counsel my name is kevin elder i represent the injured worker charles stevens in this matter this is a repetitive trot from a claim for injuries to a right elbow and right shoulder he was a union carpenter that specialized in dry wall injured were made not that must not prove a single button or grab or lift caused their injury they must merely prove that due to a series of repetitive motions that the injured body part was worn down or he wrote it over time i don't think anybody would dispute that isabella under it well i'm going to try to convince you that their reasons were not good your honor but yes that is the crux of this case and to be an arbitrator who saw all the witnesses  lengthy trial he founded wrote a very nice thorough middle of the road decision he did not give me everything that i was seeking for my client he gave me a way to last claim but he didn't base it on the wages that my guy was earning at the time he based it on a middle of the road projection it was a very well reasoned arbitration decision by a very well respected arbitrator and as you gentlemen i'm sure are aware that the climate work comp climate has been very different the last three or four years and and our governor is really on a path to to eliminate repetitive trauma claims he hasn't been able to do that legislatively so what he's doing is he's doing it by appointments and the well the arbitrator also makes the factual decisions and then you're right it's the novo review for the commission and so right now as you've indicated it's kind of work comp is a bit of a political football and getting special scrutiny and so i went down to one on a good decision with a neutral commissioner that was a defense attorney and i think that's where the case was but i want to tell you why i believe that this case is this decision by the commission i believe was against the manifest waiting to happen and i am well aware of the burden that i carry in trying to overcome that that standard i have never been the appellate to this court i have lost numerous cases that involve factual decisions that i have not troubled this court with but this is one that i really hope and i know that you justices will take a good close look at and and let me get right to the point  in all all skip the background on the case you gentlemen are well aware of it really as justice hudson pointed out it comes down to hypotheticals and dr garst was provided a hypothetical that i believe was very largely met by the testimony of arbitration there is no way for us is practitioners to perfectly express a hypothetical that is going to completely work with the evidence at trial people are nervous they forget to add things they they forget what things weigh and so it is very often in fact i'm going to say i've never seen a case where a hypothetical given to a medical provider is exactly match that arbitration we have to allow for the gray areas of life and i believe that my hypothetical does comport here with most of the evidence there was some difference in weight but look at what look at how the commission tortured my hypothetical in the math  can tell you one thing you do not ever want the commission to build you a structure because your walls will not have any studs and so the commission in and just tom and i figured that you would get on me about this one piece of evidence that i really should have put him was i should've gotten much better testimony from my guy and the independent witness about how many studs how they're spaced out and i freely admit that that is on me i intended to give that information and somehow got sidetracked at trial but we because of the lack of specific evidence on that we don't throw out common sense and that's what the commission did here you're saying that if mission fell if your hypothetical of or not by the evidence if you're saying whether  two hundred feet or feet of arrival of the one hundred fifty feet you're saying what's the big deal right well what i'm saying a little further than that your honor that to do you say that my hypothetical wasn't wasn't accurate because of the math they did they knocked it down from two hundred studs to thirty eight studs and that is a big difference but the truth is that if we built a wall with only a stud at the seam of every forty eight inches they wouldn't be able to run wires through there the the wall would plum tree there's no way so why are we white the commission took apart my hypothetical based on facts that they are not facts they are there so they speculated that the walls would have no stu in so that it is wrong and with their decision is based on speculation or conjecture then i would submit that no reasonable trier of fact would found that these walls were built without studs and that my hypothetical fell short the worst of it they said that my guy didn't do production drywalling and that was the other part of the hypothetical about production drywalling well about twenty five percent of his time on the job he did do dry walling and it was more of troubleshooting and problem areas because my guy was a very experienced dr waller but that hypothetical so i'd like you to ok so those are where maybe where the hypothetical doesn't quite match up with the testimony at trial but the in the very next paragraph they say how dr adler the independent examiners opinion is much more persuasive and please look at the two things that he based it on he based it on a written job description that was submitted first that listed inaccurate weights under played the job description he was given your honour's didn't say anything about framing about picking hardened fireproofing out more he requested a job video responded provided him a job video that the only two witnesses and arbitration said oh my goodness that has nothing to do what with what we did it wasn't production drywalling they were oh well that no there's no causal connection oh sure because you were watching finish and supervisor dr wallers do a little light duty jobs so we can throw out the job video the doctor at larry's opinion is based on and then his  description the written job description a piece of dry wall they said wait seventy eight pounds well absolutely not there is evidence in the record of both of the internet and from both my witnesses that say that those pieces wait a hundred and twenty eight pounds so all of their weight so if dr at larry's opinion was were persuasive it is based on evidence that was proven to be completely irrelevant to this job so if the this evidence that he bases his opinion on is irrelevant his opinion has no foundation and you have to throw it out so then we're left with an opinion based on evidence that was proven completely irrelevant stacked up against my hypothetical  is i'm going to i'm going to estimate in the range of ninety percent accurate i can't make it completely accurate and so i think what happened here your honour's is that the commission understands that repetitive traumas cases are not favored right now by the purdah ministration and i believe and i'm not calling anybody dishonest i have great respect for all three of the commissioners in this case but i believe that they desired an outcome and then they went back and they looked through my evidence and the record is that a cherry picked up certain parts of the us that that's exactly what they did so that they could come to the conclusion that they needed to so i would submit to this court today that there reversal is against the manifest weight of the evidence it is not based on any evidence that i can see a reasonable trier of fact coming