position only dated july twenty sixth two thousand and that's the same day that her doctor malik returned her to work after she had sneezed at home had been on a twenty pound lifting restriction since  she came back to work on august sixth she worked twelve hour shifts on ten twenty two thousand she worked a fourteen hour shift they were short one nurse she started seven am she or seven hours a day she worked from seven am to was and what it was a exhibit created by the act patient was used dr response that may have been misstated but ten was ten is exhibit one fifty five of the record did you subpoena the record could patients but that's in the records of the response that was rejected and it was rejected as mark in my prepared for the commission before the court is rejected exhibit did in that brief to doctor the act patient doctor have returned her to work and that is critical the most critical exhibit that was rejected by the and vigorously fought by by the respon what happened was is when they rejected exhibit was in the file ok it was not for some reason it was in the file but but when they put the record together to go to the trial court it was included in that record and also submitted up to this court as it is page one fifty five of of our court record discourse record and also based on the record issue that is whether or not the commission to leave out the evidence that she could do sitting work only by their own doctor that is key and critical her doctor didn't go that far he said twenty pounds of lifting and limited twisting and and which she asked for because of the back pain which was never authorized and she said and then she went to dr slagged sixty four years later who took all the records we took his deposition all parties took the deposition do and that you work with are side by side on one ten twenty eight and a petition testified also what she had to do the job description is in the record but also tells what she had to do it was thirteen cubicles in there and that level one trauma unit and she was on her feet and her back was friendship and and i just going in and and need her superiors told her you couldn't do the work knowing that when she gave him the records there's a restriction you can do the work of a staff member and she did it and she paid for she didn't she didn't have to go to work of case but she came back to work who comes back to work after studies and works twelve hour shifts friday saturday and sunday basically that's what she would work she did that and and  she's penalized for and then they said they had no notice on there's another exhibit that didn't turn over dated january third of the one where she said i had to actually that was another exhibit not turned over but she she gave commission made a mistake that his claim should have been found compensable but of course that's not standard review here he has an argued the only issue that really is in front of this court which is the commission makes such a continuance at the time of the trial because he was not given full access word was not given for release of the records that he claims were subpoenaed he could have been filed a motion in circuit court to enforce his subpoena if they did not response to the subpoena he did nothing and in bed to follow up on that very issue was going to spend much time with it he's waived this argument you can look at his statement of the exceptions and what you will see is a factual summary indicating that this exhibit was rejected exhibit but you won't see one argument that ron argument in the statement of  front of the commission that it was an abuse of discretion the first time he argued that was in front of the circuit court so he has waived that argument he's waived it orally and he waived it by his grief and by the request for review that he filed in front of the commission and arguments not here anymore and for him to have argued in his brief as he did repeatedly and to have argued in front of you today from the rejected exhibit is inappropriate so getting back to the issue that really is in front of us today that is it is this decision from the industrial commission contrary to the manifest weight of the evidence well the first question is what does it mean to be contrary to the manifest weight of the evidence and the test that i've always liked is the scintilla rule and other words if there is a scintilla of evidence to support the industrial commission's decision that decision cannot be reversed where did you get i petitioner had a significant variation of her condition she had a significant flare up her pain she said was more severe than it ever been before it was pain med brought her to tears what causes pain the records show that she complained of pain i had to over twenty eight two thousand yet the records also show she never completed an accident report she never reported this accident or an increase in pain to her supervisor and she says she called in the next day spoke to what the charge nurse and what she told that charge nurse was i have a bad pain i will be in today she never said i have  pain the result of anything that i did at work she was seen by her man who treating physician three days after this alleged injury that son november one of two thousand she tells dr mallory that her job required to do some lifting twisting at work she had to work as long as twelve hour shifts she said her pain had come to a point where it is really the central theme in her life it's interfering with her activities both at work and at home that's not telling the doctor about an accident that's telling the doctor about a preexisting condition that had gotten to the point that it was interfering with her activities of daily living it was interfering with her work but she never said my work hospice and that's one of the things that the recruiter pointed out the arbitrator also looked at all of this evidence  same as the m r i done in july of two thousand before our injury there's no change so the arbitrator concluded based on the facts there was no evidence of any change in the underlying condition as a result of the alleged activities of october twenty eighth but then i would say our would be sufficient to confer the commission's decision they were also went on and said that the petition failed to produce evidence all repetitive a timid the petitioner he testified that her jabber was very she did standard patient care she did charting she did work schedule she did evaluations she dealt with family she dealt with doctors there was some general testimony that her jab require lifting twisting bending but there was no testimony from her everybody hour that she and never complained to that coworker of any problems while doing the work that she was doing the only thing i could say is that as the justices hear all these cases that the back of the m r i was the same a year later clinically with the complacent pain this is the first time i don't live in one two thousand three days after that this nurse claimant request surgery and dr malik indicated that if she didn't have surgery not someone who complains she also has cases show had a prior specific injury this is repetitive trauma i was she supposed to know to report a specific trauma when she had  fact that matters not raised before the commission are waived on appeal but are what like i said mr sagan was there i only are going to just just a minute just to be specific you mentioned that in your fax your statement of exceptions but you didn't raise it as an error to be