hangs a notice mostly here about fifty five year old utility worker three of talent normal who have been working there for thirty two years and injured is right elbow may twelfth two thousand and five we eventually settled that that's not it issue in this case with regards to the elbow we knew about it you complained about it what's at issue is something we didn't know about and let me just repeat if i could these are the portions i think from the commission's majority decision in the commissions to set the commission said with regards to notice now this has to do with the carpal tunnel right purple tunnel with regards to notice and i'm sorry i'm reading from page eleven of the commission's decision with regards to notice it is apparent from the record was following the petitioner's elbow condition and bus had notice a petitioner's carpal tunnel syndrome diagnosis before any physician rendered causation opinions on the subject thus because we knew about an elbow we know about the carpal tunnel and then flipping over to page fourteen of the decision in that sent they criticised us this sense i should say arbitrator lindsay criticizes it saying the majority finding that the respondent was quote following the petitioners overall condition is not supported by the record there is no evidence in the record indicating how and it was on the town of normal was following the petitioners helpful condition secondly even if respondent was aware of the petitioners treatment records for  e condition and thus presumably was following his care there is nothing in those records uprising responding to work related carpal tunnel accident injury or claim third finding respondent had notice of an accident because it was following a course of treatment for another injur surgery but that was all he couldn't have told was fine and he had a work related carpal tunnel playing as it was not until it will seventeen of zero six that he wrote a letter to his doctor about carpal tunnel and you know the only notice in the record i'll submit i mean i know counsel may argue that there are things in the medical records and i'll get to that in a minute but the only thing in the record in the transcript about notice is this little  wrist and hand complaints answer i stopped in a distribution and think robert miller and john was there i mean i told them i had to have sort of surgery yes question ok and approximately when did is it that you told them that you had done the surgery all right did any doctor take you off work i wasn't working but i couldn't do anything with it and what doctors did you see for your hand and wrist just told dr norton dr weiss ok so again he came in and this was for his elbow and somehow this is supposed to be bootstrapped onto this notice from the elbow is supposed to be bootstrapped is notice on to the hand also what do you make of the nation's finding symptomatic for carpal tunnel syndrome and and later in a second exam report from dr weiss november sixteenth indicating feels carpal tunnel syndrome was an incidental findin has to be no i mean it has it has to do that yes you know how the words what happens for example if you take this reasoning what happens if on if dr weiss found that there was no foot might have been interviewed with regard to why why even do exclude out if you're not concerned about and i guess i'd ask and ask your honor what is it specifically and d report that he said he was he was looking at mr beale for carpal tunnel i mean we knew about his elbow and that that's the whole thing we we knew about the elbow i guess i guess anything incidental that comes from that exam we're supposed to know even if there's not a finding of a problem we're supposed to know about it and that's the whole thing i and well notice and the benefit of i'm leaving in two manifestation an accident i suppose because that that obviously that triggers notice and part of this is is trying to normal we weren't aware just by watching what he did as utility worker that he had carpal tunnel never complained of pain in his hands unlike many cases where it's just the nature of the work  for example something falling on a guy's foot day after day after day if the employer knows that perhaps there was an accident on we don't know that yet carpal tunnel just because he was utility worker it prejudiced because we we didn't have a chance to see him again after our doctors say there's nothing wrong with his with his hand we don't have a chance to investigate he gets the surgery he comes to us to say that he gave us notice he gave us notice somehow that he came in and ordered his shoulder i still think we have to i'm sorry my shoulder is elbow i think we still have or sell the problem we have to rely on the elbow notice in order for you to make the the jump that well i guess i guess with regards to this evening about it we have to regard we have to go with the elbow nose but if you want to rely exclusively on the  records for notice then the medical records tell us that he didn't have an a problem but we should have known that he did it it's it's something i think it takes a jump it takes a jump from speculation to knowledge and we weren't prepared for that jump and i don't think the act is is fair to make that kind of a rationale for that job may please the court my name is lauren gray and i represent mr beale the employee and we do request this the decision of the commission in the district court i'm going to address the issue of notice you it's interesting that that part of the transcript page twenty nine is a leading question isn't it did you ever advise your supervisors of the city about your own wrist injury in the answer is it fires them tell them totally problem about and he said yes who did you tell about your wrist and hand compliance and he goes on to tell them about what he actually said which is that he was going to have surgery in the elbow  so it is a legal question he's the answer but it's not him saying yes i told him about my hand complains i have him complains in fact he explains during his testimony that he never really had him from employer and when counsel mentioned the case about the known facts that we're supposed to have noticed from known facts what are the known fa guess we can talk about the speculation of what we knew but what are the known facts that he was going to have the surgery the elbow that he was getting examined from his hand that didn't show anything are we supposed to know from that for example i mean if everything's in  dr wayne request to spawn a section where we seem a nation that initial examination of dr wayne was conducted on october twenty five two thousand and five thereafter she received further treatment from her own physicians and was  referred to dr thompson she was approached by her employer telling her that she had to return to work full duty without obstructions on august ninety six she tempted that in up in the emergency room after which on october twenty five two thousand and six and after that we proceed to trial requesting that the benefits be awarded for temporary total disability for the period of time that she was off from work shoulder surgery which funded knew that the condition was related at arbitration they conceded that the right shoulder condition was related that dr let his deposition on january twenty ninth two thousand and nine six months before  i moved to admit bills into evidence there was no objection to those bills i filed a motion for penalties for the nonpayment of those bills in march of two thousand and nine we want to arbitration in june of two thousand and nine yarb that they raised up on them and they specifically remarks in the majority subpoena and while the commission concludes that the respondent waived the choice issue of arbitration based on its failure to object to any of the medical expenses waiver expenses because there was forfeiture but the sued in the same breath they turned around and said but they were on reasonable in with all being the payment because of that reason point of view of the employer at the time the denial is made not whether they have waived the question and it's not wavering waits for are it not forfeited the issue i'm review for failing to argue that my client's request examination with dr mil me be postponed to a later date and she attends the examination this is the third section twelve examination she's going to i requested benefits because we insisted she go to this exam we want another exam right now instead it's oh can you reschedule it and yes they do that you schedule so there was never any refusal of my clients or to not  statute that sets forth what we are required to require everybody's first position every in that chain technician every in that chain emergency room and then when you get beyond the chain it's only allowed if it's a great