me related to a november seventeenth two thousand and six work accident and i like to phrase the question as well or the nov seventeenth two thousand and six incident while the employer was  did the need for the post here your fusion which dr butler first recommended to her on august second two thousand and six several months before the incident in question and one day before she of the normal degenerative process we recognize that but in this case the fusion surgery was medically necessary before the accident it was medically necessary before she came to work for us there is no way in which the commission could reasonably find to support her decision and that this incident i'm november seventeenth two thousand and six either aggravated or accelerated can dition to the point that the fusion was now needed it was already medically dr bottler stated that she would have been a surgical candidate regardless of the nov seventeenth two thousand and six and it might be because she was subjectively reporting some increase in pain symptoms he felt this incident aggravat that that's including the subjective component which is her complaints of pain when she sees dr comments who is the pain management specialist that she's been treating with for several months up to and including the time of the accident she describes consistently in her complaints as burning stabbing sharp cramping and spasm like she has left leg discomfort which she describes as a tingling and numbness and she even before november seventeenth is saying that the symptoms are and six and after november seventeenth two thousand and six there's an m r i study for july fourteenth two thousand and six because she's continuing to have symptoms after the original surgery and she's in a pain management program yammer i study demonstrates degenerative changes that the different way of explaining her complaints because she's really consistently has the same complaints of pain she consistently has the same objective findings and most importantly the treatment recommendation is the same that to publish treatment when she gets up she then has pain in the need this court vacates the commission's finding that there's a causal connection between the underlying medio meniscus tear that's diagnosed only after this incident at work not before so i mean that's bit different than the case we have here because here we've got to discourage them in the generation diagnosed before we got the treatment recommendations all prescribe before but this quite vacates the finding of positive action as being against the manifest weight of the evidence because it was all part of the natural so why can't the provision the problem went back to butler's testimony with the commission relying on that is he's contradicting himself as wow because he has recommended this is supposed to or spinal fusion to her august second two thousand and s more well before the accident how can it suddenly now be related to a nov seventeenth two thousand and six incident when she just kind of twists her back when she subjectively says my pain is worse i can't control it any more try and put this off until it's more convenient for you to have surgery august second two thousand and six was not a convenient time for this placement to have surgery she didn't have health insurance and she was starting a new job the next day it's not a good time going to have surgery nov sixteenth two thousand and six looks like a more convenient time to now have surgery because she's got an employer keep in mind too she's been working as the workers compensation intake partner for this employer so you can kind of see the wheels and everybody's head turning here work injury in the conditions diagnosed and now they need surgery they may have the condition may have existed beforehand and nobody knew about it now to say that the work injury didn't change that condition is going to be a stretch but sure you already have heard rick during surgery and  occasions are the same everything stays the status quo and y dr butler is saying there's a change in her condition but the objective medical evidence which is these m r i studies the diagnostic studies the examination findings are all saying there's not a change in her underlying condition doctors  in the underlying mission and under this decision were paid and were being ordered to pay for a fusion that she was already a candidate for and that was already medically necessary for her to undergo on august second two thousand and s because dr bunker would not have told her and he had knowledge that he would not have told her she needed surgery unless she truly needed surgery you can try and put it beyond a doubt that condition but to then allow for the employer to be found liable for that fusion surgery after might is a relatively low impact trip and fall that work with actually no fault catches herself before she falls and sort of has a twist really sort of i mean i your mind the things that i do think her position with the employer as the workers comp in stake or nature gave her the knowledge and insight into sort of how the system works a little bit with them got her stopped and gave her some knowledge but i think you have a gentleman who is diabetic had pointed to try to transfer preventative care but he doesn't have any have symptoms associated with sharp codes until after he twisted his ankle while he's at work and he has more surgery but it's still medically necessary let me ask you this very specific question do you have any case laura corey you can call our attention to that way you phrase the issue the fact that somebody already needed surgery  