plus an award of penalties and attorneys i've set forth in our brief in order to get to the main issue of the program total disability benefits i believe we have to go through two main issues the st issue is going to be the job offer rehabilitation stating that he's not able to return back to iron work on october th of two thousand and twelve the employer made a light duty job offer and terminated this benefits  recommendations but the job title was ironworker so the functional capacity evaluation report that my client went through on pages a twenty and a twenty one dollars of the records indicate that iron worker falls in the very heavy job capacity and has his capabilities fell at the medium level so there was obviously a very large disparity there and then in addition to that the functional capacity report said he could only stand for one hour durations so we asked for a job description of what my client would be doing if you're going to go sit in the trailer that's one thing but if they actually expect him performing the job of an iron worker he's not capable of doing that eventually after a pretrial which took place in the summer of two thousand and twelve arbitrator thompson smith recommended that they give us the job description stat  and that is the job description states that my client was the to be honest and all day which violates the face of the restrictions that he had that he would be meeting to band of four to six hours in an eight hour day which also violates the restrictions from the f c c and then you would be installing rebar in walls in place standing on the rebar wrongs of like the rungs on the ladder for three to work in addition to the description you gave which i think we would assume is probably accurate i mean cutting to the chase didn't the arbitrator find in the commission adopted that the claimant did go into the ad lib category grizz achim so for yourself that indicated that the defendant had a professional assistance more later than that he would become employed so what's your take on that well he wasn't offered that well he was offered professional assistance he was offered a period of about a little under a year by the employer working at a going through mega driving school to become a class a driver that was that was what they responded to chosen for after the vocational people got involved however it was quickly determined by both our experts and by the employers expert that my client wasn't qualified to do that job because he wasn't physically capable of doing the class a job so that's how i would initially answer that question that the employer didn't have to provide him of professional responsibility condition and even brezik said that he's limited to entry level run skilled jobs and listed fifteen examples so your argument about whether the from illinois state university this is not somebody who is merely an on skilled labor i agree with that your honor my client underwent dr the cell phone he did that self correcting job search for over three and three quarters years and was not able to find a job and we have vocational testimony from dr aggressive and from mr kay and that the self directed job search was appropriate and to this gentleman who applied for all of these various jobs and there are numerous jobs that are aligned in his job logs he was doing about fifteen to twenty five dollars context per week he got no offers of employment and there was no possible search well that's a my question i'm sorry it person who is fully capable of working and there are jobs within his physical capability is not odd lot merely because he conducted an unsuccessful job search especially when your own expert says that is the entire beginning of this thing this guy was applying for jobs that were totally outside of this area of expertise you do your own next words since the beginning of this guy's job search was useless ok it may have been useless to a certain well i don't think it was useless i disagree the fact that it was unsuccessful initially conceived doesn't make it your slowest he learned from those mistakes and changed course as a matter of fact even dodge aggressors that he changed course relatively quickly within a matter of a few months you'll give you give you  he begins job search he was looking at the high end quote not so much looking for a job but contracting employers there were advertising jobs that were outside of his area that's accent word for word what the only jobs in his area were ironworker he's only done it ironworkers entire career so by definition everything is going to be outside his area what about does dancers degree did he has illinois state university well you know at some point the bachelor's degree looses its its magic when he's been working as an ironworker for his last all of these arguments that you're making  can be made pro in can be made it was the commission's determination is the whether this weekend was capable of gainful employment but i would like to hear what your views are on the question of maintenance in t t d and whether the employer actually offered a bonafide job once they were in possession of the doctor's letter ok thank you with respect more particular because you read the job description and specifically address some of the things that my client would need to be doing and determine that he was physically incapable of performing that job then on january t h we sent dr chris was reported to the employer and then dictated that our client could not sign the job certification that they asked him to sign and accept the job and what i'm referring to there is in the job description that you was given he was asked to sign a statement that said i cribbed markowitz have read and understood the essential requirements of this job i represent that i can safely and effectively perform all the central job function well he couldn't sign that because his own physician stated that he is unable to do that job and the job on its face exceeded the restrictions of his functional capacity evaluation and dr chrysalis restrictions so the award of the commission entered a temporary total disability benefits was through the date that he saw dr chris low why they terminated their i'm not sure other than the fact that they appeared to be unhappy with dr grifo lows they felt that dr grizzle should have taken into account the fact that the employer was going to modify the job well dr grifo didn't take that into account because during his deposition at the very end redirect it as you would not release as asian to return to work based on what he could only do occasionally versus frequently so the work of temporary total disability benefits should be through january driving school from september th of two thousand and thirteen through june rd of two thousand and fourteen he complied with the request of the employer he was paid benefits for that day it's it's a patently unfair approach to then turn around and say now you have to pay back the employer all of those benefits they paid you while you were going through their chosen vocational program at their request ye job description report no there was there are two medical opinions that came into play one with dr grifo i won't go further into that the other was dr ram arab  were necessarily specifically used but the description of what he needed to do certainly required him to squat to kneel to climb to effectively be on