the case law i mean he gives a little bit of various intoxication is not a per se bar to workers comp and compensation that's correct we agree with that it depends upon the extreme nature of the particular facts of the case but what i'm worker is about here is and in reading the record reading the facts at the time that the deceit and fell down the stairs what work related function was he performing he had been off the ship i mean i was just curious as to why he was even going down the stairs based on the evidence scale of the owner didn't observe of performing any tests he's been partying i think for hours i think it's a fair analysis of what's been going on here and then he falls down the stairs so what was he doing how did th the questions they were asked or objected to on the basis of hearsay those objections or sustain any testimony regarding why he was going down was stricken from the record so you write it in the record there's you can say that there's no evidence in the record to sa one to one thirty in the afternoon and after that he was simply socializing with his friends drinking playing euchre playing apparently although with the fix other than the owner having called one time with the knowledge they believe that he was intoxicated no one else had ever fallen on the stairs including the seat correct there was one testimony of somebody who said that they slipped on the stairs of the could recall the date or time they said they may have slipped once or twice was very speculative in terms of what actually occurred  he was too intoxicated to perform his job duties he argues in effect that he said this level of alcohol can cause problems you know it was all expressed not in the affirmative how do you respond to that yeah i think that it's actually the they need not apply and that the accident was a causative factor result conditions for the commission to make the factual finding that the accident was causative factor in the result condition just for the commission at the factual finding it  he routinely would do that user evidence in the record that use of that time to get ready for the next day cetera that he would be going to the basement to get the materials that would be useful to do a short order cook in the morning at four thirty yeah i believe some okra now well the fact is done in this case is in you know let's be intellectually honest there's no evidence in this record is to really at the moment he fell in died i could recall fuck my head but what it actually says but i believe he says the difference between the two lincoln reports what i recall is talks about the claims of knowledge to the duties of his job or i agree with your order he was not working while he is playing shuffleboard he was not working while he was playing euchre he was working at the time he left to go open the door walk through the door to go into the basement and i don't have the exact set i believe i have it in my brief  where again it was his routine habit he would go back at the end of the day he would check the end of the day to make sure everything was ready the employer responded in this case testified that she would expect him to go back and make sure his been was ready in the actually you're probably familiar with the building we have these are not brand new buildings it's a beautiful to store city in the wonderful state of illinois mr for almost a short order cook he was the man in charge starting at four thirty five o'clock in the morning and when he got there people would be lined up waiting to come in have coffee and breakfast as the respondent testified to the respondent the employer in this case also testified that mr four again would routinely come back at the end of the day to make sure the side was ready to make sure the potatoes ready to make sure the bin was ready and i think it to generally quote her he'd absolutely would have done that because four thirty tomorrow morning there were going to be people way to get in he had to be able to grab the bin get it up stairs and get ready now i can't come up with an example that he wouldn't have been ready when he wouldn't be on the clock because it seems to be because of this you know reason that he would have to go in the basement to get ready for the next day that anytime he went to the base would he be on the clock and i think that was the employer's testimony or she testified that the only reason for him to go to the basement wasn't work related reason there wasn't a restroom down there there wasn't another exit down there patrons weren't allowed down there at the employer's testimony is only employees or people with business or with items to do for the business were allowed to open the door to walk through the door to shut the door and to walk down the stairs i would say this be the issue to cut to the chase i want to get it seems that's the issue that i picked up on that's the issue that i believe in it seems to be i don't disagree with both the law intoxication in illinois fairly well developed i think one of those well developed factors is there is no per se level of blood alcohol concentration that says hey if you ring the bell here you're too intoxicated to perform you think this is sort of you know go sometimes of around to all the benefits  acuity they testified to tangible what they saw what they heard what they experience with mr fall immediately prior to his accident they testified that he capably played the game of huger for three or four hours and they were playing for money it's something we have to have your mental faculties about you're going to lose a lot of money they testified that he capably play shuffleboard which involves mental and physical ability again to the point where even