and see and make a finding that their decision was against the manifest way of the evidence my client was injured the first day that he started work with respond as a lever he was assigned on for the first four hours of the ship to basically rebar which is twenty five pieces of steel into a machine repetitively and he was then assigned to pull stakes out of a section of concrete that had been poured the previous day and that's a key fact when it comes to the issue of accident which i will get to basically this required him to rock the pins back and forth to try and pull them out since the concrete was drying having been poured the previous day  incredible how you respond well i believe that there's several other pieces of evidence that corroborate the petitioner's version of events mainly the history that he gives to all of the medical providers involved here on the first being the emergency room he tells them that he fell at work the second is dr dhar language who told me he fell at work dr hour who ended up being his neurosurgeon in his the surgeon that performed his to perform his two thousand and five surgery one factor with respect to his prior back albums there's no evidence that he was unable to work at any time prior to joe i have two thousand and four there is also no evidence that there was ever a surgical thousand and two which showed no quick no real changes there was something generative changes but nothing i'm remarkable according to the reader of the m r i so we basically have a before and after am i the after showing a herniated desk with an independent the men that had been poured the previous day and because it had dried to some degree that's why they were pulling the pins out of it so i contention is that there would not have been an impression made since the concrete had been poured the day before and as i mentioned in twenty one the sawyer again the only independent witness that testified at trial testified that this was a separate section than the concrete that they had poured that morning for which they put plastic over it because it was still drying  it started to rain so the issue of the impression is really the only basis that the arbitrator mentions for denying an accident is because there was no impression made in the concrete and i would submit that based on the testimony of the independent witness mr o sawyer in addition to the petitioner that that's a misunderstanding of the facts and testimony in the case this was a separate area that had already dried for twenty four hours and therefore an impression would not have been made  over the surveillance footage the surveillance footage only showed i believe twenty four minutes of footage over a seven day period that they surveilled my client he's really shown doing nothing more than walking i'm his cell phone you know certainly when it comes to remarks flying conditions or any medical malady there can be good and bad days we don't know how much medication he took that day the fact of the matter is that we have two injury as he stated to every medical provider that he saw and i would submit to the court that dr darling is really in the best position to opine as to the before and after condition since he did treat him from two thousand and one and then beyond the two thousand and four accident date so he knows what he was like before and he knows what his post accident condition was and still testify is that the condition had changed the condition had worse ed and that prior to two thousand and four there was some concern over treatment that had been done after two thousand and four he has a sort of cooperation and is now medically totally incrementally disabled by the testimony of two doctors corrupt doctor story i know who testified that he does one hundred percent of his work for defendants and has never heard of a petition our plaintiffs hiring and i mean so i believe when it comes to credibility his credibility should judgment with well your honor i believe that there are several pieces of evidence here that were never addressed by the question the commission's decision upon gives no explanation of why they found the misunderstanding of the concrete evidence in the fact that the arbitrator specifically states that the only reason he found no accident occurred was because there was no infraction in the cement which leaves me to my next point  witness radar jacobson who was the local thirty two are presented with the petitioner testified that he called and said i just heard on the job what do i do and he was told report it to your foreman so the titian attempted to tell someone who he thought our independent witness the only one that testified here leading that the petitioner answered him to tell ruby slash jose that he had suffered an accident because he was he was unsure whether the foreman was only spanish speaking or not because he had basically accident happened there was some discrepancy as to what date that was but he did testify that he had notice of the accident so we have who are separate individuals stating that they had no choice of the accident we have an independent witness saying that he witnessed the accident which is consistent with what the petitioner testified to and we have the petitioner giving all of his medical providers the same consistent version of events as to how this accident happened and we have no  nine dollars petitioner testified on rebutted that his wages were twenty two dollars per hour that morning he had worked about four to five hours so my understanding is that the average career multiply back times twenty two would submit to the court that the fourth branch and under sylvester should be used to calculate the average weekly wage certainly it's ludicrous to think that he was only work those four hours per day for the entire week and that's what the average weekly wage be based on writing his hour also known as rudy testified that the laborers would often work about ten to twelve hours per day on average so we used that number combined with the twenty two dollars per hour that i'm so we believe t t should be awarded medical expenses to briefly address the issue of other employment there was some evidence that respondent suggested that the client was working selling siding however we presented evidence that he was n even hear this matter before i get to that i want to address a couple things while it's still fresh in our minds regarding counsel's initial argument this is a credibility case that's what it boils down to the arbitrator the commission did not believe the petitioner in petitioners witnesses one of the key points that i have to disagree with counsel on was that she testified petitioner mr testified that he fell on concrete that had been poured the day before well that's not true he said that it was poured that morning i can cite to the record for you it is c pages one nineteen and also pages one seventy three and one seventy four at page c one thousand it was during direct exam of petitioner one seventy three one seventy four it was during cross exam so we have swat in the decision and in the records of dr garland prior to this accident and even the information that mr drew cheska provided to us before he started simply put it's a manifest weight case there fall however i am troubled by the jurisdiction of the court and we filed across