we're here to argue the collection of cases neutral rest we understand the burden of manifest that's i will limit it if he's in the initial argument with the times constraints determined on the initial this issue in the first paragraph of a forty four year old diesel mechanic quote as he was positioning the torque rod he twisted and felt a pop in his back and immediately felt pain in his lower back that is what may determine the commission affirmed and what we're asking this court to overturn that's not the evidence that's not what this petitioner wrote down it's not in his hand written notice of what occurred and we think it's a simple neutral risk if you go to page forty on in the transcript that's the process of them a nation of these hundred sleep if you know the facts but i don't want it so important to emphasize a chronology he worked at all day doing a shift he woke up the next morning with severe back pain he had already had an appointment scheduled with his private care physician he went to the care physician for other reasons but he said he added on you know i'm having back pain and he told the care physician about the back pain he is experiencing on the previous day in the care physician then after that something you can infer and they can logically verts find the sale your article back and report it he does go back and report it and he reports it and it's in our brief in the  he has street different scenarios of accident theories one is handwritten of some discomfort one he was on a creeper board underneath when he said he felt a pop and a third scenario when he was not laying down but he was absolutely and i and if you'll notice this is why my employer gives them the benefit of the doubt it actually did offer those benefits initially the treatment they thought it was a back problem minor back spasm and to this day i'll end up my later saying you know we still don't know what it is but to your question you're right that i thought exactly if i was a judge i'd say come on some of these people are just workers and don't are highly educated etc so i'm giving him the benefit of the doubt and the point is it we're setting the precedent for when is something a work accident arising out of the course plan and when is i think the evidence in this record  heard i had a sudden onset of pain i had severe onset i heard i was reading all the other scenarios we encounter when we read cases and read histories and medical reports we don't have a popping in his case we don't have an onset then so staying on this point that i think it's a big it's a big distinction in his words that he didn't have onset of severe pain that really began the next morning when he couldn't get out of bed if that be the neutral risk is he standing up from a neutral position doing a normal activity of size under a vehicle working out of people was about standing up his statement doesn't support under the creeper theory it's wrong that's why we're here that one sentence is wrong that's not an injury he never sustained a work related injury he where he sustained was so the onset of some discomfort at work that's that's his testimony that's unrefuted but that's not an interpret there but i will say that like cross examination refuted that that line of accident theory he said he didn't have a pop in his cross and also not in his written statement but he said my reading of his statement in cross examination was true and accurate and he went to the doctor the next day he didn't mention a pop or sudden onset of pain to his own physician he didn't mention that pop or sudden onset of pain that this base that this review standard of review theory it's up to this court that's why we're here mistakes happen and if you review this transcript in toto and you believe that this is wholly against the manifest weight of the evidence that nobody would believe that he suffered of that he would suffer a pop or that he suffered a traumatic injury to his back rather than in and city is onset from standing up which again i emphasize was some discomfort not  and i i know how narrow this is and i know how difficult it is for us to overcome this part let me change to the alternative in that this gentleman then went back to work after the initial round of treats and was returned to release return to work on february twentieth by his selected treating physician dr barnett told duties no restrictions and then our alternative argument is we're being asked to pay future medical and t t d based on  subsequent occurrence with no reporting of new accident injury or no reporting of a new aggravating event that occurred on or about some time around march the ninth and the facts there irrefutable say this gentleman knew he was under review because of his poor work performance which could have endangered the general public with his mechanic negligence they were going to bring him in he knew it they asked to meet with him they were going to meet with him they did meet with him and after the meeting they gave him a reprimand and he sat in the cafeteria and the witness testified to this and he agreed he's upset so he goes out and makes a phone call at about five o'clock to request  slip be brought back into the employer by six o'clock which it was received and placed on the desk without an examination without any testimony it wasn't a doctor that he spoke to ace an identified staff member we don't know her dentures or anything which he just sent me this off works that they do so it starts the off work slip and it starts the the benefit so are you saying are you telling us you're representing  hearing and sort of the the petitioner and he said that he encountered then the petitioner in the break area then the petitioner said he was going to make a phone call he goes out mexico phone call comes back determinations regarding credibility and in that regard the commission found that my client's testimony was credible in fact in the e u and the decision of the commission think he had to extend his arms up he had in fact