is one determination of disease and occupational lung disease this is a manifest weight standard and i understand the difficulty in meeting that standard there is clearly opposite conclusion that should be rendered here than most the commission found in this case worker sensation commission made award based on a finding  is normal and there's no obstructions no obstructive disease present so we've got to take a look at what does the evidence show as to what would be the correct ratio  his report he prepared following that testing and examination noted that momentary function testing was within normal normal limits but then at his deposition testified that the results were abnormal explanation as to how he arrived at that seventy four percent figure we can include go back and going back and looking at it that he used the and yet would you agree that the commission found the ultimately the testimony of dr paul to be superior to the testimony is not counsel barry they found that's what they found i think that their finding was was incorrect because they cassell testified one takes the greatest if you view one from whichever one of those trials and divides that by the greatest force vital passage in whichever trial it is they do not have to be from the same well we don't know how dr paul arrived at that because he did not provide any explanation as to how he arrived at the seventy four percent if you take the next highest if he be one and divide it by the highest if you end up with seventy four percent that's a speculation on my part is that dr paul simply used the wrong number when he's looking at these three trials you did not take the instruction and this and this gentleman there's no other evidence in the record that he suffers from studio p t other than the proposed testimony that this seventy four percent i not efforts are the maximal results and in making that calculation and i note that after we filed our reply brief we failed to include the pinpoint types of the guidelines that we had included and our brief and i would point out to you now that those guidelines are found at  able to exhale and again the guidance provides that seventy five percent if that's the ratio is seventy five percent it does not represent an obstruction but why but why do guidelines that i've provided you take the maximum also provide that three try at least three trials should be performed because it really tries to make sure you're getting the best results because you have scenario right right that they're going but the best that the patient and it and again it doesn't have the results don't have to be from the same trial in this case is best efforts were not in the same trial are the best the best numbers so you take the one the best one out of the three for s b c the best of the three out of one so that's part of the reason why you've got to do multiple trials is it's not even necessarily coming out of the same curve and that's what the guidelines provide it we're not arguing here anything that's that's different or out of the ordinary where just play out what the guidelines provide and when these then mr beers that's thing is interpreted according to the guidelines it is not me to finding obstruction this web can i ask a question yes in a at a diagnosis of c o p d or chronic bronchitis can't the next pretty reason we basis do you know his recommendations or his findings based on his own medical experience or are the experts on medical experience totally irrelevant here obstructive pulmonary disease if you have some testing objective testing to show that the disease it's present it's not something you can just look at a gentleman listen to his chest  maybe you can see it on chest x ray although there's no evidence here that there was such a finding on his chest x ray but generally it's based on a pulmonary function testing now the only way you feel that dr castle's opinion was it any rate the commission actually cut the baby and he found each one of the more persuasive and as different just correct i think that i think that's what they  did but probably as big didn't have the evidence to back up their finding that dr paul was more persuasive because his calculation in rendering that opinion was not based on the scien that choice was not against the manifest weight of the evidence the commission accepted the fact that chronic bronchitis is one of the chronic obstructive pulmonary disease it's therefore if you have chronic bronchitis you ha records were sufficient to support dr paul f the issue of nature and extent the commission reviewed the five factors and awarded ten percent there's plenty of room in any one of those five factors to support a ten percent of war and  water ten percent is more than fair to the employer in this case so that that takes care of the manifest way question on on those issues i thought it was interesting that the commission began its conclusions the  seclusion saying the commission adopts the arbitrator statement of facts in its entirety however the commission of use the evidence different from the arbitrator i think that pretty much says what this case is about now there's one other i that argument's improper for three reasons st wants to save them it's been shown proven by showing an impairment in a function of the part of the body it isn't necessary to prove the nd half of the definition of to say here there is no argument by employer that chronic cough is not an impairment of the function the rest of your system the two has to the definition are joined by the conjunction or even want to get the job done nd all that a claimant needs to prove necessary to prove what this guy must prove under the nd prong the five factors of the boston case address the question of why the man left miami not whether he couldn't safely return considerations of the commission in dos a matter of the law to apply to all wage differential cases and surely not to all eighty two cases that affirmation was that given the facts of that particular case the decision of the commission was not against the manifest weight of the evidence and i won't take time to repeat those five factors considered by the commission in mr dawson's wage differential claim but none of them are a bar to the relevant questions here which time yet when those questions are answered in the affirmative the last question is what's the nature and extent and in this case a wage differential is not one of those possible outcomes claimed way of that possibility the dawson case is cited in and i have a question mr was sore miss webb seems to be suggesting that the pulmonary function tests control the outcome of this case what's your reaction to that well they don't in that i see the whether you actually prove an obstruction in the testing or not now i think that the arguments over whether it's seventy four percent or seventy five percent are kind of way for the court's time they're so close what difference would it make which think you pick but the most important thing is the commission in looking at this decided that dr paul's d explanation was the best given all of his testimony they believe dr paul to be more credible and persuasive and he accepted h it mr so or would that indicate dr paul did diagnose chronic bronchitis and the definition of chronic bronchitis is chronic cough productive of sputum and there's the key word productive sputum it occurs on most days for at least three consecutive months per year for at least two years in succession if history provided to dr paul is not meet the definition he mr beer provided a  history of chronic cough being present however he did not provide any evidence or any history of that cough being productive if you look back through the medical records that are in evidence there are a number of entries sometimes it's specifically noted to be not predictive and then there are several entries where there's no indication one way or the other whether it was productive so there's nothing in the evidence that supports a finding of a chronic seemed to say that on an annualized basis he was x number of months of flitted with bronchitis he told dr paul that he had a cough that was present two or three times a year for a couple months at a time and yes as far as the length of time of the cough that would meet that that part of the definition still did not provide history that this cough was productive which is required as part of the definition of crime bronchitis yet according to the american graphic society and we've cited in our brief that the citation to that  guy regarding the definition of chronic bronchitis and then this case there's just not any evidence of that you know production on a regular basis to meet meet the definition so  for chronic obstructive pulmonary disease if this gentleman did not have an obstruction he could not have chronic obstructive pulmonary disease so that seventy four percent versus seventy five percent is very critical it's not just a matter of one percent or more we're talking if he's in the normal range versus abnormal range that one percent determines whether he has an obstruction whether he doesn't have an obstruction and in commission should determine should consider and determining the nature of the permanent same you know the st factor to be considered in the commission's decision they stated that no physician  that under the a m a guides you would fall in class of zero impairment based on his testing results the commission ignore that now if the commission wants to reject that report and they can provide was require and i'm sorry your honor i did not hear the beginning of your question is the form of a report what we have is a statement by a doctor by the doctor which do you know said what the statement was in a deposition that might occur that is that is correct it was not can is written report i don't think it's required to be in the written report i think it's still an opinion based on the impairment rating which the commission chose to completely ignore so even if this is a firm i think this should be remained it for the commission to at least consider the nature and extent to consider the impairment rating by dr cassell thank you very much they will think to