i like to think that we were scheduled for the very last argument of the entire calendar because this is this is actually saying this case i wish that the five of us i would say six just such and you have been invited although i will i'll be enthusiastic ok we have a case where we have finger tendon injury and the right hand he was eventually the claim it was eventually recommended for finger fusion the curveball is that this particular claim it has a claustrophobic condition in agoraphobia i believe is what was his psychologist referred to and so a finger fusion isn't really possible because issues would arise where he would try and break the fusion and so that's really a nonstarter from a treatment perspective eventually he was released and i think he was given twenty on the jurisdiction which preclude him from going back to work with the response we do have a section twelve expert who says he is capable who will do the work so there is a as to whether or not he actually requires this twenty pound restriction either for dr venter that's turned around and so we have the psychologist also testifying statement you cannot have this finger which should presumably allow him to work full duty however it doesn't stick the finger permanently so he can take it off when he wants to take it off we have a situation here where the claim is refusing to do so and his attempts to go back to work  were not conducted with this point we have see that he was years before me was done without suite so naturally i'm sure the finger was swelling and painful so there's two issues that i'd like to address first is the issue of whether or not he can actually return back to work was showed in the f c his psychologist third doctor recommended that he try and return to work in full duty capacity while wearing splints so we have three doctors that call into question the restrictions that are are provided but i believe that's correct lol i think you're using yeah that's correct you're using a double negative your honor i'm sorry i was highly volatile that's i understand and i think that is what our contention would be yes there is no restriction there's no lifting restriction outlined protective spore so he would have someone to patients with out of swan so and i guess the way that i would read that is there may be some limitations naturally there would be some functional deficit intended in his finger however it would not be so great that would preclude him from returning to work in a full duty as well who said that dr vendors testimonies that he could before he could return to work in a full duty capacity that's not what i mean the arbitrator know specifically noted this testimony when he was going through his both great analysis right that's correct and you're saying that the manifest weight of the evidence is against that particular binding of the overcoat that is our position yes is that the arbitrator's selection of the quote in this particular instance speaks general to the to the function in the right finger however it doesn't speak but i don't know if it's is inconsistent as i don't believe they're directly in apas he the doctor is saying that there would be some functional limitation yes but the doctor is also saying that this functional limitation would not preclude him from returning to work he could still lift enough to go back to work and in those cases if there is some functional limitation due to pain but he's still capable of returning to work this is what permanent partial disability is for specifically is to compensate whatever permanent partial disability might be left in the finger and that's what we would ask the court in this case is to remand this case back to the arbitrator for those findings since i believe that would be our deed of the act of there's no mention of one thousand in the arbitrator's decision however it is a dispute it doesn't necessarily go to the to the issue on a to know basis if that makes sense i think i might be refuse to return to work because he refuses to use the split dr hutchinson who is the claimant psychologist testified in this put it best he described the claimant situation as if the claimant were to be sitting in a plane or a train and he was unable to leave that plane or train it would trigger his agoraphobia he'd be unable to cope with the anxiety grow too high over the claimant is very capable of taking hard trips to travel because he's able to control the of very significant part of the tree and his work injury cause and become anxious and more depressed to find him turning to work in some way simulate a fusion of the index joint helped a lot with the symptoms interestingly although his anxiety disorder does not allow him to have the extremity cassatt or otherwise immobilized the splint which he can take off when he needs to does not seem to create the same leveling of anxiety so the claimant's own statements to his sore p x urgence mirror that of what dr hutchinson is testifying to is well he's ok as long as he can take the splint off when he needs to when the anxiety gets to surgery but i understand in these circumstances it's not necessarily it's a nonstarter just as i would say that the injurious practice is not utilizing this point in attempting to go back to work and this is an issue of reasonableness and the arbitrator did not address whether or not it's reasonable for the claimant to refuse to put the splint on the defendant or i'm sure the plaintiff respondent was authorizing this point we wanted him to do this he was telling his doctors that this was a great to he the splint was used so greatly that he actually needed to order a second one because it had gotten so dirty so this was an issue where he was using this when he was continue to use in his daily life he never attempted to go back to work and when it came time to go to trial he was asked specifically when you wear this point it's supposed to stimulate simulate if usually doesn't help at all he answered it does not in his follow up it doesn't help you his sentence was it more comes from the fact that it's not reasonable for him to do this if he can who want to go to trial requesting full facial rehabilitation and maintenance benefits because he refuses to use the splint and lies about his them the psychological condition that he was diagnosed with where's the proof that he was not wearing the splint his own testimony not that he was not wearing the splint but not wearing the split because of his agoraphobia you're saying that he is wearing the splint and he's using it in his daily life and it helps him greatly and the anxiety this does not create the same level of anxiety is what he told his doctors and then at trial he states that it does give him more anxiety and he refuses to wear it for that reason so our position is he's lying he says he actually can wear the splint he should be wearing the splint and it's on reasonable for him not to do so of the finger injury i think the most important point is that the respondent never offered any like duty to the petitioner with use of the split and in fact instead of doing so what the respondent did was fire the petitioner that's one point and i and i think it's critical because there is some back and forth here with the court about whether or not there's any evidence to support this idea that refusing to use the splints is somehow  to try to use a splint in his job or if it had been offered to him and that sort of thing so i think that sort of pushes the side of the whole argument but on the merits of the argument the first thing to keep in mind is that the purpose of the fusion was to remove intractable pain intractable pain and that's in the record at page six a website dr cobb recommended a fusion of right m p joint to resolve intractable pain and when he didn't have the fusion intractable pain was not resolved the use of a splint was not evidence in the record that the use of the splint would resolve the intractable pain while he was making wearing the splint trying to do activities but there's never been any talk that this point would somehow fix in some way to reduce the serious pain that was going on and  essentially there isn't any basis for not including the f c e here dr cobb himself who is the treating physician who did the first surgery which was this gentleman cannot have a fusion he's the one who ordered the f c e and he's the one who said that the f c e was valid he said that you said that dr cobb who is now treating physician that on all the issues but let me rephrase that i get the sense that counsel has pretty much acquiesced most of the issues that he raised in his brief which is that  he said that is treating doctor confirmed the petitioner could do more of his restrictions provided for when equipped with when again i didn't hear any argument about that and i think that that's key because the  the idea that he could have done more because he had a splint on is not substantiated in the record to say that it doesn't say what his restrictions would would be with the splint may be true but also we don't know to work would you and i think i've argued extensively here that way and he never had an opportunity to work with it respondent give it to him and secondly that there is the issue of pain would not have been dealt with and there is no development in the record by counsel for the respondent on this issue of  something i think would be safe for me to say i would like a blanket retainer of all the issues that i have i've put before the court in my brief we're all the way we are yes oh yes your honour's  i'd like to touch on dr katz testimony counsel mention that there's no evidence in the record that there would be change or there's no evidence that there would be a relaxation of which stricture ins by his treating surgeon if you were to wear the splint and there is on page two sixty three of the record dr cobb very specifically says that if you weren't aware this way it would increase his functional limit it would decrease his functional limitations and increases functional capabilities and that's in his testimony that's his answer and very quickly the issue of all pain your honour's i don't want to confuse the concept of functional limitations and pain there are about at this point you know thirty five thousand claimants a year now filing that state they're having some sort of pain and that doesn't all mean that they cannot go back to work in some form or fashion having pain at the end of a work day is different from not being able to perform your job this is a case where permanent partial disability should be addressed and determined and it should be it because it wasn't it should be the job of the commission and there is no reason that this claimant with the use of this point could go back to work in some form or fashion it is not evocation rehabilitation to do so