the first one involves an evidentiary ruling that occurred at the time of trial where in the commission subsequently struck down the introduction of occasional rehabilitation bills on a foundational ground where in fact a trial there had been  fills was part of the final board on appeal to the commission and for the first time the employer objected to those skills on a foundational level the problem is it at the time of trial they had no objection so it's our belief that reasonableness they did in their discussion but they said that they believe you completely excluded them based on foundation and the problem that comes in with that is if there is no objection on the basis of foundation of the time of trial you can't  being jacketed sued by opposing counsel at the times of trial that's the whole point and in fact one of the notes within that case says when a proper objection is raised a proponent must lay an adequate foundation for the admission of documentary evidence in this case the services provided were not necessary they weren't getting into to those discussions they simply kicked out the entire bill same like foundation let's assume that they did it what about the argument that we confirm any basis in the record what about if we look at it  find since there was no one of them still missing well most of the mission was correct ultimately even though the grounds on which they will was a vote what about that are well it's certainly within the court's discretion i can't disagree with that but what i would say is at construed by the commission allows a chance to at least remedy the situation allows to rectify it by having mr trainers address those questions that would be made as part of the general objection because in our world we didn't do anything efforts in this and then i don't have this thing and injection the time of trial i certainly would have done that i certainly would have taken the time to redirect and make certain that you could identify piece those portions of the bills which are part of the well or this is not support the reversal of the commission in reversing those in denying those penalties if this three of this helps us in identifying the penalties this is actually the second problem the same issue the first tr this matter took place and scamper of two thousand and six at the time of that trial it wasn't disputed by respondent that as a result of the heat stroke richard had developed a huge intolerance that was also related to his work and undisputed appealed so now as we follow up and go to trial two after the first award was issued that wasn't appealed to the employer instead of providing to vocational services that had been awarded as part of  problem one they refuse instead they set up an evaluation with their own vocational specials they paid maintenance benefits for ration but in september of two thousand and seven without any justification without any identification as now with purpose to my third argument which actually is in response to the employer's argument on this we believe that the commission's decision wording further further vocational rehabilitation benefits and awarding ongoing maintenance benefits w not against the manifest wage as i did it before we already have had the two cases the first case where they would voluntarily provide book ational services and maintenance as the first to work with a world war to prove my point was supportive of facial trial want and the time of trial to him and said that there was no change in his physical condition even the respondents own independent medical examiner who had identified work restrictions that removed him from his previous line of work and so we believe that the court went on to add another sentence which has made things a little bit more confusing in their words the commission said quote petitioner should explore and pursue further possible reemployment in an indoor union painter in his future in painter it's confusing as to now they're saying you should consider indoor union painting in this future vocational outers regardless the remainder of the opinion is valid if you say he's entitled to the court g for penalties and fees because there was no evidence to support that the nile what about the of pinions of many in the videotape surveillance that shows playing golf and maybe what agreed but if if the locational daniel made it were the basis for them removing the penalties on this case then their conclusion would have been we believe mr minutes conclusions of which case no vocational services would be needed that's not what they concluded they said just the opposite  explain and we're not really services but about his argument with a sense of an overall sense of fairness you saying what i understand there now but as they came in without objection we didn't believe they're beginning to feel good about anything you want with the he had the opportunity to do that and he missed it i think the employer in this matter pointed out the inconsistency in the bill and get a commission saw that and that's why they struck the bill and your recent letter being paid by the employer the second issue you've got i believe that comes down to the credibility of titian's i believe the surveillance videos show the petitioner doing activities well outside what he told the doctors corrected supporting him getting nauseous or sick or any permanent damage to his golfing outings and in fact the last one if you look at it even if you think well these are all thing in the next day he's recuperating he got two days in a row four hours each day both days temperatures in the eighty's and ninety's so i think the credibility is shot in this matter and i think mission picked up on that are big issues that the commission states that he will bear to work with you paynter put in still please mission my opponent has argued that there were issues of credibility surrounding my client if you look at the commission decision not once was to ship credibility great they were saying even after reviewing the surveillance on that they were saying that there may have been some other things see some bad faith or something along those lines but if they could found him to be not credible after reviewing the surveillance tape when they have said that he's capable of returning before any activity that's not what they said they said we believe that he cannot return to work as a union painter unless indoors and this farce of surveillance and if you have the surveillance tapes attached to your your briefs some of the issues that i'm an assett you look at is first of all with regards to the temperatures that they're talking about the gentleman who gave the history of the temperature it's giving us st louis temperatures he wasn't in st louis in this part of the north also take a look at the time of day that he was playing the trees in the background were glowing as arbitrator open pointed out more importantly during one of the gulf outings he takes a towel from a cooler that had been sitting in ice wraps it around his neck and puts his shirt over it the short sleeve shirt you continue to play golf with a frozen towel around his too if you could only nail twelve nails without being exhausted he would have been going to texas louisiana austin all these places to find reemployment you would be talking about him total or not this gentleman says i can't work i want to work so what's you being overly dramatic with dr bill archer i agree and i agree that doesn't help his credibility but we're talking now about finding reemployment for the open labor market given his temperature restrictions that we know of work that's what the commission has the word us that's what i think the the prior wards the medical testimony even mr mini and mr prayers all of them agree he's got limitations that don't allow him to return to work