and i'm not sure how it has gone if you pardon me it just doubled to one issue would never specifically ruled on the commission's decision circuit court well i did it if i understand your your question the circuit court the nd time around and it was a different circuit court judge the nd time around they did give the judge did give the respondent credit for twenty dollars and a half percent loss d of the right leg that was a previous settlement that the respondent was claiming credit for thus basically zero in out the twenty percent  was that this court had had remanded back to the circuit court for which hadn't been decided previously which was the question of the failure to address the section sixteen attorneys  take a look at paragraph four and six on so the question is does that deprive the order of analogy she's gonna say we're we're we're where reversing the denial of the  credits i would saying we thank you for pointing that out i would i would say yes i would agree because that would be consistent with the court's earlier dismissal of the earlier appeal because of lack of addressing these issues and i would also point out for whatever it's worth that the previous decision decision or order of the circuit court of adams county by a different judge judge  n although he never actually got around to making an actual decision seemed if you look at what he said was very sympathetic with an agreeing with what the commission and the arbitrator had done  is wrong you're going to give me credit leaves it hanging nooses subject to interpretation i think that that makes sense to me although i didn't realize that when i read it i would interject as well and it reads is though the court intended to send this decision and then didn't at the circuit court had done that might as well you have to you know all right well thank you i think when the penalties issue i believe that this is a case where penalties is sometimes a sensitive topic but i believe that this is a case where there's absolutely no question that the credible evidence not of let alone the manifest weight but the credible evidence is fully accident occurred because well mr bowen was a truck driver every other day he drove he drove a load of milk lumber from quincy to chicago and then went over to new process steel of the new camp trucking drivers checked him he went and then was walking back to his truck and as he cut as it was climbing up into the cab and he described as specifically how he did it st putting say because they they were driving together until one by the name of chris bennett for help so he could get into the restroom at the new process steal facility and he also called camp the owner of me can trucking and told him what had happened somehow he managed to drive back to quincy with his after the load of steel have been loaded onto his truck which is a  flatbed truck and when he got back to quincy it was about three a little bit before three in the morning and he parked parked a truck in the in the trucking camp trucking lot and called his wife to come and get him and take him to the bus a hospital emergency room in quincy because he was unable to bear any weight on his right leg and his wife came and picked him up brought some crutches for him and took him to the e r in that blessing and then if you read and this is i think is very crucial in my opinion the history of the injury recorded in the e r record which i put into the  included in the appendix is a little difficult to read because it's handwritten but what it says is when getting into his semi and bearing weight on his right leg felt and and heard a pop and had sudden onset of pain with inability to bear weight and there were some other words circle severe tenderness welling sudden onset still present so my point being you have a man is a truck driver he's a high school graduate he doesn't have any legal training he doesn't have any education beyond high school and when he gets back what an idiot immediately after he gets back at three in the morning and gives this history to the e r nurse it's incredible that there would be any way that he would have been able to like fabricate or have any reason because he doesn't have the legal knowledge  to change or fabricate anything that he said to the e r and it's exactly the same as what he said he told to mr bennett and mr need camps if you look at the  know the background of the case at this point yes well i think that the question is whether the evidence of the testimony of mr bennett and mr new camp could be considered credible and i don't think there's any way it can be considered credible if you look at what i was just describing in the medical records i just don't think that the commission and of course the commission didn't take away the one thousand nine hundred and seventy which as we all know is in the nature of a late fee way that anybody looking at this at mr not only mr bones testimony but looking at what he said when he got to the e r at three in the morning which was right after he had gotten injured i don't think could any rational person could say that the two response witnesses were were testifying truthfully or that what they said would make any sense compared to what's in the medical records i think that's written by justice holdridge where the statement in the in the in the record was in the chaos that is in the decision was that the record established that there was credit other i would point out that i think it's the commission the commission does have discretion in determining how that if there is to be a credit how that is to not so before you get to that what is your position on the serious jurisdictional question i think that the courts order with regard to paragraph i think it was referenced three in forty three i think of what the court was trying to do i think on the issue of penalties with regard to ellen paragraph three that that that issue would be properly before you from a jurisdictional standpoint on the issue  it talks a lot in the prior caon about the commission taken judicial notice of their records and so i to me if it's simply an issue of is