opinion of the treating doctor wouldn't preclude recovery under the i did not find any cases that state that per se but i think if you look at the hansel and gretel decision i mean that's a case in which it's slightly different factional because the surgery wasn't recommended until after the accident at work but there's a climate who's the condition of the knee was so severe severely degenerated that the court recognized that this was just part of the natural to general process and not i believe the cases that were cited clearly help our position against the manifest weight of the evidence is the standard of review from this court as it was in the circuit court of cook county on this particular case the manifest weight of the evidence is you look at all of the evidence presented in the case and if there are differing opinions or inferences different inferences drawn from the facts presented in the case then it is the commission's purview to decide the case based on those different facts this court can only reverse the commission's determination if it is against the manifest weight of the evidence and it begins at least my formal argument i would like to address what was brought up in this mafia was in front of you earlier with respect to insurance that there seems to be a suggestion that kathleen  hearing that is correct from august third to november seventeenth but i will point out to you one very important aspect of this case you'll note that the commission awarded one hundred forty five thousand dollars in medical expenses with no eight j credit the reason for that is the surgery and the treatment was paid far paid for by kathleen sanborn's husband's group health insurance kathleen sanborn's treatment prior to treating prior to the injury prior to working for very to north of p dix was paid for by her husband's she was employed by it's an orthopedic and after she was employed by periods in orthopedics there is no argument that you can present or hang your hat on that said that she was delaying surgery because of financial reasons she had insurance through her husband's group insurance carrier the entire time when they deny any further treatment the workers comp insurance carrier after the i me with dr wayne or where does she do she doesn't a surgery we're not here in front of you saying she needs surgery that prospective treatment was worded by the arbitrator of the commission she went and have the surgery that surgery was paid for by her husband's group insurance showing why particular case they don't now you talk about windfalls i'm not sure this is kind of going off on a tangent there really isn't a windfall we've already addressed them we'll have a requirement under legal rights for more blue cross blue shield in their policy that says we don't normally pay for occupational injuries once if this court upholds the decision of the commission which i would expect them to do under the manifest weight standard we would then have an obligation if it's not appeal if that award is paid we would then have an obligation to repay a blue cross blue shield for the payments and they made on this care and treatment so there is no windfall it's probably paying it from one to the other who can barely move off the i think argument that look there's no real medical evidence objective medical evidence to support the conclusion that is that a work aggravated of celebrated her condition so this is simply tell us what the medical evidence supports the finding that the incentives were excel or weighted exacerbated or aggravated the good first of all i clearly disagree with that statement that there is no medical evidence that shows changes prior to the injury when compared to kathleen sand worse condition post accident will go through this even dr probably pointing that out there appears to be and clearly there is a significant medical pollution is medical records that talk about kathleen sam born in proving moving away from surgery from the time she begins treating with dr congo it's in early two thousand and six up to when she ultimately has her work accident in november of two thousand and seven i'll point out to you dr conduits note of august twenty fourth his examination  normal muscle strength normal straightly test epidural epidural injection on september twenty sixth she returns on october twenty sixth two thousand and six he notes that she reports she was and she was improving her resting pain score was one out of one to ten she reports she was pain free fifty percent of the time her gait was normal full range of motion to her lumbar spine a negative straight leg raise tests all the recommended was some medications oral medications and shoot her testimony was i was exercising three times a week i was swimming she goes on that was the last visit before the the  october twenty sixth she testifies that she's very active there's that i have raised the argument at the commission there is an elephant in the room as well that berrington orthopedics fails to address th week required to sit at her desk eighty to eighty five percent of the time didn't miss any time from work didn't complain other then to this nancy farrah and who are some credibility issues every once in a while that she had back pain she testified she never took medication because it makes her drowsy she took it at the end of the day did they parade in any witnesses from barry to north of punic saying yes she when she got up from her desk to walk or deliver items she walked in a hunch manner she complained of back pain she missed the days from work because of her back pain there is no evidence of that for three and a half months