silver the treater in dr no the treater going into evidence without our ability to cross examine it was always our position prior to the matter appearing before arbitrator o'malley and at the time we appeared before of a trader malik you'll see it's in the transcript pages two thirty eight to thirty nine to forty we indicated to the arbitrator with that we were not waiving our right to cross examine these two positions we felt that include or interpreted to include allowing opinions in versus just what the original intent was the original tent was to around medical and surgical records not real pinions as to basel connection well you're not arguing constitutional deprivation here you're simply indicating that section sixteen does not allow for the admission  medical or surgical records contain and it's right and but if if the court was to take the position that under section sixteen if there are open the ins as to causal connection beyond what medical care and treatment then i would say that if that's the interpretation then that section is unconstitutional did you make that argument i did i did in my brief and in the you will see where i have indicated to the arbitrator and we made  i have no problem with the medical records going into show what the care and treatment is that's what the purpose was but my inability to cross examine those physicians and their opinions and you will see when you look at the arb decision he relied on a to whom it may concern letter from dr now as to the issue of need for medical care and t t t he had there are multiple reliances on the letters that to include that as medical and surgical care but most doctors will testify if you ask in the deposition or you ask him in a deposition i have to give you a diagnosis before i can talk about the conditions so well i want to be clear about what it that that's not what i'm arguing i argued that you can't include in it and you can't take my due process rights away allowing these physicians to give opinions as to the material issues in the case  and cause a connection on the on the left need we agreed as to the right name ok we were disputing the causal connection between the left because of a two year gap in care and treatment we were also disputing the extent of t t days before we got to this hearing we had a series of medical opinions and that reports the person did have an injury and december eighteenth two thousand and thirteen we didn't disagree with that he gave a history of falling on his right shoulder in both knees he was initially treated at concentric for a period of two months pain drawing was done right knee only complaints to the right knee he was released to full duty by doctor now only had findings to the right knee no fighting still left knee or right shoulder and he wrote to to whom may concern letter saying i didn't see this person until june but he was disabled from february now that decision never said that a party waves its inability to cross examine adverse witnesses if we take that to an extreme if we take that court argument the way you're interpret it and then let's think the situation wait let's say i get stopped for  drunk driving or one of you could stop for drunk driving a police officer puts me through all the appropriate test uniforms and i you know i was struck right should we then have the ability to it's better off for us to have the police officer on the street protecting us than t have him spend all day in court proving that i was struck everybody has a right a constitutional right under the fourteenth amendment guess what if you're subject to something suspension it would be something records can take place just like your letters far as my conviction ok where i go to dr silver and contradict his testimony because when you look at dr silver's records in november of two thousand and nine when he saw him a year after the incident he said there was no problem with the  knee was fully healed and he took that position for two years until after he got done with doing surgery on the right knee and then he says you know it must have been over use because we didn't use it he  that came from letters that he had in the file with the medical records counsel put into he subpoenaed the medical records and dr silver's medical records there were these letters advising him as to his opinion on causal connection so you had all that produce continues to take the deposition right but he said at my cost and there's nothing in this statute there's nothing in any rule of evidence or case law that i'm familiar with what i have to pay the cost to bring on his witness and prove the case if there's any case law there's any statute says that's true then yeah i was wrong but why should i have to pay two thousand dollars to prove up his case why is that not an opportunity to cross examine because you're a asking me to pay for something that's his witness your honor he's going to produce a witness i should have the ability to cross examine his witness his son he had the ability to cross examine any one of my physicians if he wanted and  examine and i'm not prepared unless i pay for it i'm not required to do that by any statute was dr carlson dr carson was my independent medical evaluation employees records and medical records he found that there was no causal connection on the left he said that the person was able to work until he had the surgery i agreed to be stuck for the surgery that we were disputing i paid for the surgery my client paid for the surgery on the right knee he was off and that surgery november of west which is a very interesting argument what about the rest is ok the rest of the case your honor when if you feel my due process rights rights violated which i don't know how you can i think the