indicate when he was working below the two brick masons he was warned to step back out of the way because there was a different way that was going to be following and as he made a step back he stepped on the stick portion of a come both of his co employees indicated that he did indeed sustain that incident he finished out the work day he went home he testified about three o'clock in the morning the pain became overwhelming in his left elbow and he then showed up at work for a five am call worked until about one pm he remembers that very specifically because the corn festival was going on in norman and so they had a shortened work day he did complete his workday and then went to see his primary treating physician dr spaniel dr spaniel diagnostic intrusion to the elbow did x rays took mr pena off of work mr pena saw him on monday august twenty four when mr pena left the job site after his work injury on friday august twenty first his boss gave him a layoff slab and said that he would no longer be needed on this project they were waiting on material there was no more work for him with obama and he should report back to the union hall for his next assignment that assertion that he was wacko on that they would support the argument that the offer of employment of one day from core construction was not even an offer from an employer that he have any existing employer employee relationship with also that is correct judge with respect to conditions that developed subsequent to the petitioner seeing dr outlawry dr outlawry saw the petitioner one occasion september twenty second two thousand and nine dr testified that with regard to the owner nerve symptoms and what he described as cubital tunnel compression those were symptoms that he was treating him for in december over the testimony but i would assert your honour's that this case is very similar to the phillips case where really dr outlawry did not offer any convincing causal connection opinion with regard to that but in this instance i believe we need to be manifest weight of the evidence because there is no left that's to substantiate the change in condition on nov third which is when the arbitrator found that mr pena is that if it's were terminated and i think the timeline in this case is extremely significant i will give your honour's that there is some evidence in the record regarding look at what is the information that the commission relied upon in determining what dr out lori's opinion truly was thanks for having already gave the opinion that in september of two thousand and condition that a c t scan should be done doctor at lurie order that c t scan on october thirtieth he did not see the claimant in between he also testified that the e m t study that dr o'keefe had suggested be performed that there was a positive ten ells i think this case is unique in that dr at mori writer's opinion for the claimant and basically says yes the mechanism of injury that he two thousand and nine that is accurate dr outlawry never examined him again but i believe it is worthy of note that dr l lawry noted that based on this review of dr okies progress notes from the november the december visit there clearly was a positive to announce and dr outlawry even sat in cross examination i don't know if that kinda dition developed over time after i laid my hands on  i think also your honour's that it's significant in this case where the arbitrator cuts off t t d when we talk about the two conditions that this petitioner had clearly dr outlawry says yes he had a contusion to the elbow and on september twenty second i was predicting an eight to ten weeks of treatment necessary for that condition even if we assume for purposes of argument he does cut off the condition as a consequence of the development of cubital tunnel syndrome this gentleman was on restrictions by his physician dr keller his physician d na and offers him a six hour flagger job i think that's a significant issue against manifests weight separate and apart from the causal connection on the people tunnels but it would  mr makki that he was not refusing to work but he was refusing batter tickler job because his position had him completely off of work at that point in time the doctor keller had him off of work october twenty second individual with a back injury who could not work for the actual employer was working for the y m c a and that work was deemed by the court to not be sustainable or stable and michael johnson's condition had not reached the point where this court said you know well we can require him to go out and work and not receive t t t benefits i think mr pena situation was dr keller had him completely off of work he received a phone call from an employer who had previously fired him and said we have a six hour fly agaric job for you go mr pena sat i don't want to be disrespectful i don't want to refuse the job but my doctor has any completely off of work and at that point in time mr pena did not even know what doctor at lawry's opinion was because that or at laurie did not through no eight to ten weeks later which would have put him past the november two thousand years to be the critical question we need to find in favor of the claimant how do you respond to the argument that we would simply be substituting o for the commissions on the issue of credibility with which it is i would respond that i do not believe that this court is required to weigh and he added and so on the first issue if we assume for purposes of the argument that this petitioner had a contusion to the left elbow and we forego making considerations about the surgery that dr o'keefe recommended and the cubicle tunnel syndrome there is no disputed restrictions quote no portion pulling or listening with the left upper repitch right now are my notes from well i i know your honor in my brief and also in the respondents brief we both assert and put forward that october issue is whether a six hour job is a basis to terminate benefits for someone who's relying on their doctor's information and mr makki said he didn't know how long that job was going to last he couldn't say with write this case and i asked him the following question so if i understand your testimony is it not the accurate or it is not the huge trauma that he experienced on august twentieth of zero nine that would have been the cause of period of time before august twentieth of zero nine that manifested itself august twentieth of zero nine and if he's saying that he developed that cue ball tunnel syndrome as a result of the heavy use of his left elbow after august twentieth about nine think that that's a little bit of a red herring in the sense that ok he says you know we're dealing with a specific date of august last august twentieth about even if you assume that's true what what you're telling me and you know there's no question about okies testimony to that effect justice department you still have all of the other testimony from the other washroom up and so we get it manifest but i only post the question because there he said it's not as a result of the q from i think it's clear based on that yes and then he said he does more he did say more i'm not suggesting that what you're telling me is is incorrect based on the record i'm just saying that if you look at that continued use of the left arm there's no evidence in the record just substantiate the petitioners late testimony concerning the use of his left arm after the accident it's clear it didn't have it he didn't use it at work because he did so you're right i understand i don't disagree with with the statements if you made in all due respect i just think it's a matter of interpretation it's not black and white it's case i think it's good to me it gets it's a question we cannot substitute even though in the court has stated this many times and i had cases before you of both sides  rule in or rule out the degree of compression but he did say that the treatment modalities and the actual treatment as a consequence of the august twentieth incident did lead to the need to further explore that i a have had many many cases before your honor where it is manifest weight and certainly i'm not trying to argue that the test is any different in this particular case but i do believe that there is a unique issue with respect to the consideration that was given by the commission on the term a nation of mr pena's t t t clearly the decision of the commission in this case requires claimants to follow whatever  yes whether they know about it or not the employer simply called mr pena and said we have a six hour job even though we laid you off and you are required to come and do that flagger job and if you don't we're going to terminate your benefits that gives the petitioner no right of recourse under the facts in this case and i do think that that is a legal issue that there's more you can consider in light of schmidt all factors and the fact that he had not in