the employer in this case  walley she testified he was fine he was on the shots he emulated fine he was not unsteady on his feet i mean all of these outside indicia of was he impacted by his blood alcohol content because there is a difference witnesses were biased and unbelievable on the question of what he was capable of doing credible either their job to do now next he put an interesting phrase we think no one will ever know why the petition apologize i don't have the direct cite but to the effect of he went to the basement to take care of what he needed to do when you pointed me to reduce the the the commission found her biased you don't believe the commission you're right the commission did find the four people biased numbly with the commission did not opine as to the credibility or not credibility of the employer the respondent in this matter and respectfully your honor the employer in this matter testified there was no other reason for mr ford to go to the basement so he's apparently ignoring the respondent as well and that's why we're saying let's cut to the chase yes everybody else except the employer walling was found incredible unbelievable though justice often observation we just don't even listen to them so you're saying you're left with one person they did not finding credible or unbelievable  she was she never spoke to him before he went down the stairs and she specifically testified to the entry fell down the stairs he was unconscious and she didn't speak to him then correct so how could she possibly know why he went downstairs based on his history of working on her with the abuse history and then we'll be able to we have to come to the conclusion that the man never goes in the basement unless he's working correct never ever ever correct and that was stated to by the employee at the employer said there was no reason for him to go to limit two times the legal limit for driving purposes your honor and again i i understand the point one eight five what alcohol level does not i mean that is something but it's a blood two reports and the first report is february fourth two thousand and eight the second report which is almost verbatim was march fourteenth two thousand and eight where he said initially was a pleasure talking about the case today but then when he went in it so somebody from the respondents attorney's office did contact him i'm assuming the february fourth report at least and perhaps my biased eyes is clearly not sufficient to preclude her going over to his next name the report says your honor that you can carve out of that testimony that there was no impaired judgment there was no increase reaction time based on her interactions with the to see there was no perceptual am going melody's or anywhere nation dr like it also states it is un likely unlikely not impossible unlikely that mr full would be able to perform his duties as a cook in a safe manner again unlikely is a far cry from if he couldn't perform his duties unlikely means well it's it's likely a doctor who never observed the claimant correct making these generalized statements correct about this level of all but you have a credible witness the employer who's bias should to the basement to take care of whatever he needed to take care had you known he was going would you have stopped him her answer no would you have if he had to meet cut cut meat slice meat grainy whatever would you have stopped him no he was fine but you have still the remaining problem of just the hofmann presented and that is she is saying there would be no reason for him to go other than work duty but that still does not go to what the reason was he went down and i mean how do you not now be how do we kind of that how i respond to that your honour's is we have a consistent course of conduct with this employee and i believe we have at least one area in the record where it came in that he was going down to take care of what he needed to do and i think we can read that as he was going down to perform a work function at a so he wasn't going down to talk to him it was your have to how do you know he wasn't going down just to talk to her i'm going to the basement to do anything so again we're if we're going to make the jump that he knew she was down and he wanted to say goodbye tour then why can't we make the equally plausible probably more probable conclusion that he was going to the basement to do what he always did to check to make sure the breakfast items were ready for the next day's breakfast so that he would be prepared when he got there four thirty in the morning there's ample testimony in the record that this is what mr ford always did make it seven days a week twenty everything every day of the week he did this  because this is a man who would never be outside the covers of the workers compensation i mean you have to be honest about that that that's what you're saying any time he would ever go into that basement he's covered a matter of what he was doing before that no matter what was happening he's covered it has to be your argument there when there's no evidence in the record to delineate why you went down there specifically and and that is my position and again given this employment relationship the employer allowed him this flex time to come back and do these items so i don't think it's fair to say that their relationship the employee and the employer had and had had for fifteen and a half years is suddenly going to be used against him is the point we'll get back to you're saying that's a reasonable inference that he was in the course of his employment and that's all we're talking about when he went down the stairs and fell right but the reason why is that why is it not a permissible inference