palate in this case for your liquid transport core the issues have been fully briefed but i'd like to address two points first on the issue of penalties henley's are inappropriate in this case for several reasons number one the commission relied upon it missing witness and friends which is simply not supported by older law that's a legal issue number two the commission relied upon periods of and then secondly i would like to talk just briefly about the t t p and medical which i believe it's and it's not just think about us take your last point first about the penalties sure i mean where was the reliance intrusive the the course of proceedings up to that point we've laid out the medical treatment pretty much in great detail in our state the facts and you know i understand  thousand and eleven benefits were denied sorry on september sixteenth of two thousand and ten that's what the petition alleges that's what we were defending now what the commission did was the commission on page c one ten the first letter is dated october eighteenth of two thousand and ten ok so after september sixteenth two thousand and ten and then those letters they're all pretty much standard form letters it appears  then february of two thousand and eleven and finally march of two thousand and eleven so the court could certainly look at those letters but there were no demands prior to that so i think a petition very clearly insurance adjuster cindy callison appear at the hearing on the day of the call a couple weeks later ok now the commission this time in this decision that that was proper goes the commission issued the cases that are cited by the petitioners counsel are cases where a proper subpoena or whatever was issued but more importantly why would the adjuster have to come to a hearing when those periods of time counsel stipulated to it there was nothing raised at the hearing about eight missing witnesses prince there was no attempt to apply that test what happened was the fish or testified all these alleged notion that there could be these kinds of inferences i mean the penalties the penalties or the reason the reason the court awards or the commission awards penalties is because of these inferences that all of these treatments w issued and for whatever in the person didn't show up for the deposition maybe you could make that kind of an argument but here we're talking about an e mail and i'm not aware of any case law anything that would support a the appendix it very clearly relies upon the and what judge what the commission does is it it discredit the opinions of time the two doctors i faced started this missing witness of the commission goes on to say that this guy requested medical treatment time and time again yet that was  very clear in his opinion i mean we have to look at the context of what happened here you know this guy worked for two years or two but he was taken off by the physician's assistant kate was returned to work in january of two thousand took history and the radio frequency did hal for short period of time but the guy was working he continued to work during that period of time then there's a stipulation that he was off work until april eleventh because of an unrelated back injury ok so that the finding that pete the basis for the conclusion that dr saltz horse opinions and even dr people's opinions to be disregarded is based on eight finding presented for the first time her evidence presented for the first time trial that this guy was clearly requesting treatment for periods of time that are not even a eged in the petition for penalties so i think it all ties back to the  and let me just go to that question of the of the commission's decision so that i can respond more particularly to your your question you're talking questions causation to the lapse in treatment but apparently he did not realize the last was due to respond its refusal to authorize medical this that wasn't even the issue at that point the petitioner was working morning ma'am please the court i'm sorry my name is jason carroll way i represent mr wake one in the matter for the court today i do want to directly address on the penalties but i think the threshold issue that i want to talk about perhaps not first told in a way that it will determine the rest of the issues but certainly important is what's the standard of review today but we know it's meant of this way ok first was the thought in the course of your discussion i think i can  false so somewhere in your response with you with russ those specific ones i'll take those right now prior to my office representing this gentleman he sought treatment in two thousand and eight and two thousand and nine the commission found a long line of because it's not even the i'm a doctor doctor people's link up a super orbital fracture with permanent nerve damage and those headaches began in two thousand and nine all of a sudden as full but he's playing you so what's the no this does employer the the petitioner testified that it was it was before he saw dr moore which was done in december of two thousand and nine so it was way before dr peoples had anything to do with this case actually what did dr moore do what did the arbitrator say dr moore did and what did the commission a far darker more said you need more treatment go see an opthamologist that's in requests of the employer the first time he be allowed to go for additional treatment subsequent to moore's testimony moore's law you know nine after dr moore referred him to doctors dr marson which is on page one of the decision to be testified that somewhere in the record yes he testified that he tried to go back to the company doctor midwest however the headaches this whole time that's their doctor and then after that opinion by kind of tries to go and seek treatment with for the doctors who he gets through group all of those doctors lin and then they get a second time if you know what the second i only sense none of this stuff that happened before me is true this petitioner was that him am i a week after accident that's interact how interdiction to their first start so there's poorly credible evidence in this record if we're going to use manifest weight on the penalties would be a bit the real question is the two thousand and eleven opinion to refuse medical treatment in november of twenty a wait correct so now the question is what was the basis for the refusal and twenty on it there was no good reason for the refusal in two thousand and eight they had sent him to their bed clinic with linked it up and they then they refused the treatment and they refused to treat them because they thought it was an arm scratch so he sought treatment at a place where the company directed correct and if you read this decision there are all there all this treatment after peoples and between sellers and those four or five doctors or paymaster special board certified neurologist all said he needed treatment which they continued to refuse if this is a credibility contest if credibility is in the mix the proper standard for a view is against the manifest way of the evidence i don't need a single sentence of this missing witness rule to win this case if there already why because everybody believes the petitioner it's one of those cases my heart was in it it was credible slippery slope what happened in this case was the employer pushed treatment the treatment wasn't the way they wanted it to go they stuck their head in the sand and my guy finally got an attorney and then what happened is they tried to back date i need opinions language but what i mean by the statement was then they went back to the barrel to get a second opinion with cell horsemeat after the fact as opposed to back yes i apologize for the mistake you say  though think this is just a nice crash case either that there really doesn't matter for us this is a serious injury or is it he ended up having a super or will nerve injury he continues to get injections into his head every three months he was taking fifteen to twenty aspirin a day to try and get through this when the treatment was being refused these are serious injuries this is not they responded just can't justify missing with this rule just as i'm sure i understand what you're saying i would however like just to point out that that adjuster certainly wasn't somebody we had access to i can't call their adjuster when they're represented by says because our we know what our guy's going to testify to he's a testified to the fact that he asked for all this treatment we wanted to just or there we told him to bring the adjuster they said no then they supply the affidavit which the arbitrator didn't find to be credible and neither did the commission and the penalties were awarded this is a manifest with the evidence review from top to bottom all of the other elements are met causal connection t t d the pill these by the it's a cap of ten thousand dollars if you take our efficient we talked about earlier just as hard it was for heart talked about earlier look at the date september sixteenth two thousand and ten it blows the cap that way too so it doesn't matter if we go back to two thank you for this is not manifest weight we're talking about legal issues here the missing witness instruction we are talking about a legal issue when you look at the petition for penalties and it doesn't say anything about two thousand  paid for sensible to see a doctor people's that's paid for pays for all the visits with dr moore there's no question that all of the treatment off until he went to see the affidavit to say well these doctors opinions are probably not credible while your honor's in this case if you look at the records this guy continued to work during that entire period of time even the records code support was he said he's saying that he's had these headaches from day one they were five six seven eight out of ten yet his own statements to his all doctors yes but the petition for pelleas wasn't based on any of those periods the petition for penalties had nothing to do with those periods the petition for pelleas i was that they denied treatment after september of two thousand and sixte in the fall of two thousand and eleven or two thousand and ten and then we had a nice meet the doctor says well this is a relatively minor injury and it was there certainly a reasonable basis for the