awarded now is a question of fact or commish and i also know and recognize that it's the responsibility of the commission and not discourse to weigh the evidence when the facts and circumstances in the in the case but i also know that it's the respond it has the burden to justify its failure to pay benefits and i also know that that burden and that burden of proof requires evidence and i also know that argument is not at its end in this case the respond it failed to present any evidence to justify its failure to provide and pay for benefits this case the only have an inset was submitted by the responded in this case was the testimony of dr  page fluorite quote the commission finds that the respondent has no reasonable basis to deny benefits after dr finn tells may st two thousand and seventeen decision pay benefits and this is not survive years after the date of death they continued to deny it even after the arbitrator's findings and they have peeled the case to the commission and during the pendency of the appeal to the commission is when they finally paid benefits so it was nevertheless the commission found that they responded did not say to sleep in the night the penalties and fees correct that's what you're appealing from section sixteen it turns and section sixteen internists let me ask you a question you've made an argument that there was no basis in the record to uphold the commission's decision and those matters what about the arbitrator finding  and says coronary artery disease corpse hole mountain and the h l p which isn't a skin issue and then it says enter other and this is in bold significant conditions contributing to death condition and so to say that there is a finding that there was confusion there is no evidence to suggest that the respondent was confused by the by the specifically states that the contributing cause to the death was c e o p d so sure i guess the answer questions yes it enters into the mix in that it proves that work related condition was a cause of his that but in order to suggest to say that there is some sort of confusion about that certificate someone needed to come into the to court and say i was confused and therefore that's why we don't i benefits no one did that no one said that they were confused but certainly dr tell didn't say that he was confused about it no one from the park district said that they were confused about it and so that's really the point is you need evidence rather than simply argument to suggest well there was a confusion i mean that's fine for them to write in their grief that they were confused or in their brief they indicate that there was a question about the it and whether or not that would be admissible at trial now that's an argument but the problem with that argument is if we go to the record mr cooper no objection the arbitrator it made it and so for them to suggest that there was confusion about whether or not the death certificate was going to be admitted they didn't object to it well aside from the admissi whether or not it should have been admitted the fact is would you agree that the refusal to pay must under the case law be the result of a bad faith or improper purpose so i think to respond it's going to be arguing hey look we had this death certificate we're going along with fin talent to lose and covered that there was a missing part about the smoking history we have the death certificate that says the immediate cause of death was carrying a rest so they're saying where is their bad faith or an improper purpose under so for them to say that there was some sort of confusion or some sort of issue about the death certificate that just means we don't want to follow the law we're going to follow twice or clean it we're going to say that it was a cause is some sort of justification for not paying  benefits now no one stated that and that's really the issue judge there was no our there was no adjuster that came in and said that they were doing this based on some confusion about  it's simply argued and that really is the problem judge that if they're going to say that they had a good faith basis for tonight this war that it wasn't unreasonable and vexatious or any of those things they had to have some sort of evidence for and i know you know as is a petitioners journeys we have burdens of proof and so i know that argument is not evidence and it's never evidence and it's never going to be i could have the greatest argument in the world but that doesn't justify my birds and it doesn't allow me to meet my birds so you're just home death certificate itself is not evidence or it is evidence that survey is evidence that came in by the death certificate but there's nothing confusing about the death certificate well that's for someone to determine other than their attorneys isn't it absolutely but the commission didn't find based on the  specifically rejected the arbitrator's finding that there were no penalties and that the failure to pay was vexatious and reasonable because they awarded section one thousand dollars out penalties and so they didn't adopt that ask that aspect of the  respond it had no basis to deny benefits after dr friend tells may st deposition and so that's rich and they can't be the basis for denying of benefits because they specifically district as i said before didn't present any testimony that anyone was confused about the complexity of the case or the nature of the  the award or previous or the law of the case and so based on that what i would ask is that the words count panel responsibility to wait evidence and to underscore the fact that argument certainly isn't evidence and it's never going to be the basis for justifying the failure to or  unless there's any questions i don't have anything further at this time you'll have time to think just mr cooper you may respond members of the court mr buechler jury cooper represents chicago park district  mr view goes argument does it's based upon the fact that this wasn't confusing or there was no contribution based upon the evidence presented but there was a lot of medical evidence in this fi a lot and it was that kind of evidence that made it confusing as the arbitrator even said it was confusing the man was tree being treated for dozens you know co morbidities shall we say and it was very you know our opinion it was very complicated and as a result we had to right the case far as we were concerned there was a prior case it was day exposure or by believe in the swimming pools to chlorine gas and that was found to be eventually