commission find in favor of the petitioner my client i mean issue of penalties to have the circuit court judge reversed it based upon the finding as a judge indicated that it was a question of law and not fact however as you well know the the question of whether or not the commission has the ability to award penalties is a question of fact i divide my i came in in three parts  law as i've stated this week second is fact and the third is reality number one the fact is that the employer did have written notice as of january ninth two thousand and seven that the petition would be meeting this nerve stimulator with him within three months time at the beginning of two thousand and seven the fact is that the adjuster acknowledged he knew as early as may of zero seven that the better we replace it was needed still no authority at the back it was at the petition was filed on august second two thousand and seven asking for penalties and then thereafter the authority to it's given as of august fifteenth and the fact is that they paid for the inpatient service even though  excuse my idea just here was that she needed to know whether or not it was going to be inpatient or outpatient there was no evidence whatsoever that that was the issue the fact is that she had previously did like the the respondent had previously how do you respond to that argument i think did did you get with this issue in residential development where you where you in order to get to responded to do anything you almost that's a reality you almost have to force them to do what they're supposed to do the authorization i think t to for abuse but still we're looking at this as a matter of state for interpretation is there an issue on the other you know on that matter whether it was really incurred within the meaning of the yes well how can a petition who's waiting for better we place meant encourage this without the authorization that's a reality that we're dealing with and i think the commission understood that and yes to this the petitioners cannot get the treatment they were the doctors won't see them unless they get t penalties for now after basically this is a reality we're dealing with how else as you say unless she was stuck punishing respondants to get the treatment necessary at that they're not even questioning the need they just if she just plainly said at the very beginning the arbitrator made a finding that the petitioner had been a spinal stored spinal cord stimulator and had to have the badly replaced at one point and so that was the original arbitrators award a finding that the the stimulated was necessary due to the injury and there was never been a dispute as to the necessity of the spinal cord stimulator if that's your question cord stimulator i don't think that the arbitrator needs to put that in the order if you look at the record which shows that the stimulative would need to be replaced every every five years of the battery life and i think if you look at the whole transcript which wasn't part of this record did indicate that she would be needing this every five years that's why the case was tried and kept chemical weapon my question is a simple question this was tried she  pay for ok in this particular case there was no refusal to pay it you need point in time yes there was when it was in may and june july of two i guess i don't understand here your decision invested densham development if that's the case and and that's my comment thank you will not paid not payment for zation and that in fact there was no refusal to authorize in this case either there was a delay because the adjuster in his testimony indicates the adjuster was trying to get information out of dr luba now for months and finally in on june fifteenth a letter was written that said you know what we're going to need we're requesting authorization for the surgery the december all six  respondent has to authors especially in light of the case law that starts with plantation manufacturing plantation manufacturing it is a case where the commission ordered a respondent to authorize surgery and this court said you can't do that that it is not something you can do now later in bennett were a lot of the reason for that was that it was like this when oppos kind of out the window well i guess yes for you to decide i don't think so because all the medical fees schedule does a set a maximum so if the court is going to say the medical field schedule the stablish is all medical treatment you can't go higher you can't go lower then i would appreciate that argument i don't i don't think that's the intent of section eight to eight point two of the act it sets the maximum ok well you  reality what effort if it did the petitioner in this case take to get her medical treatment whether she wanted it authorized or paid for don't even suggest a refusal to authorize or there may have been a delay in authorization but as soon as in and i contest that because as soon as the adjuster had the information she needed to make a determination she often writes that and that was august fifteenth of zero seven on the same date when she got information from dr luban out that sad this is going to be an outpatient procedure and then she extrapolated the cost from before which i think was actually something that she didn't need to do she could have asked for another estimate and by the way speaking of estimates i don't know how the commission you know i again as a matter of law i don't think i think the circuit court was correct here but what did they base their petition for penalties on there was no evidence of the bill coun petition on august of zero seven didn't have the hearing until march of zero nine and in that period of time there's no evidence of what the bill is she has not met her burden of proof even if you did even if you find that there was request that this court reversed the commission's decision and uphold the search or also how do you we residential carpentry your opponent is saving it for the proposition that in that case the commission was found the proper under reasonable with holding the authorization for payment of medical treatment is there a case provide supporting precedent for her position that no it does not why not because number one that was in one thousand b and we don't have that situation here we have a final hearing back in two thousand and four that awarded permanency and by the way that decision never addressed future medical but never sad she's untitled to  zero seven all bills are paid there's no allegation that nothing that there was any delay or or mail intention or anything like that during that entire period of time this is not the case to award forty thousand dollars in penalties against an employer position we don't know that we know that in december of zero six dr lu but now issued a letter that said eventually they're going to need to replace the battery sometime in the spring was  is letter that's fine the adjuster testified that she didn't think that was an imminent request for her surgery so there was no imminent request for surgery the only imminent request for surgery was june fifteenth which which letter was petitioner to dr luva now which was the regularly scheduled visit that she had she testified at trial that her better ease hadn't been working for six to eight weeks before that why didn't she go to  out and say hey i haven't had you working veterans for six to eight weeks so we don't know if that's true or that's not true i assume that at some point during that period of time the battery started to function or not work or or whatever that required was it didn't lubenow scheduled for surgery in may because we weren't working and cancelled the surgery because it wasn't authorized well that's an interesting point i don't know why it was cancelled council suggests that it was canceled twice some of that testimony was objected to and and my objection was sustained so i'm not sure that we had evidence direct evidence other than the petitioners or counsel's own statement that said this is rescheduled twice well and the reason that it was rescheduled twice i  bills i believe that is true but what what was left out was the fact that the adjuster upon receiving that can take that the doctor in fact tried to contact the doctor may eighth may ninth make tenth then left messages left messages on june seventh left messages sent you name it was addressed to was trying to communicate with the doctor to get the necessary information that he needed she wanted to know what the medical necessity was of replacing the batteries in the spinal cord and and where's going to be done so she can determine the cost which leads us right back to the plantation manufacturing cases that you can order authorization after a p p d awards than many you can't require them to to provide written authorization so i think it all comes back to i think this court the only thing that we can do here and first of all i think penalties are not appropriate anyway even if you take a manifest weight look at this thing if you read the record carefully but it's a matter of well because there was never any requirement to authorize the surgery and the only time that it was requested it was june fifteenth to not make a request for them to authorize the surgery so respondent would she had abi information needed and that is subject of that as you as one of you have indicated that to cross her arms and say i'm not going to pay is no incentive and also there is no indication that they need to right in the