reverse i don't think that language is in this order well i mean don't you think you should be i think that that would make this order much stronger and would answer th question directly i think that reading that paragraph four  if you don't have that language everything else i think is is there i think it essentially reverses what the commission said the commission said twenty percent of a leg and that's not on appeal and the commission said we can't find evidence to document a credit and it would be speculative and that's why i refer back to the april nd opinion that's referenced there talks all about the commission taken judicial notice of their own records and when you look at the commission's own records it's clearly there is evidence there of the prior credit so i think in essence a paragraph or  basis for us to have jurisdiction well i think i read the language of reversal is not in that paragraph so i'm not going to disagree with that at all i guess i'm saying that the fact that the commission's six statement and i think the commission there's some problems with the commission's order the way it talks about doesn't explicitly do some things to but i do think that the language in paragraph four specifically reverses the finding by the commission that says we can't find evidence to document a credit and the court as i said referencing back to their able to any nd order goes into the concept that the commission can usual notice of their own records and this if you look at that credit is clearly documented let me let me share let me share counsel my view of it based on what i reviewed and you argued this earlier that referenced in all the arguments back at that point what we're trying to do to the judge is for the judges to say back when we were at the proposed decision stage and from the arbitrator we actually put in our proposed decision your furnishing evidence the decision already out it's not a clerical error well the reason i'm going all the way back to the arbitrator even though we're to be addressing the commission's decision is that i've been trying since the day we tried this case and there's evidence in the record forget about the that new evidence on their database even though the commissioner says they can take judicial notice of their own records but i can't find it we could find it and point it out so i think that's why i raise that that's relevant but in the record in the arbitration in the record it's not new evidence this gentleman admitted in one thousand nine hundred and ninety seven you had an accident with o t r he admitted that he injured his right knee he admitted that he had a settlement he admitted that it was approximately ten thousand dollars which it is he admitted that on direct question for me sir that settlement that you had for that case was a twenty two and a half of a leg sir what was that percentage i said twenty two and half and like you said yes there he admitted he went to the adams county courthouse and received the settlement all of that is in the record in the arbitration transcript that has been the evidence throughout so in the commissioner is saying that it's speculative to find a credit it just does not it defies the record although you know so mr know if this helps and i can't speak for the full court but you've been trying this by all along and you teed it up for the court to put that fine in there and the finding is not there you know and i'm certainly not to blame on council the finding should be there and i perceive it that justice i guess i i was trying to address the concept of new evidence being brought in i was just trying to point out that this evidence has been there from day one and addressing specifically the finding by the commission that it's speculative and there's not documentation there without any other not when i raise the issue is in a deference for a clerical error if the commission makes a mistake as to the evidence that's yourself in councils position to try to how do we get this issue corrected we put it in the decision for the arbitrator is how you get it corrected and we get your yes we did just as we did that so i guess we are trying to try anything we could to get this matter before the court and and get a corrected that would be my answer to that i think that on the issue of that the credit you know if it has to go back i mean to be corrected or if there's no jurisdiction i think it should be an easy fix based on what is in the record and i'm not ruled the question of the recall correct in rio's you for clerical error in the commission's decision trying to be creative to try to get something streamlined and get adjusted but your point about what was in the record and to adjust it to address the justices question earlier about the standard there's no bur on their ploy or the statute mandates it's a shell and the evidence is in the record to establish a credit all that needling the whole and if that isn't the employer's burden to prove the entitlement of the credit are you suggest ing it's the respondents burden to prove no credit i mean how does the prove the negatives all all i'm suggesting is the wreck the evidence in the record was established and the case law says all i think it has the respondent to establish number one there was a prior a jury there was a prior settlement there was same body part and you know you can get into the record what the percentages were if you want and then ask the arbitrator to take judicial notice of this settlement contract and for this decision of a commission and we did all of that we did all the things i don't think the burden is on the employer i think the burden according to the statute in the legislature is on the commission to apply the credit and so i don't it's not the employer's burden if the if however the information gets raised to the arbitrator they the commission has the duty to apply that credit it's a shell it all i mean it is your contention that in every worker's compensation case that's five the commission is under a legal burden to search its records to find out if they had complained it if they had claim it as ever filed