is evidence in the record which if undisputed would sustain a finding for the claimant such evidence is not sufficient if upon consideration of all testimony and circumstances in the record it appears the manifest weight of the out against is against the finding resolution of facts and credibility decisions are ordinarily for the commission but the on oyster creme court has noted there is a duty to set aside the commission findings when there are contrary to the manifest weight of the evidence in our case the commission found the ninety two thousand eight hundred and seventeen incident aggravated partner's preexisting condition because quote new sentiments interfere with his ability to work and required surgery the circuit court upheld the commission asserting there was a substantial foundation due up hole but it failed that indicate that even if there is testimony which if an contradicted would be sufficient to sustain the commission's award the court has a duty to set aside the award if the award is clearly against the manifest weight of the evidence and an opposite conclusion is clearly apparent i struck when we talk about that i think we know the standard are you the opposite conclusion means i mean to cut to the chase in this case there appears to be no question that the claimant had a preexisting condition is that correct yes or you're well aware of the well sort of rule that it work or the injury can be compensable human if it's not the sole or the principle cause of the claimants condition of a being and that the claim establish a causal connection if your she can show that a work related injury played a role in egg or a fading or accelerating a preexisting condition and the claimant of course will point out the a preexisting condition that was ever vetted by the work related injury well st of all the symptoms do not change the symptoms are the same as they were before i was going to get to that th time he went to the doctor before you can't get worse than ten out of time and the pain is d consistently from christmas of two thousand and fifteen down the right leg the pain is in the bond the pain is always there it's unbearable sharp it's annoying it's felt like it was in his own it was hurting every day i mean those are all prior to this incident so i mean they can say whatever they want to say but the records of the records i mean it's all well documented how severe and and and prolific his problems were before this incident and the treatment that he was undergoing wasn't wasn't working because ten days before this incident he's in the doctor's office making the same complaints that he'd been making for one year and nine months with both doctors advising that conservative care would last at the six months and after that surgery is a reasonable recommendation he blew past  conservative care marker by june one of two thousand and sixteen and was still doing the same thing with no noted improvement just munching on narcotics for one year and nine months even ten days before he went to us and telling his coworker that he's having this consistent horrible back pain that he doesn't know what to do about and it won't go away and let me ask you this question obviously the commission credited because asian opinion a doctor or net over the i prior medical records that the history was completely false and the fact that he said this gentleman had low back pain two years ago had one course of physical therapy and responded well each one of those things is false if you look let's break it down the pain before the pain before was ten out of ten consistent always present unbearable sharp no i felt like he was in his bone and hurting every day he only had physical therapy that's not true he had and four pain he asked for a referral the pain management he saw pain management even though he denied it it's in the records that he told the doctor he was going to a management and he'd discussed invasive procedures such as a nerve radio frequency nerv and said he responded well he didn't respond well it consistent severe low back and right like pain complaints even ten days before this incident which doctors or not clearly didn't see that record because he said he didn't have any records with handwritten dates on him and those records have handwritten dates where dr shimming he was taking our cats at work he was limping is consistently langan on the job which means if you're going down you can't do the work he's consistently walking hunched over for the witnesses at work and he has problems just regular problems a daily life sitting standing sleeping and it was noted he was functionally limited these are all the same problems that he's complaining about after and they can't could have gotten any worse because  week before the trial he says he did did a drug statewide drug search on this gentleman and found no prior evidence of narcotic usage i mean that is incredible if you saw any there's a mountain of records that go through the extent in nature of how often he was taking narcotics i mean if you didn't know that he if he doesn't know that he was taking narcotics and there's no prior evidence to it how can you possibly allow an award to stand when the when the ward hinges on dr gordon that's opinions and he had a false inaccurate and the fact of history that he reiterated one week before the trial and one key piece of evidence was this  usage because even testified that long term knew catechisms from the back quote could be a factor quote i don't have any information regarding that and quote i'd have to look at that with regard to whether he would decide medical causation the other point is dr cohen and also testified in this is really important additional information if shown to be in conflict or incorrect was what i have could cause me to change my opinion my opinion is based on the information and fact additional information which would be inconsistent with the nec could cause me to change my opinion absolutely there is a mountain of evidence that's in conflict with his history which is two years no significant difference and he said this guy failed conservative care which dr kitchen's a doctor going at agrees with because it was more than six months and after feeling conservative care that he's a surgical candidate which d dr kitchen said the surgery now is the same surgeries before which by the way is different in the schroeder case because a stroke or case there was surgery recommendation before the incident but after the incident the surgery changed was a completely different surgery showed more degenerative changes from the prior to surgeries the the lady had that's completely different in this case this case the m r i scans before and after showed no significant changes in the those are not the same tastes but about the claimant after the accident does not compel reversal of commissions causation findings when the claimant also experience some changes in the ability to work so how to schroeder help you well the fact i mean  surgeries one surgery before the recommendation before was different than the one it was recommended after the incident after cause a different surgery and the other thing is that the symptoms in my case of the same again you have these records are schroeder says the fact that you have that does not compel reversal of the commission's causation funny well i mean our case has a lot of different more than i mean that's one point but i mean there's more to it than that and in or the doctor he as back had a complete understanding of the past medical history titer cornet doesn't remotely have a complete understanding of the past medical history that's a big difference so that you're saying that this case is i don't see how public policy could warrant giving an award somebody on medical expert testimony where the doctor either knew that he was new that he had he had seen these reports and knew about the narcotics and then moved why did the quarter misrepresented to the court d that he had no prior evidence of narcotics or he never knew about it at all those are the only two options yasbeck knew intro to or add rethink that happened with a prior history did it in kitchens did kitchens knew what went on in what it happened cornet did it so i thought it's in it's blatantly clear from the records and even one week before the trial that still reentering same defective false