court decided that inability to cross examine he released them to return to work full duty february of two thousand and nine he found dr down in the neighborhood dr knabb examined only complaints to the right knee only findings to the right knee he found he may have had to the left like that's the year after because we had this dispute as to need for surgery counsel and i agreed to go to a physician who we book respect dr bush chose dr bush joseph did an evaluation of this individual and he'll pined that surgery would be appropriate in this case but that the petitioner was capable of working full duty in a full duty release up until the point in time he had surgery i lived up to my commitment i accepted the surgery my client paid for the surgery we paid for the t t d for the surgery from nov thirtieth two thousand and ten to march twenty fourth two thousand and eleven march twenty fourth two thousand and eleven dr silver said he's got this left like problem when you look at dr silver's records dr silver's first saw november of two thousand and nine or only problem right knee no problem left knee no findings to the left knee throughout the course of his care there was no findings to the left knee until after we're done with the surgery then dr silver writes a letter saying that he injured his left knee also in december of two thousand eight hundred of what his findings were w initially saw him in november of two thousand and nine and said it must have slowly developed now that's an unbelievable statement because when you look at the records dr bush joseph said he asked a multiple times you have any problems your left  answer was no he saw five physicians no problems with the doctor carlson asked him on multiple occasions you have a problem with your left knee now if you accept his argument that was slowly developing if it was s developing he would have had findings over the course of those multiple it was the mc in two year period what happened is we've got another degenerative problem which dr karlsson called it and now he wants to treat the person for the degenerative roughen the problem the commission or rewards that even though the ivory trade or agreed that it was only at the right lake the commission awards that now i'm up to one hundred weeks of compensation which is over one hundred thousand dollars so my inability you know it's clear that if you don't think my group process rights were violated the same it is against the manifest weight of the evidence and should only be the right mike which we pay for the surgery should be the twenty one weeks of t t t and show i could go step by step but i think i could convince the commission or especially if the opportunity to try to convince the commission how inconsistent his opinion is that only as based on his records but based upon all of the other physicians who saw and i could say dr you've taken the position that the so many developed if that's your position then that would mean that it was a ready there was a process that began where is there any evidence of this process beginning and continuing up until the point of november or march of two thousand and eleven it's the same with dr now i could take his records which they relied on and say doctor how can you say that the person was disabled when you were in their february of two thousand and nine when dr cohen an orthopedic surgeon saw young and had no finance the condition could have changed over the period of time and when you saw him on june i could have established  his findings were not only wrong on t v but it was limited to the right leg i had the right my client has the right just like counsel has the right just like the petitioner has the right to cross examine any physic to get the basis of their opinion and try to discredit if you can what their conclusions are that's everybody's right evidently thank you personalized this case and quite candidly to me as to why but rather than deal with those invectives i'm going to stick to facts first of all this mr mekka roski knows since he's a great beard in this practice and been before this forum many times as well this process tree down state section sixteen even prior to the two thousand and five i'm in this was a very broad based section of the act and it pup i long as it's been in the form that it is where it contains the language that the records shall be admissible what about any further proof as evidence of the medical and surgical matters state of their brand how long is that statutory language alive first obviate the need to have a simple and summary procedure this gentleman gets injured in two thousand and eight and the almost two years goes by while we go through various issues that are again are not on the record council seem to the two channel channel the brain of me and the commission and a few other individuals with regard to some kind of early sets agreement with bush joseph or whatever and then he believes states on the record i agreed to pay i i didn't realize counsel had that kind of power with regard to argy instruction that is edified me to his standing with regard to that respondent and i'll take that into consideration in the future however that being said the question is simply this if mr make a well ski as the arbitrator suggested during the preamble to the actual taking of evidence in this matter back in wheaton illinois many many years he could have subpoenaed dr silver he could have subpoenaed dr no he insists that it is not a right it is not a broker he it it's almost an outrage that his client would have to bear the expense of that well section sixteen in its multitude sections and verbiage contains provisions where this really arbitrator has the power to assess and told the costs for a myriad of issues