a permanent total disability and mr baker was collecting those benefits when he passed away the arbitrator also notes and it goes to mr buglers argument that there really wasn't anything complicated about this as i stated a nd ago it's very complicated in the court can look through it but the death certificate even confused the arbitrator a bit according to the death certificate the immediate cause of death was coronary artery disease followed by corporal manaul and h l p so as the justice noted these significant conditions contributing to death but not resulting we're saying what is the law the case for instance we are not disputing the original facts but the chlorine or about the award and what we're talking about is the fact that the arbitrator acknowledged the commission acknowledged that this was a complicated case with all the exhibits that were in not just the ones we've spoken of up to this point there were also several things that we did that you know they were they tended to ameliorate we hoped and that was one we had advanced to the petitioner in the course of this forty two thousand dollars and that is evidence that stipulated too so when the arbitrators told us and the commission told us that hey you know you're pressing your luck here we expect nothing less that and i want to the commission of all say the arbitrator in his confusion the council can you address one of isn't there a difference between what is required to be shown to get a late fee in the get penalties under one dollar thinking insurance yes and it is in the nature of a late fee so that that's why we didn't appeal that finding as to that so the park district handled this in a way that the only way they could it was a very complicated medical situation based on what the mission yes and also his independent medical examination report which stated it it didn't get into the smoking in the same way which turned out to be you know one of the major weakness for us was he went off on a tangent about smoking for forty years a sum of money years and that was when we held the dep still you know going with the i m e report until intel gave an interesting deposition and that was the end of that support and then once it became apparent to them selves opinion that you were relying on this law well i can tell you that you know i would say the best the best thing they could do at that point was just try to work out how they were going to find what was it was a payment made payment was not made and there were just payments as they want to log advances the reason payment was not made is that my client was of the belief that the arbitrator found in one of his findings that it was very complicated case and they wanted to see you know what happened in the future you try this case yes let me ask you then in your last comment didn't the commission observe that once the respondent at your company realized the incorrectness of his actions words until it paid the arbitration award and moved to year is there a difference between adequate justification or lack thereof and frivolous and meritless absolutely i don't think that the way the facts of this case came down that there situation where if they haven't paid for fifteen dollars days and this was a mistake or an error or something along those lines where they then pay that award i understand that that's it that's a but that's not what happened in this case what happened in this case was they were denying the case it wasn't simply because there was a mistake or they failed to send it shack or something got lost in the shuffle that was  inappropriate this was a case where they were denying it despite the fact that there was a finding another lower court that was a final decision that has c o p d was a result of his work activities they then went and got a doctor and hired a doctor to say i don't believe that the c o p d was a result of his work activities when that was already decided and so to say that this was simply a situation where they they were confused about things they'd specifically hired dr finn tell and he'll kind that the c o p d was not work related which is not appropriate especially when we have the law the case but beyond that and to say that there's a difference between a frivolous manner of activity and it was something that wasn't found to be true  in this case just as what they did was they didn't give him medical doctor fentanyl medical records they gave them a summary stating that there was a forty five year of smoking history that continued up to the date of his death and so the reason why dr fentanyl had the wrong information was because responded rather than give them the medical records gave him a summary of the medical records that was in correct that ninety k medical records are eighteen thousand pages correct they were infantile didn't want to read eighteen thousand pages correct whether we want to read them or not he did he wasn't provided that opportunity they didn't give them to him look at it but he didn't want  d we know that that was found to be compensable as a result of his work activities the only issue is did the c o p d contribute to his that and so to say that this is a complicated issue there's nothing complicated testified on direct examination i cross examined on page two i asked him did he have seo p d yesterday had restricted airway disease yes did those conditions contribute to his  yes they did that was a page two of his deposition and so there was nothing confusing or complicated about it that's the only issue that we have was that a cos now liable to pay the compensation which do not present a real controversy but are merely frivolous or for delay then the commission men work compensation so it's the question is whether it is then an reasonable or intentional underpayment that shown to be frivolous and so here in this case the commission specifically found that it was an reasonable and so whether it's also  doesn't matter the question is whether or not it was reasonable to rely on the evidence that was presented to benefit to deny the case and the commission specifically found it wasn't reasonable so that's the reason why i'm asking for one hundred k penalties not this is simply state that that there was a late fee or that there was a mistake or some sort of confusion about whether  benefits were paid they specifically denied the case and it wasn't that they paid the case after dr finn tells deposition and said ok well now we have the information from dr finch al and now we know that we have to pay