the commission's decision is based on the assumption that cindy mansfield's condition of ill being was the continuation of a chronic problem resulting from degenerative disc disease and from fiber my allergy and not injuries at work mansfield's feel is not based on only now let's look at the evidence in the case the commission stated that cindy mansfield that night give a history of the september ninth injury which is the second injury to she did not report the incident you excuse me the commission also relied on the opinion of dr spencer who said that the causation was there any medical opinion on the claimant side that supported causation yes i there choose the doctors dr master and also dr lou dr lou  also indicated that in his opinion both incidents caused and the one and july twenty third in particular caused her condition will be right so you've got let's assume for sake of the argument you're correct you've got conflicting medical evidence two doctors on the respondents side two doctors on the claimant side why would the commission adopting the respondents doctor's opinion be against the ban of this with why is that not permissible ok if i understand your question correctly is why should they not choos prior to the july twenty third in the first incident and that she had for some time if you check all the records and say absolutely no evidence that she complained to anybody especially her family doctor who was doctor or leery who trigger from one nine hundred ninety four until now until today as a matter of fact there's nothing in his records that indicated that she complained about chronic back pain i'm not pain that everybody suffers from you check those records that's absolutely untrue you only wanted a case that has dr spencer and if you take a look at dr spence's records the intake questionnaire filled out and if you check at the check the minimal notes taken by dr spencer you'll find it or it's a one page document there are only about ten or twelve one word notes on there and the only know that he's got indicating anything at all is fibromyalgia says nothing about prior bad pain on there yet he puts in his report that she has chronic  this part of the district it became that she injured herself on july ninth i'm sorry and september night and that that injury aggravated her preexisting on july to the injury on july twenty third it and i there is no case that i know about that requires that you tell that the petitioner tell every doctor about the infant were she heard of so if there was only one doctor it's understandable she's got  but if if there is more than one doctors who are here the fact that she told half of them and didn't tell the other it really is not a big deal that i can see i don't i don't understand why they relied upon that anyway why the commission relied important why motive changes are observations an m r e finding testified that it didn't make any difference to him whether he knew about that incident or not because in his opinion all of her condition of well being is related to the former jihad on it's not something that took place over a period of time but it's something that's acute and so that's evidence alone that it could have been either the july twenty third incident or the september ninth incident you don't need you don't necessarily need a doctor to testify to cause asian if the records are clear enough so that you can draw the conclusion and the courts to say that and i've got a case that i regard to the other issues decided by the commission those being the issues of causal connection t t t medical and permanency our position is that the commission was presented with facts and evidence on those issues that supported its conclusion that they we've been alluding to the town where i'm still it was or causation opinion given by any of the doctors involved in the claims case certainly not there were four doctors that testified in this case or for medical providers i should say two doctors dr spencer and doctors will be on that there was not causal connection i think your honour's are aware of that they both found that she had a minor strain at bast that she had recovered from that reach maxon medical improvement in the any additional problems including the need for surgery for example were related to an underlying degenerative condition what the other two medical providers the providers that testified on behalf of the claimant is dr hands on his part said that he was not even aware that she had a september that he was given a history when he first saw her notably two days after the alleged that time or nine two thousand and three accident he she he was given a history that the so we related to the july two thousand and three accident and he gave absolutely no opinion regarding that date of was the other doctor that testified on behalf of the claimant was dr lou and dr who testified that he was not given the history of an incident on september ninth two thousand and three and moreover as counsel looted too he actually testified that the september ninth two thousand and three incident if it occurred was irrelevant to him so there's absolutely no possible action of man is it good health chain of events terry would not be bailing in this case with no i mean with our position is a given the testimony on the record and given the on the testimony in the record and i think your honour's noted the fact that the case on appeal here is the september two thousand and three case is a relevant consideration the question that was left to the commission was whether or not a causal connection was established specifically with that september two thousand and three date of wasim given the evidence in the record and the lack of a possible connection opinion from claimants perspective and a clear no hostile opinion from the employer's perspective it's clear that there was substantial evidence in the record to support that conclusion by the commission i think claimant council is sort of conflating the two cases although only one case is on review and i think that's significant because for example in the september i he's mentioned that in his argument you mention that in his brief he sort of makes that the linchpin in this case he actually refers to in his brief as the crux of this case the interesting thing about this allegation of the motive changes is that it's not in evidence and he cites the that treatise that you referenced as it was not commented on by any of the medical witnesses it was not relied upon in anyone's opinion and it's not in evidence in any way and in fact claimants own surgeon dr lou who testified in the case specifically disagreed with the contention that claimants is trying to make here on review that the motive changes are somehow evidence of an acute injury what dr lute said in his testified or in assessed money rather when