my name is peter several of and i represent the apollo monterey mushrooms and the matter in this case are for your honour's this afternoon we have a case where there was a cross with application of a loss of the facts on the part of the commission drafting the opinion that was adopted by the commission consequently your school question of course does the record and appeal contain any transcripts of the witness's testimony in the section nineteen be hearing or any of the that would be my bride and i didn't see that it wasn't in the record when i initially got it from the court it was only much later that i that i realize that because it may weigh against you in some of these which are decided in my brief and struck us as approved medical permanent part of this ability require statements either by testimony or medical treatment records but the claimant is incapable of performing quote any type of work and quote and that is not at all what employment that is not the language we're looking for this is the language that brought us into the odd lot examination of the issues here in sequel were instructed by the court that was necessary to there right now the commission make a finding specifically that claimants was criminally a totally disabled based upon the medical evidence and they find they found that based cited the doctor the philips the term and whether she could be competitively employment so to sum it up very simply you're saying that element of proving permanent total disability there is no evidence that she was medically prohibited from being seeking employment correct correct because there is no testimony or evidence that she is prohibited from doing any work correct ok so now we have two other approaches what are obviously employable rather than obviously unemployed of all there's no indication anywhere that she's obviously on employable those cases from what i can see are catastrophic cases this clearly doesn't fall into that  evidence of the position or is on able to be competitively employed or evidence of the diligent job search we don't have any of that here there's nothing there's no vocational cut them off even the doctor i was suggesting that would evil will never be able to return her competitive employment or her position of monitoring mushrooms and in light of her language limitations and her positive educational experience just probably permanently and totally disabled from any competitive employment as it would have to be sedentary work or best base work and she does not have the skills to carry that out that's ok final testimony echoes that that's what you said right out of the box and that's what the ec competitively employable because of all these factors but that's his mindset that she if anything would have to prove a permanent part of this bill so was i i'm jack to those opinions the arbitrator on page fifty five dollars of the record says that she's going to rule on those opinions if you look at where those opinions are my objections are contained within the record to sixty five dollars and to sixty seven dollars she doesn't rule on those objections and then making it worse and relies upon those so there's no evidence that she didn't give it any weight in fact she gave a great weight so to me that is clearly an abuse of her discretion  opinion to support the award and it was not why did not support it work and then support the war because it's not an opinion that she can't do any work it's an opinion that she is what did he say permanently and totally disabled for meaningful or gainful employment that is not i can't do any work now if you had showed off with a job search and vocational testimony combined with that opinion then i would be in trouble and i wouldn't be sitting here i'm actually sitting here in front of you put a i would be i have no chance because then she would have proven with disability but she didn't go to she was crying to go down that road and she didn't take one step down that path but with it his eyes she's permanently and totally disabled from any work i also wouldn't be here today i'm here today because every element of the medical permanent home of disability award that was put forth by the commission is mired in this vocational rehabilitation situation with insane meaningful or gainful employment about a medical opinion for it to be meaningful or think all that up from a vocational rehabilitation special make that determination that's not a medical determination and that's why it doesn't support you job and she sustained herself with this type of job is a dame full right is a meaningful and doing all those are all factors and need to be weighed by vocational rehabilitation specialist they do not support an award of a medical permanent  l briefly with regard to the award of penalties the commission seem to think that the report that there was no new report from dr salafis that was relied upon by the employer in this case and that's just not true there were there was a new report there was a new evaluation a new physical examination of findings turned out to be saying what they were honest findings they were on the findings the st time they were on the findings the nd time if not swayed by sharing what the status of the litigation was are it was a completely unbiased opinion is that that realistic that's not  supported by the evidence you know who's to say that the opinions were already rejected that's not true that means we're not rejected because they didn't exist the kind of a st trial all those reasons where the employer seems to find that the record is devoid of any facts supporting the award of committee total disability it remains our position that the record impacts capsule of facts that support the alert i would  note st and foremost that there is only one physician in these entire proceedings who say said there's not a causal connection and that my client is not permanently and totally disabled and is the respondent section twelve physician d disabled play meant because of her injury but also those other factors his experience in training individuals and trying to get each individual patient actually full employment as part of his medical profession i would contend gives him an adequate basis to make that opinion haven't we in prior decisions determine that eilert should stop giving vocational rehabilitation pinions and restrict themselves to medical were testimony that he believed she