to so i'm asking you to prefers to reverse the commission decision and reinstate the arbitration award and give my client is wage differential this is a man that is now making fifty an hour and he was a union carpenter he's only fifty two years old this this is a life changer for him so it's we all have our jobs and look at has anything to do with the job that my client and the independent witness described it once you you decide that those bits of evidence are relevant to this case that you have to throw out dr at larry's opinion and when th favorable causal connection opinion from cars by giving him false data now on the hypothetical so that the prime or had to install two hundred studs per day when the petitioner testified he said he never and stalled that he he never he never installed that and the company reduced the quarter to one hundred feet of well space to apply st pivot point the first screw makes the pivot point then you line it up and you do that however mr newman you agree that defies common sense maybe you don't know anything more about construction in the commission but i mean we know at least hypothetical said two hundred so the hypothetical instructs the doctor that he did twice as many as you actually did so would still wrong even if your honors math is right ok thank you their commission is still right on their promise t office space and showed some of the men installing trial on the framing it showed installing to worse it showed installing locks on the doors and it showed installing a ceiling now the ceiling was  was tracks installed in the floor in the ceiling and they were putting the stuff between the tracks that's another point that the tracks that were already installed in the foreign seeming would give structural support to the walls so it's untypical in that way to your honor so yes it's a different type of construction that they did in this particular that the results are no i don't think that really bears much on the result because of the fact that was looking for a specific thing he was looking for where there's heavy overhead work and the petitioner prime and mr stevens did not testify that there was frequent heavy overhead work the only real overhead work he talked about was when he scraped the fireproofing out of the top track but he was only working on the top track half of the time his work on the bottom cracked the other half the time he's working on the bottom track he scraping below shoulder level it would be less than thirty percent of he said it was on top of the forty top about thirty percent of the time so it's not frequent and even when he's working on the man lift on th they have to measure how far from the last studs of the current stud they have to measure from the top to the bottom they have to cut the guy on the bottom has to cut the piece while he while the guy on the bottom spring he's the guy in the front is preparing to install it at the top and they have to screw it in then they have to move the man left so the task of scraping out this fireproofing material is only a small fraction of the job not a big fraction of the chop and the other point i want to larry's opinions are not based solely on the job description video a lot of it is based on the actual physical findings in this case doctorate lurie concluded that this individual had degenerative conditions and his elbow and shoulder dr murray concluded that this was a systemic problem because of the fact involved more than one joint and in these two joists that were involved  involved more than one compartment off three compartments in the office and two compartments in the shoulder have this degenerative arthritis worse governance established activation that existed in the with the well if so but it didn't that's what fight to he explained that you know maybe the person had some discomfort while he was walking but it's somewhere to a situation where someone might fall and fall on the way to work and break a thing or when they get to work if they're typing they may have some discomfort but condition because of circulation there's not enough circulation to adequately support the life processes of the bones so we had bone flaking off that's where the loose fight he came from th removed in his surgery so it's not a typical repetitive trauma type injury it's a totally different type of injury it's a consequence follow it up with any further testing so there was a lot of compelling evidence that there is something going on here in this man that is a systemic condition that is not work related condition of bill think in addition before mr stevens started working with r g in april of two thousand and twelve he was under treatment with dr mustafa if you'd been there on march third and january second of the same here he was couldn't for alpo and other general body aches so he had the problem before the time of work that he's trying to blame it on so those are a series of facts that have nothing that have nothing to do with the video that you are asked me about that support and corroborate dr it were his opinion and our reasons why the commission relied on that lurie and not garbus the commission the claimants prior counsel misled dr gars they gave him false information he based his opinion on false information dr dhar said his opinion was based only on a general feeling he did not have any medical literature to rely on he did not rely on a textbook he did not rely on a published study of any kind it was just a general feeling the commission was within their rights to say that dr carson opinions are not credible on the are well qualified and who have opinions on the matter what's the commissions made that call it's a call to this honorable court will not reverse on should issue a review and for credibility garst opinion was deemed by the commission not to be credible because they felt it was enthused by a false hypothetical propounded by the previous trials for the claim so there would then their rights is the claimant frequently lifted one hundred twenty eight pound sheets of dr off the claimant when he testified said he never did production trial on that job he just did patches repairs so that was one of the reasons why the commission discounted and reversed the arbitrator  besides nobody was trying to fool anybody on that again at laurie stress the medical findings three compliments in the elbow to come on it's on the shoulder that would not be caus related to an occupational injury and be a systemic arthritis and that's why he found the note there was no causal connection that's why the commission relied on him and you i pray will affirm the circuit court hide that in the brief he was unable to straighten out his right arm bum paid somebody two weeks over a year period fall like guy around they never caught him straightening his arm or doing anything that he did that he said that he couldn't do the medical he had a ruptured bicep tendon and a partially torn rotator cuff those are caused by our right as a ruptured bicep tendon that's an injury that you usually know when it happens and my guy had absolutely there is no evidence of any prior right shoulder problems whatsoever before he spent a little over four months working up he said most of his job fifty to eighty percent of it was over head heat forty five percent of the time he did handle dry wall in i can't imagine that handing up a sheet of one hundred twenty eight pound dry wall over your head while another guy grabs it and gets it in place if that's not strenuous overhead work according to dr ablow and i don't know why we would believe a word that