asked about the m r i disc bindings he testified specifically that motive changes are consistent with a degenerative process that's in his deposition on page eighteen and he goes on to say that m r i findings are not something that i'm sorry that her m r i findings are not something that's acute you can tell the m r i findings that's something that's been there a while that's on page thirty two and thirty three of his deposition so there's contention that the motive changes are evidence that there was a specific incident that occurred in this case the clause the herniated disc if that were the claimant is actually relying on an review that's something that's completely unsupported and in fact contradicted by his own medical evidence what about the calculation of the everything we know the average weekly wage and then issue we contend that the commission in the circuit court  by including earnings from a home business as part of the average weekly wage calculation the act itself states that wages from second employment shall be included if the employer has knowledge and specifically states wages the language of the act itself says wages it's not so pro room to operate our position is that it does not mean the poetic court i guess gave a copy in dicta stating that there are situations that they could imagine in which that there could be a consideration of income as representing wages and they cite specifically to larson on this site specifically to the slang for a case but it's interesting if you take a look at the langford case the distinction that claimant tries to make is that our case is different because it deals with a sole proprietor that's not lying at all if you take a look at the actually dealt with was someone who coned a business perform services as part of the business in addition he was trying to argue that his share of the net profits should be included this is average weekly wage and what the tennessee court did in that case is they said no we don't agree recoup benefits it's not a second employment case at all and our position is that in this case what she earns as her business profit is simply not wages as could be considered under the language of the yakked and there evidence that was presented on that question i don't know how any finder of fact and again claim that bears the burden of proof on average weekly wages well i don't see how a finder of fact of look at the evidence that was presented in the record and found out what her quote unquote wages or profit was for the fifty two weeks prior to the accident what the arbitrator did is he took two full calendar year said each one will take about six months of and cut it in half and then divide by fifty two i mean that's just completely speculative what the circuit court bend did is they said well for two thousand and three we'll just take twenty five weeks because it's clear that she only were twenty five years of that year that's absolutely false i mean that's completely contrary to the record and in a couple instances of herself testified that she continued to see some students for piano lessons after july two thousand and three and in addition in the records that were admitted into evidence along with dr spencer stuff position she filled out her own history and in that history was asked are you still working and she said not at the park district but i'm still seeing piano clients at home so the contention by the circuit court is clearly erroneous because there's absolutely evidence in the record that shows that she continued to work and teach piano students at her home after july two thousand and three but overall our baseline position is that this business profit business income is not wages some of the meaning of the act is not wages that can be counted as second employment and should be considered by by the court here and likewise i think the determination as to what those wages if you could consider them would have been is clearly against a man wrong fortunately don't understand everything that counsel said and it's hard for me to read some of this but apparently he indicated that dr move agreed that there were degenerative have a more to change it's more the changes are very obviously acute a result from an acute injury and acute injury could have only occurred i'm july twenty third or in september ninth now it doesn't make any if you read his testimony it doesn't make any difference to me whether you she herself or had an incident on july night in my opinion needs to kill her twenty third no i'm sure and i tried that september night it doesn't make any difference to me if i knew about that or not because of my opinion the for all the chain had created the incident where the motive changes show up on the m r i and in his opinion everything result of from the on july twenty fifth but my question is my question use you feel if he testified did everything release to the fall into why you're appealing the denial of benefits and the september incident and understanding says every how can you claim benefits for the september incident when the doctor render an opinion with regard to everything with related to the a what what he what he said was that i'm stupid i'm not sure i understand your question my hood ornament put it real simply your doctor gave because he should opinion contrary to your position today what he incident was the causation for the surgery and i'm not really a very i'm not really pushing that issue because i don't think it's it's important at all whether whether she had all of her condition that obesity related to try twenty third incident or whether the september night incident was partly the cause or the main quote i don't think it may not the main cause but partly to the july twenty third and should because there was a fall on or ramp in honor toxics that injured her back in her arms so i don't think it's necessary at all show that there is causation between the national medical improvement any treatment pick she had after that is not connected and therefore the respondent is not responsible well that's not the situation at all if she entered her self on july twenty third it was  your opinion that the only thing that caused her condition is the force and that god that condition is responsible for the surgery and that you performed on december thirteenth for he said absolutely that's what he said so the time that the physical therapy she had after doctors out we saw are and the three injections steroids injection she had and all the other conservative treatment when they found the cat was not working that's when dr louis zander and said she's got to have surgery so his july twenty third everything that is yes i agree with that everything and all of the treatment that you received results from the july twenty third incident i don't understand your question so i can't answer it