trader pick arbitrarily no pun intended october twenty eighth she's known moner in title only by the way the earlier period of the t v when they later offered she was under significant restrictions the fact that she showed up at the blue bird shoe store owned by her niece that cuts you off to feed you gentlemen i appreciate