i think the facts disagree with that what the circuit court could not do you didn't have the province to do was to substitute their judgment for the commissions so when we examine the facts in a case the question is whether the facts support commissions finding in any way its case begins on december twentieth two thousand and five miss now is at home slips and falls on ice she goes to the e r and reports that she has a shoulder injury the record reads forty three year old female felt at eight a today at home she injured her right shoulder she reached the pain at three ten she has never had this before on examination there's no bruising or swelling but she can be out there you degrees and she's tender both interiorly and laterally to the shoulder joint an x ray taken at the time was negative for broken bones found diagnosis there contrition tendonitis to the right shoulder she's given a sling and she's to follow up with dr oz my from this point on she treats with th us mine by way of background doctor as money is board certified is a position from the united kingdom he's not an orthopedist he's not board certified in america and he's not a shoulder surgeon or expert and he had previously performed a hysterectomy on this now but according to dr oz mine is now never told him that her injury occurred at work previous to two thousand and five he's a family physician and starting in sixteen times and like i said this covered all types of ailments yet she would have you believe that over that period of time she was having shoulder pain and never said a word of it to dr as mine the questions raised during the point out some of the continuing flaws in his opinion where he's where he says things like if the doctors thought there was an acute care he would have got an x ray there was an x ray background i just never reviewed that dress and i said if you fell on ice with outstretched hand you would normally get a fracture well i think that goes against reason people for all the time it doesn't mean they're fracturing bones in their hands with their arms and according to dr oz manny you can fall on ice and suffer a sprained your shoulder but really know what she did for a living but yet he found it ok to say that her shoulder symptoms were related to her job creation right and dr carlson he's a board certified orthopedist and showed him his opinions he was able to explain that was not raised in the briefs and if this is an appropriate for me to raise by all means i would invite you to tell me that it's inappropriate is rather there is appropriate jurisdiction here i just took over the file but the circuit court actually reversed us on x and cause a connection so in reviewing the file that i just took all right just the question that i have is why jurisdiction wasn't wasn't raised in the brief and i do apologize that it was not raised in our brave as whether the should have gone back to the commission finest for findings i brought a war basically on permanency and all other issues based upon the fact that the circuit court reversed on accident and again if i am going to be reasonable to conclude that the commission or the circuit court ma'am or implied was that we've strayed or treaters says well i think what the circuit court and again if i'm bringing up an issue that is inappropriate by all means stop me because i just took over this file a couple of weeks ago didn't do to an attorney leaving but it was always my understanding i have to do to say yes you know you could have found something in that two weeks if you would raise this issue and again i probably should have but connection that there then have to be findings of fact by the commission before we come back up here so i just wanted to point that out i do apologize as i think it may be inappropriate to bring it up at this point but i'm concerned that there could be a issue here and there may be one here earlier than we should be obviously look at what about the mirrors of this regarding the mayor to the case in the manifest way to the evidence what the commission did here is they essentially adopted dr carlson's opinion and i understand a manifest weight here is a high burden however the problem dr carlson's opinion is not that oh i'm i'm going to sit here and argue that they just should choose between the testifying and i'm sure you see several cases even at this level where there may be no testimony it's just medical evidence dr green will put right again this february seventh of two thousand and six records and it's quoted on page five of our findings come to that conclusion is erroneous because you could try and win a case with no testimony the question is what does the medical evidence show dr gabriel's records consistently point out that she had chronic changes but she had changes consistent with repetitive trauma here and when you come back to the theory of a contributory cause the fact that she had these chronic findings that she had findings in the operative report and findings that were noted not only by dr asami but also d problems while his conclusions are based upon mad but to say she had no history of medical treatment for shoulder problems it's true to say that she had no history of shoulder problems i mean the commission didn't come out and say believe she testified that she had a history of shoulder problems but she never sought medical treatment for them but that she was having pain there was significant testimony here that this was a very good rocker and she was having problems with her shoulder and so the question becomes on you know is she punished for the fact that until she fell she went n i n does it really matter if the fall also contributed and i think although you know we're looking at the commission decision here the ar into the the gold standard in the intervening accidental a little bit more but the question becomes couldn't they have both contributed and was or enough here to cut off because of connection there are significant medical evidence here and dr gabriel's medical think i would suggest that the alpha city commission is apparent here i mean we have records of dr gabriel an operative reports specifically laying out that she had chronic inflammation and that she had these  commission to basically just discount his medical records and say he did not for a theory you know what maybe you want to whine that you should've gotten his testimony wrong there's no requirement that you have his testimony it is to buy clearly in the medical records to suggest because there is no deposition transcript of his opinion it doesn't mean that his opinion is not in the rock and his opinions are on the record and his opinion supported the finding here that she had when findings are no sure are consistent with eight and so the fact that there is overwhelming medical evidence here but this woman shoulder had what was much more than what would be found on an acute fall and even carlson admitted that it could be tr compensable and i think that's why the arbitrator maybe went into the ball roll issue which the commission did not touch or dollars was there enough of an intervening accident if something had developed where work would still not be on the hook and i think the answer is it would still be compensable because there's no indication that she was that m r i which is what they had talked about and wrong or that her condition had been completely resolved and the spall created a completely new condition there may be some overlap here as to what happened in the fall and what was chronic but there is no doubt and this is i guess why i feel so strongly that this is against a manifest with the evidence there is no doubt that there were chronic repetitive deep changes that had gone on in this room an that were not caused by a fall and that a carlson couldn't even come out and say no absolutely everything was caused by a fall he said well it's hard to top and this is someone who hadn't seen the m r i films maybe it's not so hard to tell when you look at them and so medical evidence here show was not necessarily that nothing happened from the fall but that most of this is consistent with repetitive strain and chronic jr has that would have taken place before this fall and again in this m r i in these reports that officers have january fourth i mean the m r i is december twenty ninth we're talking about a small period of time here where the looking at this and saying these are chronic changes this is from repetitive strain and work he doctor said was so this would fit with her history of having shoulder pain prior to her tear so he's not saying that eric sr previously saying that this third just happened and so even if we believe that she had pain