that he was not who makes that decision and at what i'm if i misspoke earlier and i believe that there is information in the record that showed he went to the basement to take care of something is clearly defined you have to establish the conclusion opposite to the commission made to the inference that there wasn't sufficient proof so how could it be against the manifest weight of the happen as occlusion clearly give parents the hearsay statements that were excluded that judge kelly said should not have been excluded but they were they were excluded but you can from the record and we have the case on our brief from the record you know where the questions were going you know what the answers were going to be we know what was going that what the answer is going to be based on the questions before and the questions after in the record so whether or not the actual answer was excluded the arbitrator never asked for proof of claim we did not believe in proof when was necessary time we had the already in our brief on that point given that i mean we know what the answer was would be if you get it's i believe that it's from reading the questions leading up to in the questions after it is clear what the answer is going to proof there was not an offer of proof was or who he she does it to us from i believe the case law as we set forth in our in our brief shows that an offer of proof is not necessary if it's obvious from the form of the questions before and after  the multiple witnesses you're on who wins this commission from biased who believe also of i believe a few of the questions were of the respondent miss while he worked for fifteen years fifteen and a half years your honor now the other interesting thing is that and i realize it's it's in the province of the commission of the arbitrator determine credibility a review of the record doesn't seem to show the scene at the time of his death on new year's eve i can't write but the commission can take it into consideration say look we just don't believe it we think you're trying to sleep your favor her husband die he we want to see her get some collection so we'll all see what he would were his bloody hell if the employer says he was intoxicated how do you explain his blood alcohol level to begin to treat you milk that nobody ever disputed that he hadn't been drinking we don't dispute that he probably had the blood alcohol content a point why five here that we don't dispute at all i think it was mr novak who made the argument at the circuit court level of you know perhaps he's a functioning drug i can't talk to that but what i can tell you is based on what the witnesses testified to at the arbitration hearing including the employer he did not show any signs of impairment he was able to and one point i want to make there's been a discussion of he didn't enter as employment when he walked down the stairs basic workers compensation law which is that not everything that happens at work is compensable this case involves an injury to this police officer  described by her physician as heavy set elsewhere in the records as two hundred sixty pounds who while exiting her vehicle at the beginning of the day that this was at the police department the police department sub premises of course but she was not yet started just as she had not yet started your ship when she put her weight onto her left knee she felt pain  one the absence of preexisting symptoms and the quote mechanism of injury unquote made the case that the injury work related but his records when he first saw crucial for this case we have other cases getting up out of the chairs board of trustees we have cases getting up from a small preschool chair i don't know if any members of this court ever attended the types of things i did at one time where we have the preschool parent teacher conferences and we sit on these very little things like i've still been use that though the claimant did not prevail in hansel and gretel but she did not arising from that small chair it's not a very normal chair for people and she blew out her knee granted she had a preexisting problem but nonetheless hansel and gretel getting up three i cannot recall your honor i would not want to represent that they that they affirmed the commission or that they reversed i'm sorry sorry but the basic proposition again is that not everything that the gun belt the accessories all of those things in the commission found there was a causal connection between the claims work and the injury that we know the appropriate test is there some evidence in the record to support the several cases that are in the record here where other police officers were wearing nine and ten pounds but will just well just a few pointed out for them you know hitting our car with a full stronger sixty pounds i had you know i don't you know i've been gaining weight as i've been getting older i don't want to pounce on someone for their size and weight but that there is a great amount of evidence in the record to support this there's no serious disputing the evidence just is left knee injury is causally related to the statements of cause of connection are found they don't they don't tell us what those were of officers having injuries i do know that the chicago police department has changed vehicles recently but these are standard automobiles if they were that difficult to get into an thirty pounds the way down to them you're saying logically they shouldn't be affected but the commission found that it was why should we substitute our judgment for the commission based on your analysis of the real world your personal analysis of the real world all i'm sure that my eyes i'm relatively confident in my personal analysis of the real world