for truck backwards entering his neck the arbitrator found the case compensable and found the neck injury related to the accident and awarded two hundred thirty two weeks  o'leary stated he could go back to work with restrictions and i think that document that was the disability document on his what the commission missed and that fact pattern because i don't think the question was was he off work for at least from the twelfth up to the time of arbitration they used that to state that the petitioner was not credible when he testified that i was off work from the fifth take off work with my doctor from october fifth two thousand  was that we had medical follow business from october first through the twelfth in which he stated he had turned his neck and pocked but then when he followed up a little bit later with the doctor throws right on a period of time he was saying he couldn't work because he getting in and out of the or truck and he was having pain with that and i think with i was there the deposition but in the deposition they were talking about it as if somehow him getting in and out truck is how he got hurt but that's not how he was injured in the records you know stayed dead and i think that's where dr gross was confused exactly why that was in his record compared to the accident and how it happened and so that's why he it's against the manifest weight he was never offered a light duty position the only time there's supposed that ok back up nobody for the respondent testified whatsoever my client never testified he was given a light duty work what happened was that the commission looked at my exhibits that had like for a work description in dr gross's records who never said that he could return back to that duty they just took dr o'leary's testimony that he thought he could do twenty five pounds lifting found a job description in my example the dr gross had to see here he could have worked that job even though there was no testimony or no evidence that the respondent offered a light duty or  off work by medical records from october twelfth two thousand and eleven all the way until he saw the doctor o'leary then went through his records and said he thought he could return to work twenty five pounds  gross's records a job description and at a time dr gross had that job description dr said he could not return to that work because he was off work exhibit eight in my in my  exhibit two slips and off work slip from october twelfth and then another off work slip and sort money back on and off work slip and i took over two thousand levon another off work slip in march of two thousand don't include the slip the set to the employer for saying he was off work from all the way to the for the trial if you just take the medical records themselves was off work from i took over twelve eleven always to the time of trial back to leave or there i mean made no opinions in regards to work status dr o'leary when pressed in the deposition said he could return to work and when he returned to work it would be under restrictions and from that date and two thousand and fourteen the respondent never offered any wor whatsoever he was never offered the job he was terminated he was never offered work after october fifth for the present even though they had the off work slip from dr gross and when they sent he didn't know what the job duties were for the truck driver so he could he had a difficult time saying well not sure what the four driver did but i can tell you right now based on these restrictions on his medical condition he needs and then the work's restrictions that we talked about a previous so there was no difficulty that he needed restrictions it was was that within some job that he was doing prior to the accident was the issue in the deposition  based on the lives testimony right yes that was the commission well they found two things one that he could return to work with dr o'leary's restrictions but they also found that he could have worked for the respondent based on a an exhibit in dr gross's records but i still think that you can't just listen at some evidence to support the commission's decision but well i mean i think we can assume that the respondent was offering that job but then those restrictions because nobody said gave the job offer for him to return to work i think you have to have two things three things one you have to have you're not off work you have restrictions then put him on light duty restrictions i think at that point if you're going to say snotty title to a t v benefit you have to have a job offer and there wasn't one offered and i don't think it is i have argued before that you can just take an arbitrary document and somebody is records pulled out say see he couldn't fill this job because he's on t v benefits i think also so  throughout the these facts a been discussing is that some of these facts are saying are facts aren't really facts it that they relied upon band and then some of the things i don't think is fair to infer on a written deposition th he had traditions or not when we read the whole thing this not exactly what his testimony is also what was just a touch on one more time as if the commission stated multiple times that the petitioner was not credible because he was not off work from october fifth through october twelfth and they relied on that is he is being inconsistent actually though the back show that dr gross took him off work from the fifth through the twelve in a separate document the credibility that i've been through the fifth or the twelfth i'm not argue if you should have been off work or not what i'm arguing is that if the petitioner relied upon a document he's not being he's not being untruthful he's actually understanding the facts better than how the commission summarized the facts because they were an actor in that situation he had a situation where he said if he was getting in and out of the for profit cross examination he was asked why would you have these two active histories explain this not to x in history one as i turned my neck in the forefront i heard it after i followed up after the accident i returned back to work and i was getting pain in my neck getting on and off the truck for truck that's why he wanted off work that was in process them a nation where it was he discussed that i think  after going through you know the eight items that the commission relied upon and finding that some of them are are just i'm reading against  o'leary's deposition or they're just out now not accurate to the facts of the case i don't i think that their ruling was unsupported by the credible evidence and thus it should be overturned and they are critter decisions should be reinstate but he says but a ha there was no specific job offer for him to return to so how do you use that one it's an interesting question because the there is no testimony offered by the petitioner in this case witness but on the point the one thing we have to rely on here is a finding that was in the medical record i mean that's what we've got so the question is is that is that sufficient when the petitioner tells his physician that my employer wants me to come back to work at light duty did acknowledge that they knew he did he did so the question is is that significant enough evidence is it perfect evidence now i would argue it certainly we didn't bring somebody in to testify jobs available and produce a letter as  from the standpoint of there was no explanation your honor of what that light duty meant but when we jump ahead and we look at what dr old leary said as the only doctor that really put restrictions on on this gentleman as far as his ability to work other than fully removing him f and if you notice at the bottom of that document the commission i think seized on this there's a remark on the bottom of the exhibit one at c sixty four it says quote reasonable accommodations may be made to enable in individuals with disabilities perform the essential functions book so when we match up the statement that my employer wants me to come back into life you do work with the fact that the light duty if we accept dr leary's restrictions if we look at those restrictions set how do they compare to the only thing we have leary and use of i don't agree with that i think many of us wait shows that that's wrong when we have we've got dr leary's opinion some three years after after the accident where he says the petitioner can perform light duty work which fits within the job description  had so even in a worst case scenario we have a description of the job functions that match the restrictions and we have the petitioners own testimony in the record to this doctor saying that they want to come back and do like you do work  it against the commission's findings in this case an inference was made that the employer could accommodate based upon the language in this job description and without any hard evidence to oppose that that's got to stand in your memphis way standard the other thing i want to  the response of his exhibit eight which is the medical document that was from dr gross i think it was in october third two thousand and twelve where he says tissue has been off work and continues to be off work and civil why isn't that enough that wasn't considered by the commission here and he made that argument the circuit court but i would i would say this there's two things to that one the commission found dr gross's opinions on the inability to work to be not credible so it really doesn't matter what that letter says because the commission because not to rely on his opinions regarding inability or ability to work second the thing i think is very important is when we look at the testimony that dr gross gave he was asked specifically if you're going to a practitioner yes i am would you defer to the opinions of the escape was this case perfect and how it was presented no could we have broken it should we broaden employer testimony maybe i don't know but that document this in the record is enough because it's particularly telling his physician they want me to come back to work they want me to do light duty can i do it in the course correct in pointing out that there is a medical record to fix my offer about two weeks in october but after that we have no off work slip no authorization for him to be off work on october twentieth forward point where they're saying the doc dr gross's and ins on the inability to return to work are not found to be credible for various reasons of inconsistency and again if we throw that out then we've got dr gross as a general physician referring deferring to a specialist by name in this case who offered opinions that the restrictions fit the job description that he did say that but what he said is that these are the new restrictions and when we look at the job description that i think that that reason that we have a situation here where the if we back up again is that what we have is dr gross who the commission found credible taking the petition off work and we keep getting into this job description in october of two thousand and eleven the doctor all said he did not qualify for it and it was off work fourteen going forward and so based on that we still don't have we don't know if the employer could have accommodated in two thousand and fourteen because we didn't have any testimony or any type of job