was totally and permanently disabled based on language added to the educational experience should never have considered by the commission and and i certainly would contend that employment in and of itself must be meaningful or gainful in nature otherwise what is the point further you could look at dr i listen opinions take out the all not because of narcotic use but what he continually points out is the chronic ongoing pain that is mine this suffers from and once or two hours a day every once in a while does make someone gainfully employed at will and i would contend that further is support that she is permanently and totally disabled whether it be through his medical opinion or from the fact that she is obviously an employer is it your position  do we have any way of knowing whether the commission would have decided this case the same way if the commission had totally discarded islands testimony i don't know that the record provides us with any indication as to how they would have ruled had they disregarded dr ayers testimony so we cannot make a definitive determination that we could affirm this record based solely on the phillips's testimony because we don't know what the commission would and it's not reversible but at worst if we disregard dr ayers we have the record we have my client's testimony we have the evidence that ms man that has a th grade education out of mexico she does not speak english and she cannot communicate in english her only job experience is thirteen years with the employer in this instance doing having intensive manual labor that she has chronic pain she can't walk well and she has core nishan issues she struggles to put on shoes socks even undergarments she struggles with the majority of her daily living tasks and those items decision they are the ones who have the ability to best judge the credibility of witnesses and it was in their purview and they didn't find her to be credible they did not find her complaints pain or anything about her testimony to not being credible a the fact that my client was thirty eight years old when has occurred that she has chronic pain into both legs that she struggles to walk that she cannot drive because it's not safe that sh lift a gallon of milk without paying and the only employment she has ever known is manual labor and she has not been offered a job after the employer she was unable to get a job back from the employer the extent of her injury the ongoing pain issues struggles to walk to said she stands to even care for her children to go through anything in daily life coupled with her permanent restrictions i don't have evidence of job searches i have to concede those points however if you look under the on law theory is there a job market for an individual with mids in minutes mantises condition and end of the job college diploma shows the education of the lead to a ten year old a woman who has trouble sitting standing all the factors i previously argued that under that theory and there's in regard to counsel's argument regard to the penalties in attorney's fees being commission found that the need to lay in the payment of benefits was vexatious unreasonable and unjustified as they continue to rely upon the opinion of dr it's written based on input testimony and medical evidence that would be used to prove a lot are going to total and then it's found to be a medical permanent hole with regard to obviously unemployable so if we look at each one of the three methods that this claimant could have used to prove permanent total disability you can start mixing and matching to come up with the result that you want and that's what the commissions in this case  into account your age as well as the effects of the entry in the condition of your lumbar spine is that exist today in symptoms provoked by those injuries it is my pain and that you are currently permanently in total in the table for meaningful  work injury of an eleven on nine and caught so you're right that fact is a factor when one of them is her age why does that have anything to do with her medical opinion that also goes to her  rehabilitation potential well look what would be a medical opinion that stands only as a medical opinion but what it may be in this case i mean hypothetically would be a medical opinion as a medical can the two reported pollak are cases i found that address that issue or see call in june and in all of the court was looking for the language the claimant cannot perform any work from a medical professional and how do you taled that that that's a conclusion of the testimony have to be support that conclusion and what does that testimony have to employees were denying permanent holly hall disability so it was the absence of those of that language that the court focused on when denying based on medical permanence all this ability fill them let's go the reverse coin hypothetically what would be sufficient medical basis for a conclusion like that medical what was it what would be the testimony of the physicians to make it medical i guess restrictions would have to be so severe that it's where we're going i don't know messed up in this area there's gotta be something that's unique to being the position and that you have to test by two that would lead to a conclusion that medically you were quote skeletal of my actual medical which is why people go to medical school to know that's the correct yeah i think it would be which is why we don't see this hardly ever happens it's almost always that they can let five pounds four hours a day and that's all they can do and then you get all these cases almost all of them are ah right i mean how many cases come across your desk that are odd lot that are from public places know you might not even have a lot because you're right to come to the conclusion that someone's medical in permanent medically permanently and probably disable that would have to be so such severe restrictions that i would think you wouldn't even be able to perform your own activities as they would like if you couldn't do anything if you don't take in any other factors if you look at it from a medical standpoint which is all the operative philipson doctor islands are able to do is look at it medically you're right that i don't know what that could possibly be where you can make a medical determination that someone couldn't work in conclusion i would ask that the this court reversed the commission decision