a ladder since you'd be working off the mr berry you may respond thank you your honors may it please the court mr patel can there's there's a couple of things i feel like i need to respond to but initially what i want to make sure that i highlight before i missed it or before there's any questions is that there's an argument that your review of this case should be denote though my understanding of all of the case law is that your news over here mr barry don't spend a lot of time o to the record and only two citations to the arbitrator's decision supporting the factual assertions which required us to go through three thousand dollars pages of record to figure out whether what you were telling us was actually contained in the record no i think you've got no except the proposition that the five judges of this panel are not clerks employed by your law from you're supposed to follow the rules you know some of you wrote this brief in the th they left it to us to glean through three thousand pages of record to figure out what you're telling us is true 's not a don't over view on this is a manifest weight argument i think the major component of this that makes everyone have to guess and that has created the issues that have led us to get in front of this esteemed court and continue to claim the latter is the fact that it can seem to continue to be ignored that mr markowitz just simply didn't go to go back to work when there was an offer there's all these arguments that he wouldn't be able to do this and wouldn't have been able to do this he couldn't do this part of the job and couldn't do this part of the job none of that we would we wouldn't have to speculate on any of that stuff if you just went in trying to do the job where is the evidence in this record that this mean could physically perform the job that you offer based upon the modify job description in his physician's opinion that he couldn't do it the other itself you only offer itself when when the modify job description is you told him what he have to do now if you accept his physicians opinion he could work for you at all well if you  you couldn't do anything that was required of an ironworker you weren't going to give majed secretary where you judge they were going to accommodate him for all of the restrictions that his doctor given him they were going to modify the job i don't want to start to try and get into eighty eight years and things like that would be agreed they would modify the job and they would work within all of the restrictions that he had of course it was going to be a just a day to day he needed to come in and try you know it was the st off the modify job description came out mr patel k ask you specifically tell me what this man has to do and then you issue modify job description and his doctor takes a look at it and says he can't do any of that period so if he can't do anything that's in the job description that you are for what is it that he's supposed to do let's be honest your honor you've seen all of the job description and i and all of the effort that he made or the lack of effort that he made in everything this gentleman wasn't coming back to work anywhere he didn't want to come next we're going to have work as an ironworker your restroom in the only evidence report so i don't know what a value he said he can't kneel he can't squat he can't do this he can't do that and the evidence is all of the things within your job description required him to do those things so i'm at a loss to understand how the how the commission came up with the conclusion that this man was offered a bona fide job well because they were forced to guess on what exactly the accommodation one of ultimately did because the guy didn't go track i mean that's what they had to do they had to deal with guessing because the claimant did not try to go back to work when he was offered a valid job if they're going to argue it's a sham job well then we get back to manifest weight your honor and with respect it's manifest weight there's evidence that supports the decision i would suggest he would have been a much better position if after his doctor he issued the opinion saying he couldn't do any of the things in your job for you would send him another letter to tell him what you were going to let him do that did fit within those restrictions but sadly your honor i wasn't involved with the case at that point or they might have they might have had better better advice on actually detailing that more appropriately but again i get back to my point your honor of at some point there's responsibilities on both sides his responsibility was to try just try and you can see from all the other stuff in the record it's not hard to imply that he wasn't really to make an effort he wanted to do what he wants to do you've you've brought up the fact that he had a degree he had all kinds of other things he wanted to do what he wanted to do you know want to do what anyone else wanted him to do i'm not raising the needs of the permanent  this man could not perform under the job description that you've given him and therefore the interesting question comes up how does that impact on penalties and fees well there's the problem your honor at what time are we aware that he can't do it well we don't know that yet because he didn't try if you tried we might have been aware at some point but he didn't try you knew for instance you receive that note from his doctor he could not perform under the problem judge being that mchugh has a lot of people who are working on accommodation right now the problem is the only way i can prove that is if he goes back and trace now look he would have a slam dunk argument and frankly he might be a perm total if you don't went back and tried and  said two days and i couldn't do this and that and councils brought up a dozen different things that he wouldn't have been able to do but there's nothing in the record that says that was actually what he was going to have to do they said in their offer they were accommodating it to make sure they didn't violate his restricti they did better than half of the job offers that i've seen where they said if you're violating it here's not one person to tell here's two people to tell that that you can't do these sort of duties and everything i believe they did what they needed to do to make him the offer and then it's a matter of someone has to come in and actually make the effort so that they can accommodate this at some point if someone refuses to be accommodated refuses to look for jobs that are within their capabilities refuses to consider the fact that they have other don't think that he can do the modified job description as described by me and brought to my view and i think that he can find vocational retraining but returning to an ironworker even on a modified level would not be possible with his restrictions with regards to his left knee now that's pretty clear he couldn't do your modified job  although he said based on what he knew the doctor said based on what he knew again we run into the problem of the guy didn't go try it and that's the the huge gorilla in the room judge is if you don't want him tried and they said you can't do this and can't do this and here's the things we're going to modify look none of these things are a black and white issue this is an issue of they have to have someone in there to try and figure out what they