your client testified under oath the time of trial that he was under doctor's care with the work restriction of ten pounds they are now writing in their motion that when they got a certified record from dr van they're saying it was clear it was released to return to work under a ten pound restriction by dr baden when he was seen by dr van on march with weight and he was not asked anything nor did he testify anything about any and i didn't when i said in the records it was not even in existence so it's not in evidence in any event it doesn't count contradict what happened earlier in the year that in essence what you're saying yes that's correct you're saying that we looked through this record d records and as of the date of the hearing would support the testimony of your client well i'm saying that the records that i put into evidence which i subpoenaed take the my client he said that he was placed under a ten pound restriction by dr van when he saw him on march fifth two thousand and eight and he also said that dr van recommended that he had physical i seek or receive further physical therapy which they could provide there were you able to receive either the physical therapy or the injection i had made a follow up appointment at that time were you able to get the physical  injection no was it because workers cut refused to authorize payment answer i was informed that any further treatment was not authorized by workers that dr van also gave you a ten pound lifting restriction so yes he did for july i would respectfully disagree if you'll notice in the record he was examined on june tenth two thousand and eight by the respondents own doctor dr lieber who said he was under a ten you should be under a army you can perform any other work because of the restriction that's right well then we have juneau woman we have his treat her right so he can return back to work for duty and case and february fourth two thousand and eleven nothing i knew anything about that the petitioner was able to go back to work on february twenty seventh two thousand and eight with a ten lb lifting restriction when the patient took that to his job they told him they don't have anything for you within that restriction a month and a half later he got a letter from his employer telling him he was terminated because he couldn't that it affected his ability to perform the essential duties of a stress stress trust the respondent also tried to put in they did put in their briefs before the commission statements that were not in evidence and in fact they did the same in their brief before this court stating two things were not correct one  things they stated was that there was a release a return to work with no restrictions and the other thing that they stated was that there was a release to return to work without restrictions as it related to an inferior dislocation of his right shoulder when he was in the marine corps after six months he was able to return to work or to return to duty for liberty in the marine corps who remained in the marine corps for a while was discharged had no restrictions then he joined the army was in the army until ninety ninety five when he was discharged from the armed forces at that point they found no comparable whatsoever he had no problems no restrictions for the next ten years he performed heavy work laboring in warehouses doing work at a auto parts store where he had to lift all kinds of heavy objects and then he had worked for over two years with because they said you're done you've got a ten pound restriction and you're not allowed to come back to work and then they fired him because of that and so i don't think there was any end to do it and i think the employer  you know they got this ex post facto opinion from dr lieber to try to justify their conduct which is you know normally what they do is they get the opinion first and then they cut the man off they say they didn't do that in th to pay benefits on february twenty seventh well not only does it not have any relevance but you have a man in the position of not having a job based on the employer's position that it has more work within his restrictions and not only that the man has been performing has been performing the job search and doing his very best which you testified in quite some detail about ever since he had been terminated or actually even tenth two thousand and eight all agreed that there was a ok thank you me i appreciate the fact with my motion that i was not trying to add the records in and into the records the records for van orthopedics and in response to your question as to the subpoena they are in fact the again this is not the part of the record but the reason i was doing that is that counsel i had requested some ongoing benefits and i needed to know what the petitioners condition was at this juncture now you know to me when we hear that again counsel had request i feel that given those records as a matter of law there's no on a good base bases to argue for penalties after june eleventh of two thousand and eight whether any penalties awarded for any time period after you know living in crack they would awarded i've been through the date of all relative to fraud and where those type of issues need to be addressed i was addressing that i felt that given those records that there was no longer a good faith basis on which to make the argument after june eleven if you're relying on that as a basis to deny benefits if i learned colleague has to stop and pointed out the letter was received in june two thousand and eight and yet the employer terminated benefits in february the letter three months later rather than be the basis for justifying the terminations of benefits months earlier i don't believe that that was the basis of terminating the benefits to begin with i do believe that and that's not my argument before this court notice that your reverse letter that has nothing to do with this case the no no leaders leaders letter is very important but it's in conjunction with the treatment received by the account with of two thousand and eight as it's memorialized in the records that powell felt he he had been released