court yes ok so you know that generally the marching orders that microphone you have been from you is not an amplifier it's simply records your words for posterity which incidentally are available as you may already know but i don't really intend to make you nervous with this but i am period's to see how you'll handle the diagnosis of approximately nineteen doctors in this case  transpired you don't have any eyewitnesses so that event other than the testimony of the claimant herself that it took plates are you have some collateral and  we're going to go along with what you're saying we have to figure out a way it seems to me to distinguish this case from marking the critical sentence one of the critical sentences in marconi is this page five thirty four in the reports here the record contains up against you know no evidence is not modified it doesn't say substantial evidence it doesn't say any evidence it doesn't say some evidence it simply says if the record contains evidence to support the agencies to see that decision should be for and that's  and they point further in and marconi to say he did ministry of agency decision is that gets the manifest weight only if the opposite conclusion and they use the phrase is clearly evident that's it that's our standard to review that we are now using you could argue and i think you are being very deep a lawyer would say that from your vantage point marconi lifted the bar somewhat with facts would you suggest i or we have to put it through in order for an opinion which would make it possible for us to distinguish this under the marconi scan your review i would submit primarily started with the incident itself that or at least in the baton incidents of started with there was a sense whether it was thirty seconds long whether it was two minutes ma is testimony going through the spectrum any force used with a twenty one twenty five percent level generally other is also something less than money i believe that there was no our actual contract and that testimony in itself is inconsistent with mr refer to this particular training session it refers to a general practice that doesn't expire preclude this particular section from not handing  it in seeking a reversal under a manifest way to be definite spirit but that's the point exactly is this a less nice you know the accident doesn't exist in the record there's no evidence to support that other than the doctor their doctor stating doctor says opinion is not credible it's worthless it's based upon incorrect evidence and there's nothing to substantiate his opinion i think we've pretty much got your point with respect to that can i shift the focus from there and that's to your argument that the  allegation that they may have withheld their vote for that reason but that's just surprise is there anything in the record that indicates why they did but there is nothing else in the record because they did  hearing but they had the opportunity to intimidate and question mr muskie during the hearing and the questions that were posed by them i feel were very prejudicial in their minds are made up quietly walking into that courtroom and that was the point by asking them to be recused opinion which would seem to indicate that they had very strong feelings about this particular applicant's the merits of her case and i would agree and that was well before going into it even for here it actually but also supported by that there were other allegations that and other lawsuits that were filed against them to support this and that's why the use of was made because they were named in the other lawsuits and their opinions were cited for the even stepped into that courtroom against her and that's what the case is supposed to protect b expression to what may very well be factors that may exist but to what extent should those factors be treated as it instead of the many think that they may exist that they do exist and that's always the problem that a reviewing court as weighed against the stability of the process the revenues involved in the process and the standards of review that are set up to supports that step in one step further might appoint a trial judge in this case found in your favor with respect to disability based primarily because i understand it on the failure of the board to even consider although it probably corrects the disability to a certain extent doesn't your race the gist of it least that's the impression you get that there was sort of the surgery itself was prima facia evidence of disability when in fact it would seem that if somebody testified that the cervical fusion was stating in other words that the fusion was a success can there be a but because of the triple fusion are creating limitations on physical movements that would disqualify somebody from doing certain for like duty because of surgical intervention they have been declared disabled for pension purposes they've just been declared to be eligible for light duty for a period of time and then their reexamined every six months or so and at some point a doctor after the surgery show that she was unable to return back to police ok that i mean i understand your position and so ok i think you need to sum up because we need to hear we have another case this morning and we need to hear from your phone i appreciate your time and at this after we've heard from that the hearing this problem free simply because the three who falls are properly authorized to do that can they take anybody off the street to sit with them they cannot your honor they cannot think that you think happen i don't know the answer to that in the brace issues how much you guys just don't vote on the issue and then they'll put the whole bias issue aside it's a bad argument for the pension board anyways because i see as your honor said those two simply being there on the panel and participating in it they would have affected the board but they would only the record that case was thrown out in federal court which according to mr abbott was a mistake but what actually happened it was subtle it was sad case will says a lot different than big thrown out correct ok and then he continues case you guys can know you're honest and certainly remember a case such as within your power under the law to do that but i think that the the issue is before you get to that because it's a better argument anyways to say that because they didn't vote it kind of renders the vice issue moot but