because again i'm relying on what the petitioner said when she went to five factors she was just getting out of her vehicle as she put her weight be well again the conclusion that there is a causal connection based on the vest and on the belt and as i said i don't i don't know i don't as we pointed out in our reply brief the physics of this is the same no matter how we deal with it one exits a car by putting one's weight on one's left side this lady this was the first time she exited her vehicle on that day so all getting into and out of her vehicle forty times a day as far as i'm concerned is a non sequitur it really has nothing to do with why she injured her leg at that time during the course of the work week that number all the times where there is evidence in the record had this happened at the end of the day your honor if this happened at five after she had gotten into another for vehicle forty times we might not be standing before you independent reasons why this is a compensable claim the petitioner testifies that because of her protective vest gun belt nightstick radio she's a christmas tree of police equipment she says point blank it's more difficult to get out of my car how do i do it differently i twist and turn at the same time that's in the record it's the seventy one seventy two she also says that on this particular incident how did i get out of the car  as i put my foot down you have to obviously with all this gear and you have to twist and move that's a record see seventy three seventy four you know what the shirt that everybody was and do the same thing when they get out  shirt or it's winter time and i've got you know a thick coat on mean these police officers i don't understand how they can even sit down and be comfortable with all the stuff that they have to wear around their waist and then they have this protective vest on which is  it's somewhat flexible material it's not like wearing a coat of armor but it's a heavy thick material you move differently you move more stiffly if you're a police officer it's almost like having several of your lower like sure you do but you don't have a service revolver on your left hip that's going to put that left hip in a different position you don't have a i assume you wear a belt you probably don't wear a two inch thick heavy leather belt that's going to restrict the motion in the waist to fleece things that make it differently and then dr cole puts it all together and says it's the twisting and getting out of the car that is that the cause of the incident but that's just one service belt with all this stuff on it and her best way is an additional thirty pounds so if the straw that broke the camel's back is a compensable injury then the thirty pounds of her nice gear that adds ten percent to her body weight and if it's the weight that causes this incident itself the employer must take the claimant is obviously not i mean you know you have that we do have some medical testimony that because of their own medical testimony is that weight caused was run of the causes the weight placed on the knee was one of the causes of the injury to the knee but we don't know whether it's decisions one where the other that ever get to those absolute fine points the fact of the matter is it was one of the causes was the weight and part of that weight was the employer mandate of the year and that's not an insignificant amount of is employer mandated equipment i think that's the causal connection we need we also have you know maybe at some point in time twenty years ago a ford crown vic was the  brother the point is that there are multiple factors here that make that the what she was doing you needed and at the bottom of it at the end of day you're just like in the mother bill case that case could have been decided either way and either way would have been supported by the manifest w evidence this case it medically could have been decided either way if the arbitrator in a commission bipeds line and sinker into dr players report they could easily go deny compensation but you know back a player says she told me she got out of the car is a normal person would i'm not really sure what that means she was not responding to an emergency call she was not rushing out of the vehicle but that's not inconsistent with her testimony that she was twisting and turning to the the stuff that she was wearing so we all the histories of the medical providers are perfectly consistent i mean she doesn't want to say i was getting out of a crown vic but that doesn't mean she didn't get out of the crown vic or that the medical histor if i may just one point i would like to emphasize on the causal connection opinion dr cole has i believe i start to answer that question but then if used by the problem probably yes i  still trying to sort through that and i'll get to that but but i think i may have confused myself on that subject and gone off on a tangent however dr calls her there are two reasons for his opinion that it was work related in state that there's a there was work related one an absence of preexisting symptoms and to the mechanism of injury at the time he said that there was no mention of twisting the only history head was for just exiting the vehicle the reference to twisting came several months later in his records where that came from i don't know maybe he just assumed but at the time he said i think it's work related he said two things one absence of preexisting symptoms into  injury whatever that was all he knew about the mechanism in terms of his own history was that she was next in the vehicle and she felt pain if he had the other medical records than he would have learned from those fundamentally the same thing well there were pre