my name is katherine levine and i'm here on behalf of the respondent i am pleased to be before you today to discuss the respondents appeal from the circuit court decisions sustained a compensable injury no dispute about that two days after his injury he went to the company clinic and like to the restrictions were imposed and those restrictions were followed from the onset by the employer for a period of fifteen months on june twelfth two thousand and eleven the point with respondent was terminated when they learned through store surveillance videotape that he had stolen cigarettes from his employer on more than one occasion and responded appealed only on the issue of t t d all over aspects of the decision was were accepted in a unanimous decision on october fifth two thousand and twelve the commission reversed the arbitrator's findings that petitioner was entitled to t t t benefits and found that his actions were tantamount to a refusal of the right to do work which was one of the exceptions outlined in the supreme court's decision of interstate scaffolding the co decision was clear in prefacing that under the circumstances of this case the mid to sick case they found that the petition to refuse or sponsor ongoing offer of work within his physical restrictions i believe that the commission's use of the words under the circumstances of this case is very relevant and important in understanding the mindset their mindset in  the province of the commission to german factual issues such as causal connection medical causation whether an employee is entitle to t t t benefits and p p benefits and it is up to the commission as the fact finder to decide what weight to be given to the evidence and they are entitled to draw on reasonable inferences from the evidence that is presented and they are entitled to look to the credibility of the witnesses and it's and  case because of the commission's expertise in the area of work comp its findings should not be disturbed on review unless they are against the manifest weight of the evidence and as you all well know the test for whether the co decision is supported by the manifest weight of the evidence is not whether the reviewing court might reach an opposite decision but it's whether there is sufficient factual evidence in the record to support the commission's decision and justice hoffman if i may quote from you from the  second case that was presented today where you correctly pointed out that there could be result a in result b as long as there is evidence the record in the record to support result a then the commission's decision should be up helt i would like to drive the court's attention to judge wheaton circuit court decision her discussion where she specifically stated this case quote this case can go either way that was those who are words given that she'll cry that way there was no reason for her to reverse the commission because she is essentially stating that the that there is fact the factual basis for the commission's decision she then pointed out correctly how the facts of this case are different from interstate scaffolding and she was one hundred percent right about that the only thing this that similar between mr mattoo sex case and the interstate scaffolding case is that both individuals were terminated while working light duty mr the evidence presented in the mint to sack ace is either invited and unequivocal that he knew of a policy that was in place a no no he testified that he knew that he would be terminated he also testified that he knew he would be removed from white to work but he knew that if he if he was terminated he would no longer have that right to the work that was that was being accommodate d for a period of fifteen months already who wouldn't expect to get terminated they were caught stealing from well people who don't know if there is a policy in place and the facts of this case the facts that were presented that were above and show that the petitioner knew of the policy under your argument though i mean i mean it seems to me that anybody caught stealing by their employer would be unable to draw t t d benefits because i this case was passed pacific i don't believe the commission was trying to create a new exception and carve out a new exception i think that they made a reasonable inference from the facts that were presented which we did not have an interstate scaffolding and quite frankly we haven't had  other case these facts so i think each situation like this has to be analyzed on a fact by fact basis to determine whether there is a reasonable basis to conclude the way the commission dead is a quote from interstate scaffolding and employee using title to receive workers compensation benefits as a result of a work related injury is later terminated for conduct unrelated to the injury the employer's obligation to the t t d workers compensation and they outlined the exceptions which are if an employee refuses to submit to medical or surgical or hospital treatment he fails to cooperate in good faith with rehabilitation efforts or he refuses work falling within a special restrictions prescribed by his doctor and the court went through their analysis and they specifically inferred from the actions of the petitioner that that he met the third exception that he refused work falling within his restrictions prescribe absolutely i still think you have to go through the process of determining whether you have an employee who is aware of a policy whether the policy is being in the policy practice wasn't like he didn't usual work wasn't like he was calling in he came to court and acknowledged that he knew that this would remove him but he knew he would no longer do the right duty and therefore i think this case is different from any other case it's been before you and that is what the point that the commission was trying to make in their decision that under the circumstances of this particular case they were not trying to open this up and make it a broad exception they were analyzing it based on the facts that were presented to them and they made their decision based on their and they are entitled to make those reasonable inferences as the commission fact finder court didn't choose good only room right to the absolute rule as long as he's not reached emeline he collects the t t t yes spike we can't forget that they specifically outlined exceptions while they discussed them and so they're there and they're for the commission to use and the commission did that in this case they analyze whether whether the facts of this case fall right into one of those which is the third was the third one th well i don't think that the commission went down that road either which is what the circuit court judge said that that they did and they did and they did not they did not look at the reason they didn't analyze it they didn't turn in if it was cracked or not cracked they looked at his actions the testimony i think that the general policy is that there is not an automatic mechanical approach to terminating and that your commission is not allowed to analyze whether the discharge was proper are not that's what i think came out of interstate scaffolding but i also think what you well we respectfully disagree with think that that that the case addresses circumstances in which t d d can be terminated and we believe the commission looks to those circumstances and in interstate scaffolding the issue is not presented and the court specifically stated here are these three factors none of these exist in this case counsel let me ask you a different question than that relates to standard of review you argue manifest weight standard to be applied you're reviewing the employee has employment has been terminated as an unqualified or absolute right the temporary full disability benefits so long as the employees in goshen is not stabilized in the employees under light duty structures it goes on in several well it could except that the manifest weight asks us to look at the factual evidence in the record and whether it supports the commission's decision and i believe that it does if they use the law if they applied the wrong law to the in its final paragraph seem to say that it is vested with some discretion in terminating t t d benefits in certain cases involving point terminations if you look at the  worries to those powers which are granted by the legislature is just as hot and pointed out i appreciate what wal mart's up here saying and what every other employer is going to say in response to their has said in response the workers compensation commission and we're going to turn it into the some sort of mini department employment security because and  ascent and interstate scaffolding pointed out i want to see gray's keys you've got to have some format you've got to have some guidelines if you're going to start talking about terminations employment and polish and all conduct in there was for four points they put in the employee violated a rule the employee was fired because of that violation would ordinarily result interpretation of a non disabled employee and the violation was voluntarily and not caused by the disability were going to  adult criteria to that laundry list from seeker is it's now say that we now have to show that the employee knew such conduct result in his terminations well first of all those guidelines are the law they're not contained in the act