march eighth two thousand and seven there is no documentation there is no evidence in the record to support that particular award very arbitrary on their part actually award that the commission also awarded maintenance from october one two thousand and eight through june sixteenth two thousand and nine at total of thirty seven weeks the how they came up with that date those dates those weeks again arbitrary there is no evidence in the record to support that they came up with some date a decided they were going to find the petition more credible and based on his testimony and the speculation of when he could have returned to work they decided we were going to award thirty seven weeks of and then also be awarded a book ational assessment that the respondent that is i'm sorry this official and the defendant were going to get together and discuss the scheduling of occasional session again we're talking about leskie and he spoke with mr beck and prior to his work accident he had a discussion with mr beck his work accident around those as you know is it was on generally seven two thousand and seven around christmas time two thousand and six he had a specific discussion that was testified to by mr beck the discussion focused on mr evans the defendant indicating he was going to retire advising that he was not going to be working after the his testimony appears to jump from one thing to another but he is what we can say about the petitioner is that he is not consistent where we can say about the petitioner is that on the one hand he denies that he was capable of doing the ludington job as a supervisor because he has for specific sions and then on rebuttal testimony he says all i actually was able to do that the better tickler job so he's not consistent as far as that's concerned and as far as the petitioners testimony about rather not intended to retire and not only did he have this discussion with mr back prior to christmas but immediately after the alleged accident in two thousand and seven january two thousand and seven he had a discussion with mr back and with mr lisc where they discussed mr back mr whisky mr beck discussed with mr evans that he didn't want to retire but they wanted him to do this job job that would have been within his restrictions they said to him don't retire and he discussed with them the problems that he was having in terms of his wife and he wanted his wife wanted to be there to quit working you've been traveling for so many years that was unequivocal by two individuals mr lisc even mr babbitt let's assume for sake of the argument according to the chase there's conflicting evidence and they're sure just as we know it's within the province of the commission to weigh resolve conflicts in the evidence where the credibility sole testimony in this case you can rely on to say that the petitioner did not retire that the petitioner is entitled to benefits for two weeks at the petitioner is entitled to  i pension requests he applied for that and generally fifteen eight days x p seventy eight days after the alleged work accident he applied for retirement benefits so not only did he tell mr back prior to the accident that he was going to retire that only but we have a discussion mr back and mr leask you have a discussion with this petitioner immediately after the accident well telling him please don't retire and he also applied for pension benefits because he intended to retire and that was the position he did not want to work after general twenty two two thousand and seven because that was the last day of the ludington job you intended to retire and in fact when he submitted when he submitted i'm sorry february two thousand and seven when he submitted there any any indication in the record that he did receive returns your honor we have on the record it is not that he did or did not receive those benefits what we have in the record is that he repeatedly refused to accept a job within his restrictions that is the  repeatedly refused to accept it because he was going to call the union to find out how that would impact his pension benefits he knew he was going to get those benefits and he was afraid of how a whisper to her job might have impact that because he if he were to receive any money working after he's receiving pension benefits there would be a direct payback to the pension and that was a concern of his when there's some conflicting evidence on whether or not he picked a dairy and as well did he testified and told the supervisor he the documents and you don't look at the the his own hand written pension submission form i think i think your honor after that we're still talking about a petition evans who spoke with other doctors and told them that he had retired from work whether he intended to return to work for this particular importer or another of course that's his own business he had retired from his position with the chicago bridge and iron he was no longer employed by the the commission i'm sure you notice the commission there was a two to one decision and to the commissioners who decided to modify the decision as i've indicated earlier but one of the commissioners commissioner lindsey  accept these the job offers when they were proposed to him that is the darian job offer when it was posed to him and by the time he did turn around and say that the union would allow him to take that job i believe that's unequivocal as well he did say that when the union would allow him to take that job because he had filed for retirement and was getting these pension benefits he was concerned by that point it was too late how long is an employer supposed to keep a job open when they make a light duty job of the employer at that juncture when mr evans made it clear that he was not going to come back they didn't have to keep the job open they gave it to somebody else they went to a multiple times multiple discussions and asked them to take this job and he said i cannot do it because i have to talk to them when the employer called him and beginning of two thousand and eight and said we may have a job available working four to six months starting in the fall and he really said i think i'll take that job and they had someone come back we actually employed by chicago generic they came back in the interim i mean literally we've been in the testimonies is not to sink about that issue but it does indicate that honor this was the employer calling him and saying because they like this gentleman you worked for them for twenty seven years or rather you didn't have to call me the employer here is where i get bogged down with this case if the employee never car along with the commission evans was no longer employed by that they liked him enough to give them a call if you wanted to come back that's great in this condition a change that's great they were not negated to actually offer him that job number one of the number two when an employee returned from overseas to accept that job do they figure that out where does that come from and what about those benefits in between those periods of time if you're going to tell me that the commission awarded proper benefits here what about all the time in between they were due to weeks of  the rationale of the commission what about between march eighth two thousand and seven through october one two thousand and eight what happened to those benefits was he still not according to mr evans was he still not disable it was he still not retired and what i'm saying your honor says i believe that the commission decision overreaches by a great margin the evidence that was present at the trial i believe that mr evans