told the doctors said he had to be in an awkward position he testified and told doctors treating doctors that as he was holding up they're trying to get it  he put his arms down he waited ten minutes till he evolved a little bit better then he finished our job and then did he go home then you know he went and he did the rest he did the the work on the other trucks that he was required to do  that day which included bending at the waist into the body of the engine on the truck and replacing hoses and whatnot the incident report that the opposing counsel seemed so  tied up with that that this is this is impeachment of my client my client was referencing the the last job that he had that day working on truck thirty zero two i think it was and he said that after bending over and  changing hoses on that truck he stood up and felt just discomfort in his back which got worse over the evening such that when he went to see his family doctor the next day he mentioned that he had hurt his says but if that were true i would i would have i would have put that in my my statement of facts i would have i would have tried to explain that away but let's look at the course of treatment of my client this wasn't just some  comfort that he had in his back after working on trucks that day which was something he did every day at work he went to say he was referred by his employer after filling out an incident report the very next day  their company docket for initial treat that company doctor ordered physical therapy which he went through and after six weeks he still wasn't any better the physical therapist says he's not getting any better so their company doctor orders an m patients which mr summers was it's his practice if they have some improvement with conservative treatment physical therapy injections whatnot he lets them do a course of unrestricted work which is why he let my client go back to his job fall time with no restrictions that lasted a period of i want to say three weeks until march ninth two thousand and twelve called and we have evidence in the in the record that he actually called his doctor's office the morning before he reported for work and said i think he makes you know a big deal of it i wanted to pin that down because he implies that the claimant did that because he would be valued to be disciplined however the claimant testified he called the next office that nine fifty am before his shift commenced to noon the commission found  know as i recall that the the record indicates that dr coronets office contacted him that evening and said hey we're taking you off or we're going to fax and off work slip to your employer and in her and we decided that we were going to put him on some of a course of steroids to settle the back down some and then i was going to see him on the twenty sixth of march so dr acknowledged that this he had a discussion with a physician's assistant who spoke with mr somers that morning and the decision was made that he should be off work until he could be reevaluated and at the time he was supervisor who had the the disciplinary meeting with my client over forgetting to put the cart or pins in on a job or earlier that we admitted that it was just a verbal type of reprimand admitted that this mr summers was other than this one incident a pretty much perfect employee he did his job he did his job well and he had no objections with him so i think called dr going at softness at six seven o'clock at night to try to get off work so it it's just not supported by any of the evidence i don't know how that that can be how that could be a finding  discussion with his supervisor about it i think even read it actually with that with the union but be that as it may this was not a situation where my client was going to get fired and so he  the i think he explained that the mechanical process of using your back in doing your job puts loads on the b already herniated disc and makes it aggravates it makes think that's what what what all surgeons should should strive for but he says he found he testified that he finds it in his practice that oftentimes that conservative approach just doesn't work and they do have to go back in and  do surgery and dr garner that testified that he believed another m r i should be done which would be more focused on the area at hand which would help him to decide whether a and what they cite in support of their finding on arising out of an causation is absolutely supported by the evidence and so we are asking you to affirm the commission's decision very quickly it's age forty five when i cross examine him on his statement and i said ok it's fair to state that the statement you wrote out this day the event doesn't mention anything about feeling a pop in your back while you're on a creeper board or anything like that no and that's my argument the alternative in the proof and very briefly here what happened is he did make both balls dr lang says doctors don't do this they don't give people off course of that examining room and they don't prescribe narcotics that's not something we do in the profession and i don't have a thing to refute it is i'm not saying it didn't occur the calls did occur the facts came in and we're saying that that's not proper protocol interesting lee they waited three weeks to get an appointment and on the saturday before that monday appointment is when we have the surveillance of him lifting loading unloading a kenmore washing machine in and out of a pickup truck and him testifying at trial which we were unaware of because we're not allowed discovery depositions that throughout this entire process he is caring and feeding and watering horses for his mom that's not inhibiting it's a bill or it was tested but we were brought up to put in the correct and finally your arson the diagnostics that what i like to emphasize in these cases is where the physicians agree both physicians agree that the diagnostic studies tests were of poor quality they can't use them so right now are on speculation as to the