yes you're like the first person in my life who's asked me to do that must be the microphone there you go karen beverly appearing on behalf of christopher charles will be a appellant in this matter but there's also a cross appeal filed the issues of factually and legally tie into each other so i think that i'll probably end up addressing a lot of those in my opening comments we are here today to ask this court to overturn the decision we get to the facts here i would like to talk a little bit about what it was that judge gardner was supposed to do when he reviewed the decision he only had authority to reverse the decision of the commission if there was no evidence in the record to support findings that he was very much not supposed to substitute his own opinions of how to weigh the evidence for that of the commission he was not to weigh the credibility of the evidence that was presented that is all the job of the commission that being said let's look at the evidence and this is uncontested evidence this is if you look at the briefs that are before the court today this is evidence that both sides agree work submitted to the commission christopher charles was injured on december twentieth of two thousand and three that is agree it is agreed that he was injured when he stepped back into a popular chemical meaning solution insisting the urn to greta that he sustained full thickness alkaline chemical burn to his left foot and that that occurred while he was working and in the course of his employment with the royal continental rocks it is uncontested that records from at least  different treating physicians were submitted to the commission for review and that no one a specific lead there was a finding medically commission that none of those treating physicians found or opined that charles was unwilling they all found him to be forthcoming with his complaints pain and they found him to be credible and then you have to look at what the treating physicians did over the course of years of treatment they prescribe d m d s they prescribe pain medication including a morphine drip they prescribe a nerve block they prescribe work restrictions these are things that treating physicians would not do if there were not a credible complaints of pain is also uncontested that an act older fifth two thousand and four there was an e m t which demonstrated abnormalities consistent with a nerve injury there was a second m g which was ordered by and interpreted by d gardner issued his opinion in august he cut off that in the spring of two thousand and four and was not more specific than that so when the case was then remained it back to the commission they used i believe it was may of two thousand and certified neurologist and a clinical physiologist who actually treated mr charles for over a year so it was absolutely proper for the commission to give more weight to his testimony when he connected the ongoing complaint pain to the initial injury you see in the records and that's something that i anticipate the council is going to raise in response that there are there is a thought with dr dean and some other medical records that you see that there isn't a clear organic connection between the pain complaints will well i'm not sure that that's one hundred percent fair because there are objective evidence of nerve damage there to a m d s that demonstrate that there was nerve damage but there were also some things such as the nerve weigh medical evidence and resolve any conflicts between medical evidence that is offered by the petitioner and that the commission did that in this instance and they gave more weight to the treating physician  absolutely in the commission too just to be clear you know that was within the commission's right it was their job to do that they gave more weight to dr medina's testimony a medical assessment but there were other findings that support that the commission christopher charles testified there were specific findings that they found him to be credible there was no evidence there specific findings by the commission that there's no evidence in the medical records that any of these numerous traders  and there's at least five that are specifically referred to in the arbitration decision none of these traders found him to be anything less than forthcoming with his complaint noted in the medical records and he also acknowledges the abnormal i knew in the n g s and despite those he goes on to say that the pain had result or that the injury had resolved itself from that and the ongoing complaints pain were not i don't understand what rationally you mean nudity a specific consideration can point to anything in or in a medical record or in the the record before this court that's shows a specific doctor saying i have given specific consideration to whether or not christopher charles complaints are you know forthcoming whether he's being honest and i mean dark or come to their conclusions from what i mean i think you need to look not just at it what the doctors are saying but what they're doing we're talking about doctors that over the course of several years were prescribing invasive you know aids depriving the wounds morphine drips physical therapy numeracy and g s nerve blocks this is not something that these doctors would be prescribing if they thought that christopher charles was making it up or or was you know fabricating words after reading his pain this is treatment that was ongoing from the date of the injury all the way through the day to the arbitration there were burn specialists involved there were physical therapists involved and yes there was a psychiatry psychologist involved and these people continue to prescribe ongoing treatment to get to the bottom of it which i think really  demonstrates very clearly that they believe his complaints to be credible and believe that the ongoing test the g s the nerve blocks things like that would eventually lead to the cause unfortunately you didn't but despite that fact  confident comfortable enough after having treated mr charles for over a year to opine that the complaints were cosily connected to the injury that they were ongoing and the commission relied on that and it was absolutely within they're right to rely on that it was within their right to rely on that to the exclusion of dr blonsky who saw mr charles wants that in and of its soule that supports the commission's decision self sufficient self supporting individual who has since had to move in with his elderly her mother grandmother because of this so so for dr wants to attribute any of this to any kind of attempted financial gain by by christopher charles and of itself is this incredible which just doesn't add up you know the other side of that's where there's been no financial gain whatsoever and as a matter of fact he's lost a lot because of that us but in supports the decision of the commission when you couple that with the other findings of fact by the commission it's very clear that judge gardner substituted his own opinion his own assessment for that of the commission which was improper and so what we're asking this court to do is to find that the initial arbitration decision was supported by facts to reverse judge gardner's decision