what has to happen is that the plaintiff past present more than just the possibility of prejudice and that's all the plaintiffs did in this case and the plaintiff has to do more than they have half actually show they have to put forth evidence to prove that these t my name yeah jeff good luck your honor mr goodloe how's your wife and kids i don't know kids the same way at the supermarket the other day she looked well and i talked to a couple of your children are really coming along the appearance the allegation is not enough there has to be something more and that's where we go back to the danco vs harvey case where if if if the plaintiff is simply come forward in that case and said the chief in this case is biased against me which is exactly what the plaintiff in this case they said there is a quorum left unanimous you know you say there's no doubt on the other nets opposing you and i acknowledge i's that to a jury a fact hearing jury where jurors who are permitted you know it less questions and some judges permit them to ask questions through the archives and you have two jurors sitting on the in the jury box asking all kinds of jurors are subsequently found to be disqualified either because of bias or because they live there and there are on their jury cards or what have you that disqualified their then replaced after you think that the parties the loser in that case is stuck and has to basically sit in silence and accept the verdict that i don't know the bottom line answer to that but i i would submit that it would certainly make a difference in knowing what the status quo if attention was all about it may make it may which would seem to ask for more clarification in order to determine whether there were your participation before the decisional phase of their  of their of their hearing to determine whether that creates a problem manifest weight of the evidence standard and as your honor said in order to repurchase all reasonable persons acting within the limits prescribed by law and drawing all inferences in favor of the pension board would have to conclude that the benchwork made a mistake and that the optical illusion is fairly eviden opinions since it's based on a record in inaccurate record palm which he apparently relied i disagree with that the he relied on a date that portion of the record was influential in his decision only influential in his decision just because they should not as to whether she was to say we're not because he clearly found that that any instant that may have happened october plaintiff which we are not to believe then those opinions are inherently flawed that's the problem in this case and there's significant amount of evidence in this case to show that the plaintiffs was not telling the truth and that the objective f six after that she works well in restricted police duty for three years for three years she goes to a number of doctors and every one of these doctors invariably invariably comes back and says that her but that your jackal finds that we have  i and really nothing objective leigh wrong with her you subjectively say you're in pain so i'm going to go ahead and perform this surgery that's the problem in this case but that it's two paces out of the tube at that point he performs the surgery and whether she's a liar or not it make a hill of beans difference in this case if every doctor said you know what if you have the three just so cool fusion your disabled and that's it but that's not what they say dr phillips her own surgeon and dr milgram said in theory hypothetically if you have missed this fusion and it goes well you can return to work as a police officer which completely throws the ball back over to the plaintiffs court to say does the pension or should you believe the subjective complaints that she can't do the job unless she has says significant improvement two thousand no nor logic symptoms two thousand one hundred just fusion is absolutely solid so then we come to these half c t s well these have seized the functional capacity evaluations find that they appear to be valid and that she entitle to a psychiatric disability dr johan of boasting tutor all said that she's not mentally disabled even hope her own doctor dr johnson wrote july nineteenth two thousand and two that she could return to work and then change her opinion depending on what the exercise a fire department would be caught it actually was called on that day for a person who injured his finger it wasn't called for the plaintiff in this case which completely contradicts her searching and even if your honour's recourse and find that she isn't tied to a physical disability it  that she was actually in the car accident she just simply says i didn't experience neck pain as opposed to the document that says it was there it's a conflict of the evidence it's the pension pork who has to testify if it's in their products the way that evidence so we think there's evidence to support first with the progress of first issue i would say is where there's smoke there's fire and we take that in conjunction with that issue with the other issues that we have because the actual substance of the case regarding the allegations again i would submit that the allegations need is interviewing the claimant determination as to whether she's more lingering may not be accurate but it's a legitimate expert opinion because that's what the trans fat factor is a legitimate basis upon which to make a determination as to credibility there could be of course better consciously lying and that's probably better ascertain through an interview then they do through objective determination although obviously the best of all possible worlds would have b what you can't simply say it's an allegation it's an opinion that opinion by dr yada and his basis for it doesn't exist though he says that she contradicted if he wasn't able to point out one iota of evidence of what type what she what he was referring to was in contradiction her testimony about what happened was was confirmed by all the medical records so insane it is opinion that she's a leader is not supported by he can say doesn't mean it's true there's no support for  basis for his opinion that he's a leader contradictions there's no basis for the opinion that people should have to work again that goes back to my whole theory about the mathis what if he is saying it doesn't make it true unless your support for unless you're an expert whose expertise