she worked forty or more hours a week and she worked eight hours a day five days a week with no problems is this someone who is on the brink of having spinal fusion surgery that she could sit seven eight hours a day perform her job duties as a intake coordinator for worker's comp or personal injury out of it in a very busy orthopedic practice there is ample evidence in the record in the commission relied on that ample evidence to show there was a significant difference between kathy sanborn's low back condition prior to her work accident when compared to her symptoms after the workout as a doctor partner is the doctor who's most familiar with kathleen sanborn in her condition you saw her before the accident he saw her after the accident as you pointed out mr justice he says in his records very clear there was a significant change in her symptoms post accident she never had a neurological problem before he now continuing without the surgery they may not have a recovery a very good recovery there was weakness there were a lot of changes in the condition after the work accident and dr  in the amount of buying me she performs ninety nine percent of our behalf of respondents she never asked kathleen say important the simple questions tell me what you were feeling before tell me what you were feeling after she didn't want those questions she didn't want to hear the answers to that she admitted that in or deposition she also excluded the last chart note prior to the accident she did not review the october twenty sixth two thousand and six chart note from dr conduits why simply because that was a great chart note for kathleen sand we're showing normal kate negative straightly fifty percent pain free her pain scale was a one or a two out of ten scale doing exercises swimming she didn't want to look at that she didn't whether she didn't have it or whether she chose not to look at it and then she renders her opinion saying well there's no difference but she did have to admit on cross examination that she can't really look into a crystal ball and say definitely kathleen sanborn whatever needed to have the surgery on february two thousand and seven because that's when she had her fusion surgery i couldn't say that you know that she would have needed it in three months six months one year two years three years she been admitted that many of her patients when they go through pain management they that is not the determination that is against the manifest where you go with respect to hansel and gretel i believe in my brief we kind of pointed out that the reason difference between hansel and gretel in this particular case it's the need and see what's going on so the medical testimony was equivocal on whether or not that incident aggravated or accelerated there is no equivocal testimony in this particular case dr  his opinions are directly on point they had this work accident aggravated this condition and cost and acceleration leading to the need for the search more fusion in february with respect to this lafayette and variance in orthopedics position that again in their brief there's a bright line test that should be applied in this particular case again your point is well taken says  in all of those cases you have to say or they do clearly state you only need to show that the work accident was a causative factor either in the exhilaration or aggravation  orthopedic swell we accept that but only to a certain extent you know if there's really really someone who's got a really really degenerative condition well we're not going to take those people but the people that have less of a degenerative condition will again is that going to mean that the bright line test is going to preclude all of those older workers from recovery under workers compensation because they suffer an accident and they've been putting off that surgery even though they show an acceleration or aggravation no we can't pay benefits on that person because there's a diagnosis one year or two years five years earlier you know what you're going to need a total knee replacement you know what you're going to need a hip replacement at some point in time in your life i don't believe the act was promulgated with that in mind in clearly this court does not have the authority to alternately write a decision with that type of a bright white house that's up to the legislature to determine these causal in recovery is not allowed for her or her conditions that they're elated because she was that ticking time bomb in this case kathleen sanborn was that ticking time bomb and there was so much degeneration in her lumbar spine that your regardless of the work injuries she required that spinal fusion in for dr bao i'm going to say just fine days after the slight after this incident at work because it's november twenty second two thousand and six when he now says this is excel aerated her condition she requires surgery is really stretching his opinion it is really stretching where he's going with that because she had two other incidences in which she twisted her back and she had a spike in her pain they were both in june one was when she was hit by the waves mostly made in the ocean and the other one was when she stepped off the stoop and twisted her back and in those instances they gave her system time to calm down to turn her to go back to what they condition to aggravate to be accelerated for the need for surgery the surgery was already needed on august second two thousand and six interest needed to be performed when it was financially convenient for kathleen's and born and when it was usable for her to do to have the surgery the day after she