including witness feet and you have seen records where doctors who are called to testify live especially if they're an adverse witness will be queried as of the amount of time they spent with the process really is a nonstarter in a red flag and mr mackerels key in my experience and for other cases has always raised this issue it has uniformly been decided it is not a violation of due process have you choose to ignore your ability to get to the crux of the issue which you so elegantly are you would be able to destroy on cross examination then it seems it's a reasonable expenditure by the respondent of the statute provides in case law says you send them a witness fee and the mileage costs happens over there all the time and then what happens is there is a debate an argument a colloquy and all kinds of debating going on with regard to the course dr cohen's credentials this past histories experience and his attitudes with regard to workers compensation is and before you this morning so i will speak to that even though i have multiple anecdotes that i could share with you and compared to the eminent doctor c every discipline in medicine that i have encountered in thirty nine years the legacy is that ever they have come to understand they have come to learn night even we are appropriately then in order to forster a relationship with the insurance company to clarify the job if you will is one doctor recently testified it was the same a nation when i  deposition is so that we can aid and value the adjuster in what in fact is the physical condition what's the proposed remedy and why it is your liability well they don't say it's your liability what do they say this is related to the event that occurred this is related to the injury that occurred this is it related to whatever doctor silvered write me letters he and i didn't communicate  got is his charge could be perfectly honest forgive me for stepping outside the record for a second i was astonished that he was having such an open communication with the adjuster extracts from each of the medical records documenting this man's left me complains from the very beginning of his fall off those stilts they definitely landed on both names those are questions tough job being you you may read this evidence and you individually may say dr carlson made the most exquisitely eloquent representation of his opinion as to why that left me is an outlier to this case you may conclude that as an individual and when you're a trial judge that was your problem but as you sit here and i know i'm singing to the choir to evidence is for the commission as justice kaufman i'm sorry he's not here this morning once asked me sitting right there i was standing here and he said well mr alexie they get a guy and you get section allowed into filing pleading with to come with the arbitrator of the commission to command and direct that we take deposition dr naaman dr silber he avoided that at the time of trial before we even started taking evidence the  process argument as red herring if there are any no questions or questions thank you very much for your time and nothing was in the sixteen is only the show care  treatment it doesn't know while opinions and if you look at the transcript page through twenty eight to thirty two i put it jack to the record so i indicated to the arbitrator why i was objecting to the records you'll see i made the same objection when the records were in or just the consul to suggest that i have to put his case and she thought those doctors are here is witnesses very adverse to my position on the case for him to suggest that i have to bear the cost of two thousand dollars to take those depositions or whatever the charges would be there is no statute that says i have to do that putting aside the this issue about who should bear the cost of  proposed what and so as you indicated that you raised an objection specifically what was your objection and if you identify the specific records and what was the remedy that you requested ok i requested that  not be admitted into evidence then i once dr silver and dr knot all being yes i said if the only thing that those should be submitted for is medical care and treatment i'm not waiving to my right to cross examine those physicians on the issues of t t d a causal connection i made it to page argument yes i did make a dramatic presentation to show exactly what my problem was that doctor so over that doctor now wasn't they weren't under oath i put the report on the stand to say you put them under oath you can't put a report under oath i can't ask a report questions i can't cross examine proof to put his witnesses on i had my witnesses he had the opportunity if he wanted to cross examine to require me at any time when i am made he could insist on the deposition of miami doctor i have to to cross examine dr knot i have with zero opinions i have the right to pick and choose whether or not i'm going to raise the question of whether or not i want to cross examine if his records were merely in and i would like kids records merely in for the purpose of the fact that multiple letters that dr silver sent to the respondent not i request we would know or have anyone be treated by dr silver not at all requests but he sent letters trying to get them to pick up the care and treatment those are opinions  report and that would be something that you could key on and move to bar at the time of arbitration run right in his position that was that i subpoenaed these under section sixteen so they all go and my position was no they don't all go away and i have the right to cross examine the doctor on those opinions i'm not waiving it i raised my right to cross examine and if you interpret section sixteen the say that opinions could go in and