did not present credible testimony  honour's to modified reverse the commission's decision in that perspective the arbitrator was very suited in the way he analyze the evidence that was presented before him commissioner lindsay reviewed the record and also sided with the arbitrator we had two other commissioners who said well we're going to make these general awards that happened no basis in fact and that's why we're here today when you argued the case before the commission did  but in the superbowl sometimes they have funny commercials or entertaining commercials and one of those commercials is here star of the famous actor and director clint eastwood and some of the you might even remember one of he worked in the union and the respondent for over twenty seven years he was closing in on thirty of the a twenty seven and a half then respondents own witness testified with a good worker he was and if he wasn't good wasn't a good worker he would have lasted thirty years or twenty seven years  couldn't find you know that he was actually getting retirement benefits i know he had looked into retirement and also i mean when the social security administration mails those annual statements to good i mean that i'm sure we all of you know check those out never interested to know what we would get if we were to retire today or retire down the road at this rate or if we were to become disabled today you know just because someone is looking into their retirement benefits doesn't mean they're going to retire in actually your honor and to answer your question on page one of three of the arbitration transcript he says quote i would like to continue working yes some of the other bad parts of this decision is the only reason he had to take return or benefits if he did indeed get them was due to the century he may have inquired into what his benefits would have been but there would have been no need to take the retirement benefits had he not been injured and not been able to return to is just you have a job in the record to cooperate on the argument the claimant statement that he was thinking about retiring or planning but still wanted to work or some documentation somewhere to cooperate and i'm not sure any documentation says that but we can look at the facts of the case or might most of the kept going through my mind when i first was assigned this case is why would the respondent keep calling him to have them to have him come work for them if he was retired and if he's retired he's retired he's done but they kept calling just the way it is the point well taken or i would just go back to the fact that he you know he testified that he would have liked to have continued working but also they were trying to arrange work with his son they had the whole nepotism thing they were trying to work out so let's let me understand this you have he says and there seems to be some evidence here through his testimony others that i have this injury i'd like to continue working had talent he could there's probably a lot of jobs he could have done had they just taken or maybe effort made the attempt to help them and provide some vocational assistance to him and also you have to remember this was a one thousand b you know he's like i said he still had the other surgery  very well judging from the record i'm not sure that he really was retired i think that's one question that that's up in the air yeah hear this and i agree but assuming that he was  bode well if he was actually retired maybe he wouldn't be entitled to that but i'm just not so sure he was retired based on the record well based on the record which is all we have to go on for you actually just fine because i was reading it late at night but  had testified specifically that he was willing to work in january and february of twenty zero seven if he had if they would give him work within his restrictions i'm not sure about that without going through the test want to get i do know he with the respondent really should have done his offer vocational systems if they knew that he would not be able to do the type of work he had been doing all that time but the bottom line really is this and this was addressed by the circuit court judge in his decision that the respondents currently appealing judge grant wrote that under the law the commission may set aside the arbitrator's decision because it chose to find mr evans more credible that's from the pharo case the evidence in that case and in this case could conceivably support a variety of inferences and reviewing courts will not substitute their judgment for that of the commission merely because they might have drawn different entrances their conclusions from the same record and that's the standard is there enough evidence to support the commission's decision and in this case i think there is the commission found that mr evans was more credible than ruled in his favor i think the commission got it right at least three wa arbitrator did not they vacated the order to repave almost nine thousand dollars that he received in p p t advances apparently he had showed up for trial four times i think which you know i know you don't always go to trial when you think you're going to that's and they were the able cation assessment be prepared and actually if that had been done when first requested by mr evans and his attorney we would even be here today so what i would ask is that the decision of the circuit court which affirmed the decision of the commission their owners i just want to make sure that we don't confuse whether or not he retired because of his work accident or were tired of his own volition intended to retire prior to his work accident you'll note your honour's that the documentation that he submitted was in general fifteen two thousand and seven talking seven days after it back sprain strain he had a work injury that caused the back sprain strain one week later he submit is documentation to get his pension benefits because he intends to retire he puts on there that he's going to be retired as of march one two thousand and seven with no confusion he's not a doctor he doesn't know he's going to be off work for the next week or two or month or year there's no he's going to have fusion surgery is not a doctor he intended to retire that's why you submitted it back that's why he spoke with mr beck before this work act and then said i intend to retire that's why mr back in history list he met with him in plainfield they met with him and they said we don't want you to retire we'd like for you not to retire we want you to continue working for us we went above and beyond and the idea that the employer dangled any jobs in front of this person is you're honoring i was that i was at the hearing i heard the testimony and i was the furthest thing that i think the arbitrator thought that the mr at the straw that mr strong thought and certainly that i thought so from my perspective your honour's of the retirement documentation that evidence his desire and intention to retire and he specifically stated he was retired as of march one two thousand and seven to hold the spawn liable for a decision by this commission that again is not grounded in fact that seems to be arbitrary at best in terms of the bates and which the t t t and make mince were issued seems on reason and it seems to me in my perspective a rather it would and the like if they wanted to come back would you would you like to accept this job then for anyone to at this juncture say that for that employer to like this employee and to call him back and title that employee at the commission from the title that employee to ma