good morning your honour's my name is edward hennessy i represent illinois tool works the appellant in this matter this case is kind of bounced around a bit like a pinball so let me restate the course of this case a little bit for you it was tried in two thousand and five placed in issue by petitioners counsel that morning was the nature and extent of his condition the arbitrator ultimately denied his request or prayer for wage differential finding that he did not prove the element of impairment of earnings or what he might be able to earn in suitable employment that was appealed to the commission the commission modified the decision as to penalties and various other things but ultimately affirmed in adopted that finding and that rejection of wage differential instead there was an award for  lake county the judge at that point reversed and remanded the case and it's that's really central of what what we're talking about today as it is my client's request that you that this court consider the propriety of that reversal and remained we believe that judge the circuit court judge judge mccaskey on the first turn of things improperly applied the standard on review we believe that he simply  substituted his own opinion for that of the commission and particularly he did that on issues he doesn't give much to go on and we have an order from god from judge mccoskey from march eighteenth two thousand and nine there in the in the preface he says he states that the decision was against the manifest weight of the evidence but then it goes on to state that the court finds that the plaintiff petitioner met his burden of proof regarding wage differential and that all evidence supported that condition that conclusion all evidence what is he considering the only thing the only element that was necessary to prove wage differential that the arbitrator in the commission found to be lacking was impairment of earnings the only on evidence that was offered a trial regarding that was number one the petitioners own testimony regarding his job search and number two the testimony missioners vocational expert mrs miss susan and timber arbitrator abaci expressly found the petitioners job search to be invalid he stated so in his decision that decision was affirmed and adopted by the commission particularly with when there are when there are issues of credibility at issue of question of fact remains the de novo essentially in essence the novo review by judge mccoskey was improper and for that reason we asked fifty three year old croatian immigrant who came to the united states and worked in only one capacity for one employer his entire career before he was injured he was a machinist operating at the time about nine different machines making a pretty high wage and a heavy duty capacity there is no question whatsoever from the medical that this gentleman could not continue in that capacity after the surgery not only is treating physician but dr ed goldberg section twelve i  physician for a response to a crime that those permanent work restrictions prevent him from returning to his former occupation dr goldberg agreed that this gentleman still needs additional treatment by way of physical therapy work hardening and such and the backdrop of this case is that all the relief under the act was the night here by this response they that night accommodating his permanent work restrictions multiple requests for vocational machinist yet this insurance carrier denied the vote never prepared a written vocal and never accommodated them never did anything to assist him into making the transition into alternative employment consistent with the light duty work restrictions that he was given so the only issue that went up to the commission was whether or not this gentleman proved up impairment of earnings with two tenets of eighty one require a change in his capacity to changes active patients as a result of his incapacity that was clearly established and addressed by the arbitrator and the commission but in rubber stamping the arbitrator's decision the commission without comment affirmed the forty percent man as a whole war and never looked at we want to weigh the credibility of susan and burke i assume the trier of fact always has that opportunity to do that but there is no dispute that susan edinburg testified this gentleman did a proper job search a ballot job search between january when they terminated his benefits and february twenty eighth when he obtained an alternative position he looked for light duty jobs within his restrictions sue in burke testified he found suitable employment use the contact at the old job a former employer who offered him a likely because ition in the new position so that what was the wage was able to earn the new position with the new tradition was eight dollars an hour he was earning fourteen hundred an hour as a machinist in a heavy capacity so when burke said well that's a suitable position and that's what he's earning in an hour but his own capacities probably somewhere in the range of he stays in that in that industry to twelve eight to fifteen that's why the eleven fifty or right in the middle of that range is the figure that was used by the commission for the wage differential whether he's eighty eight an hour which i argued or he's at eleven fifty an hour to his testimony he looked for jobs within this new light duty capacity that late duty capacity prevented him from earning that fourteen hundred dollars an hour as a machinist and i submit to you this gentleman without a vocational assistance without any help that's required under the act and despite his situation culturally less than a high school degree without any of billet he's here in the united states to work for any other employer he found suitable they knew with the facts were and they turned around and said this is not a sufficient job search with a commission member just that whatsoever they just rubber stamp the arbitrators of work my point is that he's not even required to do a job that was consistent with his new restrictions the restrictions that he had to not allow him to return to a fourteen hundred dollar an hour we're seeing him but that's not the question the question is what could he or and the questions answered with susan  somebody worker at the new position at c m industries he testified what those requirements were for the right to due simply position so when burke testified that although we went in at the low end at eight bucks an hour if you stayed there is very capacity would be somewhere between eight and fifteen an hour so that a little bit about what about the argument that undermines the efficacy of the opinion eight and fifteen so what is it that's pretty broad range of them well i think i think one of opinion is credible is that he went in without any experience in that industry that is something the industry at the low end of it if you stayed within that ability and he had some experience he could expect an early capacity in the future somewhere between eight to fifteen so what specific dollar amount and what the commission use between eight and fifteen how do they pick up the number where they used eight which you earned three twenty a week or the used eleven fifty which is the median between the eight and the fifteen or the use the fifteen the point is he's incurred look for but the petitioner testified to what jobs while marc ecko was dreams sam's club he was very specific as to what jobs you look for her testimony is relevant from the standpoint that she said having found a job consistent with that  there's no question we look at this record that the testimony regarding the only impairment is on rebuttal it's not weight it's not a he prove it or did he not prove it between his testimony between the medical evidence that clearly shows he's on able to go back as a high wage machinist and between two enbridge test we regarding his ability for earnings it's clearly receive an impairment of earnings and it's clear from the backdrop of denying him all of the benefits that would have helped him transition perhaps a higher level of earnings were denied and that's why two sets of boundaries were issued against the responsible by the arbitrator and then by the commission when judge mccaskey decided this case he made it clear it was the manifest weight of the evidence standard of review that he applied and he said very clearly all you have and it supports the conclusion that there was an earning impairment the supreme court is addressed that that having proven wage differential that's the preference over a schedule eighty two loss and that's why i believe decision was in here by the commission initially why the circuit court review regarding the manifest where the evidence should stand  without a doubt judge mccaskey gave credence to testimony and evidence that had been deemed unreliable by the arbitrator and the commission why was of him because he's a well there is exposition of that she didn't take into consideration all kinds of things that putting the fact that he had a high pain supervisory job at the employer pre injury and he didn't look for any work that was that was comparable at the point she knew of she didn't know how many jobs  he had looked for the type of business to see it directed his applications there were numerous deficiencies that he a numerated in his decision with respect to the job search a noted that he testified that he looked at fourteen different places could mention only four and there's no evidence that he actually submitted applications furthermore none of these positions that a he applied for were comparable to what he did before he was use a supervisor the testimony reveals he was just a supervisor in control or in oversight of twenty employees and so he takes a lie to the assembly position for eight dollars an hour and is asked to accept bad as evidence of suitable employment remind the court of the president that that's not  he's able to it's what he's capable of earning not what he is earning that's what we're looking at and ultimately the arbitrator found there was insufficient evidence to make the assessment as to what his earning capacity what that loss of earnings was what the impairment ever since he said the arbitrator even said even if i were to accept that this was a valid job search which he didn't but even if he were he couldn't put a number around and then the irony of all this is judged mccaskey by remaining it's a commission with instructions to write a wage differential that the commission didn't find in the first place he instructed them to look to evidence that they had already found to be specifically not credible they went to  various numbers again the range which was are already not considered reliable they got they they identified they they adopted the median number and that's that's the award that stands that's one of the best one of the award