a prior worker's compensation case for the same b that's your argument no that's not my argument but my argument is if that's an issue in the case which it was raised as an issue in this case the onus is on the commission to apply that credit that's what position once there's evidence of a credit i think you're right it becomes the burden of the commission to apply it but there has to be evidence of the credit and somebody has to proffer that evidence and in this  could be anybody yes well in this particular case the pusing are good i understand what you're saying and the pit petitioner also on direct examination also offered that information and so i  settlement i'm you know i'm finding that there's a credit there i think that could have been a possible ability or a possibility in this particular case i don't i don't think the legislature read in a burden to the employer and there's no case law that reads in a burning to the employer's eye i just want to answer that question directly i think that all that's required is to show that there was a payment made and that was done in this case and then it's up to the commission at that point to apply the credit if i could briefly before i run out of time on the issue of penalties the manifest weight the evidence that would apply to the commission's finding that respondent acted reasonably in good faith also applies to the fact that one thousand case section sixteen fees not being there are supported by the record then that gets this  down to just was a lot clyde right to the l penalties and if the reasonableness standard is the standard and the commission found it's not against amenophis weight that respondent acted reasonably nine hundred and ten dollars of these have to go away and the facts relevant to that are all of the things that we cite in our brief fisher petitioners testimony he admitted to problems with this need before the accident he admitted arthritis before the acts of admitted to limited range of motion before the action he admitted to not being able to extend his need for the accident he admitted to long standing problems with his knee before the accident not being able to extend it humid and not be able to get it to climb stairs difficulty getting out of his car he already had crutches his wife brought crutches too and when he came back he we have an independent witness without a bias the st call they made says he said it buckled walking across the smooth pavement fisher admitted to buckling prior to the accident responded hasn't i me where the doctor says longstanding authorized osteoarthritis reply thank you justice holdridge with regard to the the burden issue the when we tried this case that morning mr kelly gave me his exhibits and he said there's one in here there's a thing in here where it shows it prior settlement or or something to that effect and i looked through what he gave me and i said well it it's not in here i don't see it it's not here so i didn't know if he left it out of what he gave me or or what because i didn't have what he was going to be putting into evidence but when it came up the petitioner i guess you might say redirect said well i know i got a check for ten thousand dollars about thirty days after i came in here those years back whether it was twenty percent twenty two and a half percent i don't really know about that and then ar well apparently mr kelley did also didn't put this document in his exhibit so what they would arbitrate your lead did which i thought was very commonsense kind of things as well i think this man has got twenty percent additional impairment to his right leg beyond whatever he might have been given or or settle for in what he was pro se previously and actually judge drummond and that the st judge who ruled on this he said that makes a lot of sense to me and it made a lot of sense to me too because previously there was just a removal of a loose body he didn't really have also think that my bonus being a little disingenuous because he didn't claim that it wasn't his burden he assumed that it was his burden as you correctly point out and i believe justice hoffman to establish that credit and as i said when we were arguing this before commissioner or that time commissioner brendan i said well this is like this reminds me a move we were going on groundhog day i said this reminds me of the movie groundhog day because it's nineteen f is a contempt to get something into evidence they want to basically retry the case and add an add in additional evidence that even one of their consideration of their proposed decision mr kelly certainly could have put it in a few if he had or i don't know what happened but in any event he didn't and it was certainly pointed out by me and and by the arbitrator and now they were making a different argument than i  think they play for they're trying to now argue well it's not our burden it's the commission's burden which i don't think that's the law and then also you have this additional issue now which i don't know has come up before but where they the law has changed and there's a different number of weeks of value for different body parts and the if it only were two hundred weeks now it's two hundred and fifteen weeks value for a leg so i think if you statute i think gives the commission discretion to decide how to interpret and all of this and i don't think that what they did was incorrect you the as a matter of law or as a matter of the of the evidence and i certainly take issue with a number of the things that mr kelly just said  boehner was not having any problems to speak of with his with his knees although he did by the time he was man six hundred and thirteen thousand three hundred and thirty pounds he was forty six years old when this when this injury happened  by that time he did have a lot of arthritis in both of his knees and he did have some problems but he didn't have any torn an escapee and this was a definite major change and certainly he was much more damaged after this happened than than before so i think that that's what the commit what are clearly did and what the commission did reflect in your time