and the commission opinion i remain and based on judge my response is as follows we do not need to go through line by line and reciting everything that was presented at arbitration what we need to do is present this court the sufficient backs to uphold the commission's decision and we do that  i think that counsel makes the argument about our factual statement because counsel wants to raise the issue that there were some questions about where the these complaints were coming from we acknowledge that that's fine but our factual statement need only but i think you have an obligation to challenge your statement of fact what blonsky said and what class what his opinion was you can make it in your argument that the commission could choose with a right to know what it is you know you but we also attach in the appendix you know all of the documents necessary so to the extent that there was a question as to whether or not we were being upfront and complete with my recitation of what factored wants his opinion was in the factual  i'm just going to go ahead and because i think my brief adequately sets out the arguments that i've presented here today but i do want to respond to two arguments that were raised by opposing counsel judge is the issue that royal con the royal continental box has always stood on has been that this is not an issue of a contest of credibility that they were i understand the doctor machine opined that they were but i think what we have to look at is what is the medical evidence that dr medina cites to or that dr blonsky cites to that actually come next those pain complaints were any trader for that matter that actually connects those pain complaints to the original accident nor link prior to the event let's look at the anatomical distribution of that pain when we look at the occupational therapy records where the petitioner is complaining that he's got pain spreading from his foot to his calf and you've got d i agree so what do you mean there's no causal connection for the pain the calls the connection i'm talking about the calls all connection for his complaints at the time of trial and so if you look at that no one is disputing that if you stop it in a bucket full of chemicals that it's possible that you can you can suffer a burn it's clear that he suffered two centimeter burn it's clear that there was scarring on the door some of his foot the question is how does the pain emanate from that scar and what's the extent of that pain that would debilitate him at the time of trial let me hit you with a very important question you're right i mean the doctors even the dean is don't seem to be able to trace the pain to a specific specific physical cause or source ok let's assume that no doctor can do that and you have the claimant testifying and they find him to be believable and credible that he was experiencing every bit of pain he says he  what does that leave you in the absence of if you've if you don't have evidence that explains that the distribution of the pain no medical evidence well i was down there saying dr blonsky is saying look based on the based on the complaints as they are being described and based on the tests that i've seen which are nerve block that should have a women a did this pain but did now this pain can't be caused by the burn because of where the burning is is located pain the pain would've would have ceased using these nerve blocks and the pain wouldn't have travelled up mr charles wagon and he would not have been able to describe the complaint as he described them at the time of trial if the pain was really emanati from the area of the burn scar if you don't have that kind of medical evidence that kind of testimony from dr blonsky if you don't have the f c's and the in the evidence from from the nerve blocks that show that the pain is still there then perhaps the commission could draw the inference then that there is a causal connection the problem is is that you actually have objective medical and if you can forget about  you can look at the objective medical evidence which is the functional capacity evaluation where the petitioner demonstrated self limiting behavior where he was working far better when he was distracted the f c c was it was basically invalid because they were unable to test the petitioners maximum limits all the out see was able to tell you was what he could do it at a minimum not what he could do at a maximum and the other issue judge the judge is is that  the petitioner was weighed on side by side scales and he actually put two thirds of his weight on his injured side on his left side and that's significant and what dr blonsky basically doesn't his deposition is he says here you know right ok i've to come up with an opinion to a reasonable degree of medical certainty i think that you have to look at the actual evidence that's in the record and that's it that's what dr blonsky dots and i think in reporting on that evidence i think that complaining about our pain that just can't be verified by any medical test and pain that doesn't it doesn't it's not distributed in a way that it could be anatomic right i would say yes but i also don't even want there to be i'm not even trying to imply that there's a credibility issue that one doctor is necessary better than than another here what i'm trying to say actually is that and i if you look at the actual opinions i would say that dr blonsky s opinion yes is a better opinion than dr medina's but if you look at what they're if if you look at what they're actually saying in their reports and in the depositions what they're saying the ultimate conclusion to what their adult their ultimate conclusions are different in terms of whether there was a causal connection whether there wasn't but what they're actually saying isn't necessarily contradictory because what all the doctors are saying is we don't know what's causing this pain and dr blonsky is saying i don't know what's causing this either but when i walk in all of these tedious as has been cut off and that the complaints at the time of trial are not supported by the medical evidence and that goes back to the to the nerve blocks dr block the current order is reversed then the cross feel falls away too i just want to address one thing that that was brought up a question when i was up here earlier about whether or not  find anything in the records indicating that mr charles was milling during and i want to clarify where i was reading from when i said that there was no indication that is from the findings of fact of the arbitrator upon the fact that the e m t showed some abnormality of the nerve in the foot so again i mean and i think the questions that were raised when council was standing up here before kind of reiterate what our argument is there's a difference between there being no injury and there being no readily ascertainable direct organic link between the injury in the ongoing complaints of pain it's clear throughout all these medical records and throughout the evidence that was presented to the commission that this gentleman continues to experience pain and as the questions for five to this is pain that there is no evidence existed before this injury the commission did the right thing it was it