failed to prove any element of this claim in this matter he was a ten year employee of chicago white metal casting which is a light manufacturing operation they use light metals that is inks in the magnesium he assembles he pulls cards from boxes he places them into molds he removes them about a minute later he diverse them he uses an ear hoses all performed at waist height if we are to to understand exactly what mr cooley did that will cause you to reverse this decision because he draws the conclusion that there is some element height is removed one box from a stack of five and they answered you believe his testimony that those boxes were stacked five times the response witness and three of the respondents exhibits demonstrated that those boxes her ocean requirements can only be stacked or high does a chest height and not a child or even if we were to believe mr cooley that he occasionally had to lift a box that was at that level by his own testimony the entire process would occur one in five times for seventy eight seconds in majority in fact ninety nine point nine percent of his work activity is performed or below chest height the only other house ability activity he could demonstrate that was in or about chest height involved using what he called up to eleven machine and there was sufficient video evidence stansell video evidence of  number of the machines that he had worked on the evidence demonstrated that in the year preceeding his claim to be accident of november fifth two thousand and five he worked on their two eleven machine two days out of two hundred sixty one agrawal who was his coworker and supervisor testified that even matter machine does not require overhead work because you stand on a platform to put the pieces in so the bottom line is  that he has a right shoulder injury because he does manual labor never takes a history of what he does and never asks him any questions never all kinds specifically as to what if any specific activities caused or contributed to the right shoulder condition the doctor who does review those work activities dr tom or ian's concludes there simply isn't sufficient overhead work to cause or contribute to this convention one anyway further that this specific condition is diagnosed with is not something that develops from a reprieve it of trauma situation rather from an acute trauma which there is simply no evidence up well higher than the chest or waist height and that two eleven machine was the one that he had only worked on for two days and they had to eleven machine was the one that if he stood on the platform which is frankly the only way he could access it he would be a that was twenty percent of any of one of his work days other than i think it's early but it's well ok but it's even better than that because you look at all of the machines you look at what he admits to doing and he's very very detailed about how much time he spends you know working with these parts and ways to hide at the table which is a majority of his job is very specific about putting these molds in and out of machine again somewhere between chest and waist height not over the only machine that you can point to that could potentially be overhead is the two alive a machine which he almost never uses two days and the year before the accident and which mr gross says you don't access by reaching up you access by reaching at this height because you're standing on a and then i'm doing everything weighs them c p c accurate that it's ever stack to five high and the response witness in the response evidence challenges that it ever gets and let's say he's telling the truth every now and then those one of five by our first seven seconds in an overall workday maybe once or twice a day and we're supposed to believe that causes the right label to hear and then look at what he tells the doctors in one place he says the problems began in january of two thousand and five in august of two thousand and five he tells his employer is having problems with the right shoulder that are not work related and as a result of which he doesn't want to work the sunday shift anymore he related to his work duties he then continues working full duty until he goes off on group disability in february and he has surgery or there's something wrong with that in order for what is that notice out it doesn't specifically indicate what the condition is what activity it's related to and in fact it's it's on top of his already having told his supervisor i've got a right shoulder problem but it's not work related and that's back in know heart of the reason that we come back to all of this information and send it to a doctors i don't need to waste my client's time with you guys and you don't need me to waste my time with you guys i'm sending all of the information to the doctor the written job descriptions the medical records here's the patient here are one he actually does you tell me and he says that's not sufficient overhead work we're not talking about an electrician we're not talking about somebody who's doing this all day long we've got somebody who does not do over at work and it is not sufficient to cause this significant condition which by the ways usually as a result of an acute trauma to where we wasn't medium duty it was actually lighter than that evidently and he seemed very persuaded by the fact that mr cooley had an interpreter with him in court which i would strongly encourage anyone for whom english is not a first language to utilize because we're asking tough questions on direct and cross examination in the end work push the white metal and communicated with every employee there in english for ten years for these reasons we would ask that the editor in commissions decisions be reversed most importantly that you find upon careful review of what this man actually did but he did not do overhead work and he certainly did not  overhead work to the twenty percent that would be required that there is no accidental injury and that there is no entitlement to any benefits including having failed to prove in title meant a permanent disability we did not because he had no opinion that he was incapable of working the abseil he was no we did down he was cleared to at least light duty he made no effort to look for work and light duty was actually his work level with this employer work in order to make a compensable injury but if you look at the evidence in this case there were twenty three different machines that he worked on cooley testified that sixty percent of the machines were higher machines where he had to work at shoulder level forty percent were smaller machines now granted the two eleven machine was a different type of machine where you had to go up on a platform and that did require overhead knowledge is they have the employees are required to do overhead lifting and they said seventeen percent of the time they do overhead with the kool aid estimated to be twenty percent so i think there was enough evidence there for the commission to conclude that the petitioner did in fact perform that type of work if you look at the case but also it's a matter of credibility here it's a matter of looking at a growers testimony versus the testimony of kool a growl i didn't even know how tall he was but i asked my cross examination well how tall are you i don't know five six five nine a reasonable person would know how tall they are he was taller than cooling cool and was only five foot two inches tall sixty two inches in height so if you take a step at a four boxes not even five four we have eight inches in height if you take five faxes and step them up here now with one hundred inches so and yet by his own testimony he said that some of the boxes would contain four hundred forty parts of three to four ounce pieces but with you do the math that's over eighty two pounds so we're not necessarily talking about just working credibility issue it's certainly not against the manifest weight of the evidence now when we look at the florida evidence according to cast team it's now flawed cooling went in to see his doctor  did he saw that no a week later clearly they had noticed this petition or he had a work related injury involving his shoulder and what's even more remarkable the respondent in this case hired a company called gen x and gen x did all kinds of rehab reports and were following the petitioner around and to come down and claim well we didn't really know about this is absurd as far as notices inserted clearly casting he had notice of the injury i'm sure they're not happy with the fact that the commission made this man a prominent total disability but they did nothing to try to take this man back to work after he had the surgery f three a permanent restrictions we hired a vocational roxburgh he did vocational testing he said that the petitioner was by able to read for comprehension or styling he only had a fifth grade math education he spoke broken english he failed the citizenship test twice when he tried to take it so i think the only question here is is there a stable labor market and there's not according to this vocational expert there is no stable labor market for this type of person who is now fifty or fifty years of age at this point speaks broken english and a laborer all his life he has limited trade experience and the respondent took no action to do anything for this man to try to get him back to work take him back with restrictions hire their vocal vocational expert when you look at all the evidence in this case it's clearly not against the manifest weight of the evidence and we're requesting that this court affirm the commission's decision thank you