full duty which is what the recordset he then provided he does provide a history to dr ben regarding his injury at work with  there you think is a good faith basis for all the other criteria for terminating benefit certainly in that time and certainly according to the parent when he went and saw the doctor on march fifth of two thousand and eight he told the doctor at that time he where the question is one with the knowledge of experts only and not within the common knowledge of lay persons expert testimony is necessary to show that the claimant works activity caused the condition complained of cases involving aggravation of a preexisting objective objective lee reasonable at the time did we have a good faith basis on which to dispute liability back in march of two thousand and eight and i am saying given the imbued with ambiguous records you can usually problem here of what's going on it's almost like with the movie cases back to the future you're referring to something that happened to mark from dan's records you're referring to a letter you to justify terminating benefits in february not you don't see a problem and that's rising i'm not using that letter to justify turning bad assets in february i'm saying it is that pans purdon to show that there is a work related injury that his degenerative condition was somehow aggravated or accelerated and the respondent was certainly reasonable in contesting my ability given the fact there was no clear opinion from dr van dr v and does make recommendations as to treatment and to diagnoses but nowhere  does he say this is because of his work related injury he doesn't say this is this work related injury aggravated or excel rated the degenerative condition all he says is he memorializes a potential work his work injury where the petitioner then says he's been discharged from physical therapy has been released full duty apparently in talks about a degenerative condition that he had and dr b m in room or analyzes ongoing degenerative problems with the right shoulder and i'm saying how would they respond it it would say it's certainly reasonable for the respondent then to contest liability because there is no clear opinion from the doctor indicating that that that his ongoing treatment was due to the work and injury it could have just as well been due to his degenerative preexisting condition somehow a quest to actually justify that and that's not what i'm saying i'm saying looking at all the circumstances at the time the respondent contested it had a good faith basis on which to contest liability and she doing something similar with discussion occurred after you stop t t d correct he went to the doctor to document on march fifth and i was seventh just when you write the twenty seventh is right and also during the because i do believe that's contained in the projected medical records that were that was part of the record so that's why i haven't addressed it and i've been trying to stay within the record balance or to the positions exhibit on that please do that i believe you do have to roll record but i believe that the record supports that the employer had a good faith basis on which to dispute payment of the of the benefits of the ambiguity as well as the lack of tha from dr van as to whether or not the problems preexisting degenerative condition was aggravated or accelerated by his work injury and i think it's really the lack of it because it's not it's not the employer's burden act that makes us proactively have to pay t v benefits and thereafter justify why we haven't i mean i don't believe that that was what the purpose of the penalties provision was and i so i don't think that that's what has been held by the supreme court i think that well i think again he's he's hearing the same argument that that i am is that we were contesting liability from the beginning and that it was certainly up to the commission to say hey we don't agree with dr lieberson position as to causation that the degenerative condition was not aggravated are accelerating the commission was free to ignore that but the respondent wasn't inappropriate in asking to have that opinion and have that attorney for matrimony benefits at such time as you can make a benefits was justified cook county versus industrial commission to avoid the imposition of penalties and fees an employer must show the facts that it that the facts in its position would have led a reasonable person to believe that  is not entitled to prevail over the air as though flawed belief it's not enough to escape liability also in response to your honor's questions ruth white has never been the arbitrator ind benefits fear client though that would just by getting medical records i mean i had counsel to say there was something not involved in this appeal going on  well i mean you know the question at least in my mind is did they just decide to serve a subpoena to get medical records you know weeks or the cases that are oral argument or was there some other legitimate reason and then they just discovered this in medical records i understood counsel here to say she did having this a p d didn't have anything to do with what was going on in this court but then when she saw the records she made a separate determination to file this motion and that she said it was something about ongoing benefits and you know i probably made some kind of comment about that my client would be entitled to you know wage laws benefits because he's only working part time on the weekends as a security guard and making much money and that he hadn't been able to get any additional treatment because he they had denied treatment before something along those  february seventeenth and i do believe and i don't know this is necessarily something everybody agrees with but i do believe that whenever a subpoena is used by the respondent they're supposed to send a copy to the petitioner because if they don't and it's one of the where they want any and all records then it would be able to the petitioner and be able to notify the medical provider that you know that the patient has an objection to that and there are a number of firms that do utilize