appeal as to that issue record is clear as to when petition received the decision of the commission i believe that was april twentieth the wrapper it is also clear when the decision was filed in this or heard of the appeal was filed in the circuit court of the kalpa county that was may fourteenth that's the first indication of any interaction between the circuit court clerk's office in dekalb county and petitioners office there's no federal express information as to when it did the documents appeared the twenty days is akin to a statute of limitations but what about other decisions of the of this court that told the mailbox will was applicable to the filing of jurisdictional documents and appealed those in the mailbox rule by the filing a petition for review from the arbitrator to the commission there is a specific rule at the commission that says two to three days before the date of  granites case you had to comply with all the rules of the local rules of the circuit court before it could be deemed filed you had to show that the clerk had the documents even if they were late or not filed unti but that's different than file in the initiation of a lawsuit which this is will give us a policy as an enemy just a case of first impression that we can all agree upon that what is the policy reason that would weigh against the mailbox to applying the circu the apple leak need some assurance that an appeal is filed for someone to say that the documents are in the mail and they never appear how are we to know when they appear it's not inconceivable is it that something could be filed in the clerk's office and maybe get misplaced and lay there for days and somebody loses the right to compensation perhaps on a permanent total because somebody misplaced a document is a good idea to get this right well the idea is to get it right but there's in other cases there has been testimony from the clerk's office indicating that yes we had the documents and time and there are ways to ensure that these were filed on a timely basis these were thrown in the mail that could have been sent by federal express the attorney could have gone personally to the courthouse and filed them in other words simply putting it in the mail and then saying oh we filed it and there's no documentation no evidence that they ever even bother to follow rob within the twenty day period their representation in the brief says the first time we knew there was a problem was on may fourteenth so you position it is clear it is absolutely listed until it's file until the next day ok if we had that information in this case i could understand that we don't have that information in this case we have no information as to when it was in the clerk's hands to be five wasn't there when i don't know is what was represented accurate i assume it was i don't wish to cash cast dispersions on console or her fur but we don't know that that's actual actually accurate we can assume that but how come how come that's the only place it didn't show up i don't know what we do know is that if it were in the court's office and there were a file stamp or a date stamp or you know a month in this rule twenty three decision which i our priests were on file and obviously it's rule twenty three decision would not cite here on this but just last month there was evidence of documents being in the office and i can accept that what it what i have trouble with is the saying that we mailed something we didn't follow the law within the twenty day period we didn't minute before closing on the twentieth and still be within the twenty the beginning time certainly from the standpoint of mailing on the anything that is lost other than the employers or via pallies i shouldn't say i'm going to employ or that's why i say that but the appellee certainty that this was not that this was a timely initiated and that's something that needs to be  taken into consideration as well and if there were some if this were the only way you know throwing it in the mail was the only you know only way that you could ensure a short of showing up that you could get it  there i can see that but you can federal express things mike my own personal way of dealing with all the different jurisdictions i appear for filing things in the circuit court is i sent things by scratches or next state do it what have you whatever company you want to use so that i know when it's fair and that if by chance it doesn't get fired up i can say well i spoke with clerk man on the twentieth day in court smith told me that it was there and here's the tracking numbers show i can present documentation here we don't even have information any mation showing there was an effort to make sure this was the commission because we have a stamper seat for gratian of the record dated by eight so i believe that you know it can be reasonably inferred that since ms berger testified that she sent those on the same day that they were also there is your honor but you know i believe a tracking number from a fax could is essentially the same thing as a proof of mailing i mean that just proves that it was mailed we don't know what happens to it when it gets there we can't you know force office to stamp the people work and you know things happen when when doctor are sent into government offices that we don't have control over  of some of the cases that we cited in our reply brief harrisburg talks about the mailbox role stating that when the documents are under the care and control of the circuit court but that's  compliance was akin to you know accepting that the appeal had been filed in a timely manner and also the forest preserve the state in our brief also kind of echoes the substantial compliance issue and we would submit to the court that the documents were filed within twenty were comments were sent to the circuit court within the twenty day time period and that that should be acceptable substantial compliance in accord with the commission's rules on  and i believe that it's within the spirit of the act to allow the mailbox rule to apply that someone should not be you know prevented from having their appeal heard by the circuit court or this or  simply because of an error at the circuit clerk's office as soon as we were notified that a new case information she had to be filled out that was returned immediately the same thing to the clerk's office and they actually stamped the document so i believe that this court does have subject matter jurisdiction for those reasons to briefly address the issue of accident again or i would point the court to see one eighteen where the petitioner was specifically is the area that you were calling the pins out of the same area that you had covered with plastic to prevent it from being damaged by the ring and he says no sir and i would again point to the independent witnesses testimony that the i was struck by it and apart from the area of concrete to have been poured that morning the reason that the pins were being taken out was because it had dried and again that was because it had been poured the previous day so the sole basis for the average for years and therefore the commission's reason for denying accident was because there was no infection and that's factually inaccurate there would not have been an impression because it was concrete that had been poured the previous day so i would