can and can't do and if the person doesn't come in and try what can the respondent do they can't send the sheriff to drag him in and say you have to now be on the site and here's some things we can do he has some obligation to actually show up and try work is that you're saying that repeatedly where is that  admit your honor it's not a clear description it just says we will accommodate the we won't make him work outside of the restrictions of the doctor it's not delineated as no standing no watching no i don't find that in the record it simply says we are not going to violate his restrictions it is it is a pretty broad discussion now would it have gotten better i can't predict that if it would have gotten better when they brought in minute said ok here's the final job that we're going to have you doing all i can do is tell you mchugh has people working modified work now where those jobs the jobs that those people came in and started the day they started modified work i think in the cases that i've had absolutely not because they had just the modification to make sure they can have people working so it's it's incredibly difficult for the respondent to be able to sit down and say here's the exact specific six dozen things that this gentleman would have to do when he doesn't come in and try so they can actually get a feel for what his actual capabilities are other than a doctor saying well based on what i know this is what he can't do so again it sure puts the respond in position of they can only do what they can do and then it really lays on the petitioner to that's i actually think if i had been handling this case we probably would have paid even less t t t because i probably wouldn't have done that i probably would've done the truck i mean everything else and it would have been way back because i wouldn't have been i wouldn't have have dug their heels in the that they did about not just giving a job description that that time frame where they didn't get the job description where they end up paying t t i probably would have done that because they don't see the point of that sort of what i consider and a i'm not saying my client did it wrong but in my view that's a petty fight why not just say here's the job description here's what i would do so i agree with you on that judge i don't think i think that was a silly fight and i wouldn't had that fight if it was me i would have hard for me to that's why there's no cross appeal i can't come in and say no more t t t and they actually gave even more than they should have because because my client dug their heels in on what i considered to be something that i wouldn't really i would've done it differently for sure thank you just make one other point i think the commission got it right when they modified the award because like i said even though he did go to the truck driving school and they tried all these other things and everything i think that really is more of the view of the responde actually trying to work with him because i don't think they had to do any of that stuff when he decided not to come in to do that job offers that i understand just as happens questions about those things and everything but when he didn't do that i just stopped and instead i think it's a clear picture of what the respondent was trying to do and trying to work with him but they then sent him to truck driving school and did other things instead of just saying the heck with it sure you don't try this your dad we're not doing any more and so honestly when you look at the record and because you have to guess because he didn't try i think that should guide your get your guests a little bit on that the respondent was trying here they did something that i don't think they had to do they let him go to truck driving school they paid him and they did all these different things and then they got to the end of that and it's clear again he only wanted to do what he wanted to do he didn't want to just get a job and do something and you know i'm sorry that's how the system works but at some point either you go and you find what you want and you do it on your own and do everything else or you're stuck with what you're stuck with or you don't try at all and then you're sort of if you don't want to take the responsibility of doing what you need to do well then you're stuck with the award that you get from the commission and this is a manifest wake case i think there's plenty of evidence to from the front office to go just who knows who's going to be out on the job a foreman a general foreman who's there for the st time for the st date is not going to know my client's search and that's a recipe for failure and here's how they set him up basis for denying and i want to use in attorney's fees was the the fact that the arbitrator and the commission came to the conclusion i guess that he'd been offered  job loss but no one ever commented on the question of dr arrogant these reports that the left knee of which he suffered was the result of some type of underlying chronic he generated arthritic changes and not the result of a work even tree so my question is do you the commission never never ruled on that question because they thought the bona fide job offer disposed of everything but if mchugh rely on the arab in news report and justifiably relied employment then in that particular work you treat but rather chronic earth rhetoric changes how does that affect the question of these and penalties well that opinion that opinion wasn't adopted by the commission because a commission awarded well no we know what they did in the menchu right now the question is if we were to agree with you and suggested there was no bona fide job offer and that could be the basis for the denial of penalties or sees the commission would still have to make a determination as to whether they had a b reason for not paying these benefits because of vera bindi's no causation report i mean they have to decide that somebody has to decide  this if you're if you're suggesting that it should be remanded critic terminations with that i would disagree with that because one because of our own could we make decisions where they effectively have made their decision by trusting it they are making the determination that it was not significant enough to factor into their determination on causation why would why would they do once they have found that there was a bo my job offer did he didn't except they wouldn't have to go one inch further than that to deny he's an interest it wouldn't be added why there was no reason for them to discuss it once they came to that conclusion so what you're suggesting is that they have to determine they have to look at dr appendage for or which came three months later and determine whether there was an adequate basis there to determine well i think on the record it's pretty clear  says regardless of causation it can't return back to i don't work the child the offer was to return to work as an ironworker so i don't think that needs to be addressed necessarily because on its face th fails to pay benefits that necessarily means that the claimant isn't titled the penalties and interest there could be wrong but yet not  return i reckon dr your opinion is agreeing there so we have that in place before the job offers even made and i think i'd just like to really quickly add that on the odd live issue you know there are three ways to