three three four he got laid off late there after fisher lumber i he was under work restrictions of the lifting morton ten pounds worse to the point where he eventually went to a physician a doctor hitchens in september of two thousand and eight when plaintiff cuts and low back pain right leg pain the doctor reviewed the knew turned on september twenty five two thousand and eight to that doctor and that doctor on that date recorded ok don't discomfort in the left side as well as the right side and he indicated to this person that he was scheduled for surgery december five two thousand and eight you're disputing that there was an independent intervening box were to screen is that he had an incident on december five two thousand and eight he received i mean some perform sorry two thousand and eight he received no treatment for that incident he looked at the records he reported to his doctor for surgery and  gram and he went to a doctor he was again examined by dr kennedy a physician chosen by the preacher or by mr smith and dr kennedy when he initially saat him january twenty first review the m r i study from december tenth two thousand and eight and it showed a large herniated disk which he did not think changed that much from the earlier studies from a study indicated that if there is a work related injury and then there is a subsequent occurrence and purple there was actually three separate automobile x three separate injuries he was recovering from his  cervical fusion as a result of those injuries especially the second interim he develops pseudo arthritis and wound up having to show treatment for that and the argument  work related condition plays a part in the cause of connection even though the subsequent actions be it at work or away from work they aggravate or worse in that g in the van for two thousand and six a worker fisher lumber which had been aggravated by the most recent motor vehicle accident but noted that his symptoms predated this and he already had been set schedule for surgery dr accident but that's that's not that's time off work here or he was not going to be able to work starting december five hours hours before i mean hours after the injury question here ready had symptoms in his low back in his right leg and we look at september of two thousand he returned to work with our mission and right now he was working with restrictions from his prior injury he was working with us with restrictions from prior injury he never stopped show not the break of connection change is that it's hard up you have to show he can sleep right we don't have a complete break here the surgeon saying i'm doing the surgery on the same desk accidents did we stop in a different type of surgery a surgery for the sort of arthritis it wasn't for a redo i have the fusion it's because of the weakened condition on top of the new injuries th it's not you know it's not different it's not dramatically different than resident two thousand dr kennedy said that the import required operative intervention if the motor vehicle accident worsened his condition commission ignored full and it's against the manifest weight of the other m r that they ignored the case law and bought and the case law says that if the work injury plays a part in the need for the treatment just a part and it did in this case because they're operating on the same disc if not related or work related injuries make it worse ok then the party responsible for the work injury can't walk away let's look at the case the way you're approaching the case let's say that mr smith is scheduled for surgery on december five two thousand and eight he is seventeen in my vehicle he's driving home he has a low fender bender outside of the workplace and the doctor says well now that this is a little bigger so we're going to have two different surgeries so who's the employer you're not responsible for the injury you harvest and you're not responsible for does fisher and lumber walk away from the responsibility they have because this person was put in a weakened condition you have to accept dr kennedy's opinion the one disagreed with dr kennedy because this injury he was local stands for and if if you tell us then we're going to have everybody coming up here and saying oh you know that broken or that the person had he had the fault at home so instead of the two screws that we're going to we look you know and mr smith's testimony he did say he had had some left like thing that at this point i'm his testimony was it was almost at this point after the second accident it was unbearable because i he was unable to return to accident he was unable to work and i know the source of nash for his target that he was going to be unable to work anyway because he was having surgery but i'm not because of this accent he was completely unable to work change in the condition you started off talking about of the claimants something the public the bellwether the return to work and so forth but at least of my mind i'm thinking that in order to address this question it's more a matter of the doc the medical evidence that has to be examined to determine whether or not there has been a change in the the actual physical structures change in the system as opposed to what some the which might have  what is a bit you can hone in on what you're most powerful piece of evidence that establishes that there was an actual change in the structural defects whatever you know you might be able to point to objectively well i think if you this second incident caused that change i think we need to look at the testimony of dr kitchens and doctor dr kennedy because i think they both agree i'm looking at that that's both of  definitely has symptoms and the clinical presentation are are dramatically different and i said i think you know based on based on all of that together with the depositions of dr kitchens and dr kennedy i think the true nor the commission had ever found a break in the causal chain causal chain they merely talked about activation and this case the going to find a subsequent intervening accident breaking the causal chain because there was a mere aggravation and i really don't think that changes the law the case law has always been there has to be a major clinical or bilateral on lake pain which he had not had prior to their motor vehicle accident so they are certainly consistenc work related injury and the issuing condition in didn't in this case the person was scheduled to have surgery on that disk december fi one day prior to scheduled in september one day prior to this he still had surgery on that same hurted disk after our hearts the injury in point where he had a completely different surgery because of the pseudo arthritis that the ballot in this case there really isn't a dramatic change he was on pain medication couldn't live with the pain couldn't live with his pain anymore need surgery was scheduled to have the back surgery he had right leg pain and then in september of two thousand and eight fifteen days after the m r i that was done september tenth he was complaining of breath like they're responsible they can't walk away from this and say we're not responsible because the condition is worst reactivated if we do that then what would happen again if this guy was going home after my shift that in a minor fender bender hurt his back and said you know it's a little it's bigger than ok we're going to have to do this procedure and you know your employer is no longer responsible for any of this when to have insurance you know that's why the appellate court what local when you put someone in a weakened position because of the action and they're not in m m a and this guy wasn't m m r and they become vulnerable that's the purpose of the act to protect that person one film in december of two thousand and eight and then found a change and then he did the most he did the more sophisticated host my other gram c t and you've heard arguments about this as sophistication