please call the next  commission as against the manifest weight with regard to three issues temporary total disability benefits from n n c and their failure to award families and attorneys fees also we're here to ask the court to rule as a question of law that backwards could you chilling how by failing to answer these questions assuming that they were required to do it you were in any way  that the only answer that i would have to that mr justice often is that i think it would have made the commission look deeper into their determination for with regard to permanency and temporary compensation  penalties on page ten of their opinion they said and i quote the evidence and testimony finds responds terminations of benefits not to be unreasonable or vexatious under the circumstances period as presented here so they didn't answer that question as to the other four i tend to agree with you is that when you submit questions three days before the oral arguments are hard pressed to suggest that number one they don't have enough time to answer the question especially in view of the fact that their decision doesn't come out for a month after they've never reacted to rule saying that when it has to be submitted so i don't buy the argument here formerly so let's get to the real issue in this case if a an individual suffers an injury in the employer supplies them with work within their restrictions in and there is evidence in the record importer is willing to continue to comply with those restrictions and offer them work within the restrictions and be employee return here's in draws of interest is the at the can amount came to my clients and they offered the early retirement that might find good seek it out number two meter side had any idea as to the severity of his elbow injury or the fact that it would take another four or five years of treatment he was only fifty three years old he could have worked but for the severity of his injury he couldn't work after that so my answer is no that except in the only person who says  seems to be giving a vocational rehabilitation opinion not a medical opinion because nowhere in whose testimony did he ever say that if this man were it would be detrimental to his health he would he did say  refusing work within your restriction and meeting that you do not get t t d even though you have not received research and memorize the f p separate interstates carefully here i would answer that this way the facts of this case do not support what you're saying prior to the surgery of august twenty first two thousand and six mr schorr oh did work like duty nap after the surgery of august twenty first two thousand and six he was off work  about september nineteenth or twentieth his doctor released him to one on light duty work which the nurse case manager kathleen fitzgerald very poignantly pointed out on her record of i think retired they would have accommodated his restriction number one and number two they've accommodated restrictions for injured worker one for as long as eight years so now the question becomes what if the operation they never offered him a job a better script made did announce that they were he had this early retirement he took it he filed for it and they gave it to him you got a nurse's note that say she called him b couldn't accommodate the restriction and you had the wife testimony of his boss that says wait a minute if this guy had retired we w comedy those of those restrictions we've done it for other employees one dying for eight years now we've got him we've got nearly a credibility question or is there something very important about the fact that he didn't actually seventh of two thousand and seven that was not working his doctor referred him to a doctor kalou through who ordered an e m g compared the m g of march of two thousand and seven with the m g that was done prior to his first surgery it showed significant a person who is disabled should be entitled p t d benefits until his condition stabilizes right dr conduits who was basically their hand picked doctor dr conrad said his condition did not stabilize until march thirty first of two off he continues under the care of their world on post operatively he sees the doctor in september the nineteen and the doctor releases him to work on september the twenty and twenty zero six with a one handed restructure my rights are all right ok the village offers him his retirement package on top of the third he excepts the southwest center for healthy joints it was dated  dated on the twentieth the second one was taking them completely off work which dated october to return to work until after next office visit of december first two thousand and six senior center first two thousand and six is there when we put them on one hand and we're prescriptions again he never put him on one had to restrain as he did after december first giving him physical therapy and he continued to restrict him to one handed work duties i'm going to check the dates of those restrictions for the way but the fear of the me had to readjust this guy was never ever other than for short periods of time totally taken off work so my question yes you got a nurse's note that says they told me that he couldn't they wouldn't comment on it nobody from the village was close a conclusion is warming as the guy doesn't refuse work with these restrictions i mean he could threaten the life of his employer or get fired for there but he's going to be able to draw t t d when he doesn't are because he hasn't reached that came after the fact you have to look back to the a period of time before he accepted retirement where his doctor had a completely off work the other thing that has to be taken into consideration is who knew who knew what his condition was going to be six months a year two years four years down the road and how can you unretire big village and put this to him he accepted it there was mutual misunderstanding as to what was going to happen in the warco and say will you take an early retirement this was offered to everyone in the village and it actually wasn't offered on october third october third was when he actually accepted it houses on the paperwork so they didn't hand it to him on the second so you got twenty four hours to the side he had time to contemplate this he didn't single them up to the penny count that's correct they they they offered this to everyone in the village but is as far as this employer totals if you're going to accept an early retirement package and actually go to the effort  of purchasing by years of benefits to make sure you're eligible for that he's actively pursuing that package that he's telling this employer i don't want to work for you anymore now maybe he had other planets  to the special place for that reasoning as far as this employer is concerned he's telling them give me the package here's all the money at the time i saved i want to move on walking adjusted the amount of money he would have received mr smigel above and beyond his social security in this case he was actually taking more money in that he would have taken from t t t so says that she called the village and they said no light duty cannot be accommodated at this time at this time all right and i never offered any up until the time he retire they did not then the village comes back after the fact and says oh we will in any case where an employer has refused to accommodate in good light duty couldn't they always put some money on the stand later and say oh well we live and and the petitioner could all the plaintiff i could also step up and said after the fact i can't work at all so i should get both benefits my retirement and the t t d and collect benefits at nauseum the vocational report we're referring to was based could work he could work it a restricted position not interesting lee enough oh rock there's evidence in this record this man was operated on again yes but unfortunately nobody nobody gave us the records of those doctors so we don't know if any was doctors ever restricted this man from work after those operations we do have records priem later operations and most of those records at the very beginning when he was close to working talking about his ability to work after he was no longer working i suppose there was no reason for these doctors ever to even comment because he wasn't that they have i think they it was well within the methodist way of the evidence for them to rule as they rule and it's not as if you have a tray or the commission gave this gentleman nothing he gave them eighty percent of the r and that's a second surgery or a bar from working for a period of time but the question is what is the period of time well the respondent had mr truro examined yet another i and me on september the i am not aware of it but looking at the at the cases regarding ob la it's not enough that to say someone can do some work that has to be worked out that that individual can do this individual couldn't drive a car when he drove his grandchildren around the small town of henry he could he didn't have the strength and he's right hand to start the mission he had to reach underneath the steering column and started with his his left hand he could not ride on the expressway some three hundred mile round to him it's not enough to say that go work the response did not meet their burden to show that there was work available for him to do they are very supervisor testified if he had not we would have accommodated and you've got big joe saying there was no child of a little for him and then it seems to me that there's a contradictory position coal on the other hand testifies a he's not being fully employed because he can't use his right arm and then i'm close examination it minutes the guy could use his left arm he in fact he says the reason why he says the guy is incapable of gainful employment and i don't know why that's in medical opinion but in any rate he says quote he really can't use his right arm for anything and then on cross examination retired he could have worked for us does that leave it up then to the commission is that whether he was capable in from one well it definitely is a question of fact on it but i think the fact that they the p