construction of the workers compensation act and specifically section sixteen of that act the appellant susan way specifically is asking this court to discretion the abuse of discretion no sir you know sort of the in our brief we touch that as issue number two but the primary issue is whether or not the arbitrator even had the discretion not to rule doing it's one of those cases where you have to be extremely sensitive to what the act provides and that's where we're coming from if it were just simply a case of discretion i think my opponent as already indicated that the standard of review would be an abuse of discretion we just agree so what is the standard of review in your mind the standard to produce do you know bill in the question of what does the act provide section sixteen that is where this so called discretion starts if you didn't have section sixteen i dare say you probably wouldn't have discretion of all affection sixteen and i know the panelists from there with that specifically says that the commission the post office by changing my address apparently i had a duty and a responsibility to go to the clerk of the workers compensation division and to say to them my office is changed here is where i am from receive my mail i didn't do that that was put in a motion to a petition to reinstate an arbitrator or bochy did grant that and i think that's important to know that he did exercise discretion in that case which came from again section sixteen this idea of discretion i can do anything i want to do when i want to do it and how i want to do it is enough and not through the act there is a least saying that it automatically gets reinstated upon your august twenty eighth all everything was taken but the arbitrator refused he climbed to rule we're going round in circles who determines good cause under your standard someone has to determine the merits of the motion which you can see then at least that is done in accordance with the act you're in you're saying it was not done in accordance with the act and your opponent i'm sure is going to see it was done in accordance with i don't think my opponent will go that far he was always a green to you or your position the arbitrator to exercise good cause it wasn't done in this case the arbitrator simply of the right of the issue by continuing the case i believe the next day it was september twelfth there's no record of those proceedings in the record here we don't even know what happened then the next time it was up of october twenty eighth and on that taste on that day i didn't even know that there was a hearing scheduled i didn't hear if you keep track of no i was not even aware of that are over twenty they come and gone i was trying to get in touch with my client regarding a quote settlement that the arbitrator had said that we should be pursuing he his comments on the record were i want this case decided by the end of the year one way or the other somewhat or trial the fact of the matter is what he said in washington is not the key to the case because he had no discretion to do that none whatsoever section sixteen says you must decide a petition to reinstate you can't just simply continue it and that's our point of pride is that he a virgin the decision there is a lot of argument as to whether or not we were going to do it or not and that and result was continue no ruling continue no ruling and i wasn't there on october twenty eighth and he took the liberty at that time contrary to the stature simply to say well you're out of cour to read it in the context of good cause good cause shown by a clue shown by the petitioner and i showed good cause the record is replete with what happened on september thirteenth there's no there's no mistake there is really no dispute about the issues or even the facts well sir it was originally continued so you could get medical testimony and years went by and you never did get the medical to you under so much where was your good cops the good cause was in the fact that the ira traitor this was a what's called a nineteen b case the arbitrator had three months in which to bring this case by agreement with responded and with the arbitrator the case was continued until october twenty it was not required at that time and no one of the issues i suppose you could say is well isn't it your responsibility to do it yes and all that is the got dismissed they hit a second time and then with all this was about reinstatement in two thousand right no sir i'm with all due respect i think you're mixing they first question and the second petition together the first petition is not even really before the score it was granted there was no argument about that i was very pleased that the arbitrator simply said i understand i never receive your explanation as to why you didn't get me all the cases reinstated now what responded points out and what the arbitrator does not take responsibility for and which i have to take responsibility because everybody says my responsibility they say i'm in the driver's seat i'm the one who's supposed to enforce they are i'm the one who's supposed to bring the case hearing that's not true section one thousand b c is very specific and very clear you have three months that case started on september seventeenth he had three months after that to bring that case of conclusion and he my opponent and i agreed october twentieth was the day on that day the medical doctor dr cole the treating physician was supposed to come and testify he was not ready to do that because the respondent kept asking for extraneous medical evidence and i was doing my best to get it and i don't think i showed up but i was doing my best to get that and newer version of these continuances work i'm sorry were you should be closed if there's no action and nothing's happened whatever it's just right yeah and i don't i think that's true and so is the reinstatement of provisions after those ninety did well the reinstatement provision here is confusing this case this is a very simple case when we look at the authority of this court and the only supreme court dealing with that this is simply a matter of whether or not they had the commission the proper to deny to petition to reinstate that's all that we have here anything on this case the ninety days is gone good bye we're ok still be over i find it hard when i when i listen to this argument about the ninety days and is there a time limit there after years or decades before you can reinstate  the believe was given to take that deposition it was four years when we were back in two thousand and eight hour you in about the second motion to reinstate and it still had not been taken and i'd like to make up what i think you got to the point i was deposition case was continued to october twentieth i think he said what happened and i called were twenty was anybody there i don't think the record reflects what happened on that i went back to the record i couldn't find any indication of what happened and why the case didn't go obviously but i don't know i can't say that i'd have to guess i don't know that i mean we didn't do it was continued to get the doctor's testimony and to this day we never got the doctor's testimony is that right that's true so that's going to cover twenty it couldn't proceed if that's true that's true i have one comment that i'd like to make and i want to make sure i clarify something that from from the briefs one of the arguments that i sensed in this brief was an argument relating to abuse of discretion i think the court's familiar with situations where a trier of fact or commission this instance has a discretionary decision one of the ways you can reverse that is to say look he didn't exercise discretion in this instance or he focused on one factor there's ways to get around the obesity scratch and i think one thing i'd like to leave the court with here i think that when the arbitrator took this case in august of zero eight under advisement for august but counsel back in september had additional discussions and came back again with the intent to get to finally rule on that motion and possibly move the case for in my time is very quick i have to say he had ninety days forget everything else he had ninety days and when that didn't happen he had a duty to send out a notice that says i'm finished with this case here are my findings here are my conclusions if you don't like go to the commission with all due respect they are a traitor did not follow the statute and i think again that's why we had amendments to the workers compensation that hopefully we're going to have arbitrators now who will foll ago no sir sorry he's going to send out a notice that says this isn't one thousand beach case you've gone past the twenty if i didn't call it but i'm going to call it now either come in here with that medical testimony or else and keep in mind one other thing that this