history and that was after his deposition when he should a known that his history was false and the fact that so what is he trying to do here is he trying to what misrepresent to the court who was not responding well to the medical care that both doctors agree that if you fail conservative care after six months surgery is a reasonable recommendation and this gentleman had failed conservative care way before this incident in fact he was still in problems ten days before and dr gore not could have seen that record because if he had it references narcotics and he wouldn't put together a report one week before saying there was no evidence of prior use narcotics let me ask you i think an important question for the accident claimant was complaining of pain as you pointed out in fairness you was really conservatively did he miss any work due to the back pain before the accident you're talking about he did miss work because one of the records from january th of two thousand and sixteen says that he was getting medical care because he was trying to get back to work because of his pain than anybody recommend surgery prior to the x nobody recommend in the rocket surgery but dr kitchen's address that just because nobody recommended surgery doesn't mean it wasn't a surgical candidate and both doctors agree that i mean just because you have cancer and nobody says you need treatment are surgery doesn't mean you was worried about his physical condition and those text messages happened well before there were any insurance companies or lawyers involved the only employee that that that it was greg that initiated the contract contact bill offered a call  entire time no prior workers compensation play this tape is important it's axiomatic about the legal principle that the employer takes the employee as he finds them why because it's undisputed that his current supervisor pet i that he called and coach gregg after working with them for years prior to the job and that we because he was a good and dependable employee who never missed work and so he wanted him to come work as a laborer on his crew and in fact greg did that for another over three years for this employer that same supervisor knew while full well that greg had that problem and understood those back problems but also testified that  never missed work as a result of those back problems every that after we testified under oath and all medical records show that greg was functionally worse after the theft and with regard to his work out if he had not missed work before this accident one in the window and i think thousands of in records is not evidence to contradict it was due to testimony of four different people who testified at arbitration  and is functional that is had decreased secondary sabbat pain related to being struck by a bobcat and not only did he make that note but he took the further action of taking greg off work until he could be seen by the bilateral which had intermittently which had never been documented before they were never right life of them before this accident that depictions of knowledge that greg had not returned baseliner pre injury status and interestingly dr kitchen the medical provider recommended nothing and the e r that took him off work and doctor to mend after that accident that said you can no longer work and now you need to  was playing some plans were new and different it would be important for him to go see a physician to determine the change of those i read this rather case very differently than my opponent in this case my reading is that after two prior surgeries with significant time off work the injured worker received a rd surgical recommendation instead of proceeding with that surgery she got off a social security disability and went back to work for only nine months where she had an undisputed accident that took her off work and she went back and there was the same have elegy in the same surgery and you held court affirming the condition that this was related because it was after a period of relative surgical conservative care prior to the accident you never even had an injection he certainly had never visited a surgeon he certainly did not have a surgical recommendation and all as and it shows that he was working for beauty with no restrictions was consistently off work prior to this accident as a result of his low back pain again none of that is and you haven't backed up or not said i will take all the records you show me a stroop i've read dr kitchens report i think it is true seventeen aggravated addition or as preexisting condition as a new symptom and increasing the severity of the preexisting condition which thereafter interfered with his ability to work and required more expensive medical treatment including  said he was fine being a good employee is good but with regard to the issues today that's we're talking about medical issues so i don't see how that's relevant  n thing that was touched upon was noted that every doctor's that he had an increase in symptoms well guess what the emergency room on eleven dr shu min and dr cornet on october didn't have any of these prior medical records so there's no way that they could say that the symptoms had increased or got worse because none of them had seen the prior medical records where every single time this guy assange ten out of ten pain pain in my bone i'm always having it i'm hurting every day i mean i don't know how as it did how as a physician you could say that it's increased when you don't have a basis to be able to to compare what was in whether it was increased from what was going on then as compared to accident before the accident was always or even though he had back problems after the accident can't work on number one it's purely subjective to say afterwards that he can't work it's obviously in his favor to do when you come into their office and you know he's telling them what he's telling them that we all know that dr gordon is well versed in worker's compensation and has handled numerous cases you know with with and it's even  ans the fact remains that based on the evidence in this record there was a change in functionality he worked before the accident didn't work after the accident was held off of work after the accident by a doctor now how the ad is to be interpreted in the way to be given to the testimony is a matter for the commission it's not a matter for us well in terms of saying he quote worked yeah he showed up but if you look at the medical records he was what having serious functional problems standing walking sitting is lying down on the job if you're lying down on the testified he had that was consistently asking him if he was ok they all knew that he was lying on the job they sensually needed a worker and they had known him so they hired because they knew who he was and they were he was kerik when he's laying down on the job he's taking narcotics at work because he's obviously having problems you're not answering my question or my only my only point is whether or not he was lying down on the job my reading of the record indicated that he lied that laid down the stretches back out when he had the opportunity and there wasn't any complaint about him not performing his duties after he went back i also don't recall in the record the employer knowing or complaining about his nor how to use while i was at work that they didn't know he was taking narcotics all they knew that he was taking was a white record shows that there were no complaints about his work performance before during or after the act of i mean if they were knew he was taking narcotics and out of the job site using equipment and and stuff like that maybe there would have been a problem but you know he never said anything to them about do i ask you something i don't think that can be disputed or an misinterpreted miss cooksey reference that you ask your expert dr kitchens at the hearing when the claim became a candidate for surgery and the doctor couldn't say after the accident no that's not true when you say that he likes what he does he said that he became a surgical candidate d and i don't know the exact failed it was more than that and also he had failed conservative care he was still a narcotic he was still complaining a back in like pain and dr kitchen's noted that in that record ten days before the incident he told dr schumann dr schumann wrote down that he had