what we're asking the court to do today is to determine what burden should be placed on a petition or by section eight point one b of the work compact and this is what we in the practice referred to frequently as the a m a rating report difference between that case and our case is here the claimant did not offer a report in fact there is no report so the key to the issue that we have before the court today is one of first impression we're asking this court to do one of two statute does that require the claimant to submit a written positions in court your honor i would say i've read that in that decision and i think it's addictive i don't think that issue was squarely before the court the question was there was a report presented by the responded in that case actually i think the report may have been obtained by the respondent presented by the petitioner but nevertheless the issue came up it was discussed at oral argument on several different occasions but the real question as i read that decision was whether or not a zero rating report mandated  weigh the factors right that's correct that's the second leg of our that is correct and with respect to the commanded mandatory nature of the report what we're asking here is for the court to look at the wording of a one b and the language in several places when we read that in conjunction with the petition or the burden to establish a case we need that we believe that that is a mandatory document that they are meant to report that they must change and submit and we say that for this reason which is the and every port then at the end of that paragraph it says in determining the level of disability the relevance and weight of any factors used in addition to the level of impairment as reported by the physician must be explained in a written or this mantra must be must means must yes would have to look at the case meaning the cases right now you are kind of if you look at the commission cases and i know we don't do that typically but just to give you some background the cases at the commission level are all across the board right now from the standpoint of many cases the response and  statement that the commission made in two thousand and eleven right after the amendments were passed i think in this case i think the fairest thing would be to do if the court decides that this is in fact a mandatory requirement on behalf of the petitioners part of the case in chief is to simply remand it  commissioners have to follow the report but it has no basis it's germination upon the factor factors which include the report card and then it turns around and says in determining the level of disability the relevance and weight of any factor to be used in addition to the level of impairment as reported by the physician must be explained by the written report so we know there the level of disability must include in its determination the level of impairment reported by the physician a report i find obese is suggested he has to be submitted eleven you know i understand this court is like harsh results and you could find that a record is required that a report is required to be submitted by the petitioner and re man in this case with an opportunity for them to do so based on the status of what the commission saying and twenty a lot in two thousand and twelve when this case came about i don't think that's unfair in this case going forward if a report isn't submitted then yes there oh i think that's consistent i'm just saying in this case i know that you don't like har results particularly in a case when you've got a twenty eleven memo from the commission that says well we don't think that this report's necessary while it's somebody who relies upon that to their detriment all we're saying in this case is give them a chance to put in a report but when we move forward the report has to be part of their burden otherwise we're going to be required recent evidence to establish permanency and i think that's a problem that the employers have is it is this is the model of clarity no i think you've probably figured out it's not the model of clarity but when we read it as a of the for the fact of evidence of disability corroborated by the medical treating records and he said well the reason we have that included in this provision is in case an employer is going to offer a report to rebut the a m a report the petitioner so that this is how do we discuss these factors when the commission does assess the primacy and the problem that i had with this case and the problem that i had with the continental case is that the factor analysis is basically  you look at the factor analysis of that in this case and we see occupation of the injured employee he says well he was a lineman and he talks about the commission talks about how the accident happened that doesn't in any way explain how you get to of pregnancy rate the cycle when the age of the employee at the time of the injury he was forty two i guess my response to that is just to be kind of gruff and say so why explain to us why being forty two years old at the time of the accident causes a level of permanency or causes a diminishing level of permanency and the problem with a report like this that doesn't give us a basis is how do i come argue that to you how do i walk into this quarter without any defined explanation of what the factors are and why they are important and have any meaningful opportunity to review those save the commission goofed up here because when they looked at the age they concluded x y z they just unsafe forty two and they did the same thing with the rest of the factors in this case future  capacity that favors me he's now working as a service may makes more how does that warrant any disability i don't understand that evidence of disability corroborated by the medical that mostly says well the petitioner says he's able to it doesn't affect his ability to current do is print out again how does that affect permanency so what we're asking is aside from the factor of the report and who's burden it is when a report is given him a currency is determined to have the commission spell out and talk about why they're adopting the report or why they're moving away from the report or why they're looking at different factors in the analysis and saying this is important justified honesty or this is not important and doesn't justify from because otherwise how are any of us ever going to be able to walk  and review if all you're looking at is these forty two doesn't tell us anything so we need some guidance on that and they need some guidance and they need to be able to tell us what the grounds are so that we have a basis to refute that and come up an argument th the way i interpreted the continental tire tire case is that if an impairment read a report is submitted it must be considered can be rejected and not followed at all but it must be considered if submitted determining the level of the claimants permanent partial disability consider or or a report that complies with the the section what i'm saying is that it's not necessarily saying that one has to be submitted his if one w submitted by that point in there was a report therefore it had to be considered i interpreted the the case as it not being mandatory obviously this court ruled on it so  says determination following factors in number one is the reply yes and then later on in section b it talks about the fact that no single numerated factor shall be the sole determinant of disability we understand that so your honor they can deviate from what the report sets my argument is that if the impairment reading the report is found to be mandatory it would have the effect white through each of the factors and being critical of the commission's evaluation and one of the things here is that there was only three percent a person that was awar and what i thought was important here is the spokesman did have a job change and granted he did not have a diminishing in earnings because i believe he was getting the same pay afterwards but if we're looking into the future of this gentleman i believe that it is reasonable if he cannot do physical work it's going to suck for future loss in future earning capacity and whatever the that i think it's a reasonable inference and i believe when you take into consideration also the change in the symptoms there was some indication that there was a wors you question i don't believe there are ok thank you thank you pencil thank elsewhere you may have it we agree that a three percent a work permit to see or hear about ten thousand six hundred dollars is not a great amount of money but the questions and i think those are huge issues that will affect a number of cases so this case for us to utilize to bring that before you on the issue of the burden of proof again i i point to the general law that says it's between his burden to establish their case and case because what happens if we go to the courts you want us to say i think it's a burden of production falls on the plaintiff because burden of proof and they have yes on them exactly ok exactly and i think the the problem is if we say that every port is required there is because the evidence can come from either side of the aisle if you make the mistake and introduced it report you satisfied i follow his bird i follow you thank you thank you