own testimony which occurred during the course of his testimony before the arbitrator there is no evidence that the petitioner sustained an accidental injury which in any way was caused by his employment activities the medical records in this case are somewhat interesting and i can understand when the court would first read the briefs and read about all that there's a great deal of confusion regarding what really happened to mr alvarez mr alba says his records seem to indicate that he went to see his doctor for the visit on november the seventh of two thousand and seven any had some complaints about his right foot and i bring that to your attention because it is relevant to november twenty third after finishing the case work as a waiter went home and took issue off and experienced the massive amount of swelling and pain and discomfort in this world and subsequent to that page he then returned to his longtime treating better today i find that to be remarkably significant in my theory of the lack of good been severely of this case and the reason i find that remarkably significant is that mr albert says testified then that he returned to work and experienced the same or similar discomfort to a greater degree on or about december the twelfth of two thousand and seven this was the last date that the petitioner worked during the course of the a is matter petitioner's counsel says that that is the date he put on the application because that's the last date the petitioner work if that is in fact the case in infant fact the theory of the pla petitioner during the course of the arbitration at page one eleven he says the other choices i don't want to two questions myself on december the twelfth that work was there any particular time of that date when you were aware of an increase in the left ankle pain answer what happened is it just i felt it just walking down the stairs i felt this napping pulling feel when it was left ankle injuries yes or so why can't the commission realize well we'll get to them ok good yes they did but i think there's more facts here than that the point of raising the testimony for a hundred  incident in the application for adjustment claim and it establishes that the petition was attempting to write on a specific finite definite incident going down the stairs he will deny that i say that's the reason when he read through his lawyers office on august the first of two thousand and eight to sign the application for adjustment claim he specifically referenced the separate and welcome thousand and seven going down the stairs at the stairs on page one of love but there's nothing to indicate that any factor in his employment was that incident so what he does now is he bootstraps his case out to say oh i know what it is from repetitive from always based on a repetitive oh there's no application form there's only an application for adjustment claim for an incident which occurred in a finite date and time and irrespective in going back to your statement your honor yes the doctors say it's the result of a cumulative from a condition from being a waiter but there's no application for adjustment a claim on  for that and you can't bootstrap this case up he picked december twelfth two thousand and twelve counsel in response to a question by the arbitrator said we file that because that was the last day he worked no it may have been the last day he worked but that's the day he says the are a trader but something occurred going down the stairs well to prove that something happened going down the stairs establishes the principle incident you must prove all those factors of an increased risk he doesn't test players carrying anything he doesn't kiss to testify he slips he doesn't testify that was bad happening he doesn't have a fight with defect he says that he felt the snapping in foley when he went down the stairs now i know that the commission is very liberal in their construction of what is and what is not say the irish traitor is looking at the application for just one a crime and he's saying you felt you're basically if i'm in his head and saying you said you were injured while working on december twelfth two thousand and seven that's what the auditors thinking in his mind took was feeling uncomfortable brought up feeling uncomfortable is not a cumulative trauma case and sense the interval between november twenty third and december twelfth there was nothing education a degree in finance and attended law school he knows the manifestation date he knows that when he went on the on the twenty third two thousand and seven is it was well that's his state he can't plead ignorance we can't argue what is the purpose of finding this one we just leave this blank well we just leave it blank and let the man committed just by then at the end of the case the other chair can pick out an accident they do that that makes about as much sense as what he's done here there is absolutely no justification that you just can't you can't do it by his own testimony at the close of his proof that he should have amended the application say oh no my incident date was november twenty third two thousand and so we chose not to and you can't get your arbitrator finds a different manifestation date then he loses no dear dear is is some of them more modern i'm going to call them decisions that have come down from this this forward and indicated that there is a almost a sue a spontaneous date for accident but i think it has to have some semblance of reality to what the facts are and in this case if it doesn't fit in other words you could now moving forward as you note in the arguments were there was a substantial amount of benefits paid i think they were paid improperly i do not accept the sins of my father but i will stand here to defend them ok now let's let's move on to what's really the key to this case was his ability to work the treatment and the particular path ologies which have been identified in their own myriad of doctors in this case both podiatrist and regular surgeons counsel in his brief and he will stand before you and tell you about dr lee simon lee's a wonderful man he continues to refer to as the response doctor he's not he's a doctor licensed to practice in the state of illinois he was chosen to do  examination and since the doctrines of knowing keystone are no longer the existence and sense the craft would casey's not that doctors were purpose of admission he's a doctor for purposes of expressing an opinion and his opinions were but based on what the gentlemen told him that his work activity could have been a causative factor in creating a problem with the foot and in the tibial tendon why is it important one of the problems in the decision of the arbitrator is finding the relationship first noticed pain november twenty third two thousand and seven after work but he does not remember any particular trauma now however he noticed the pain again on december twelfth i would think again this goes back to the december twelfth date he have please a court of counsel i mean often bottom we represent brian albus as in the matter i just by way of background this this is before you it's been affirmed on all issues all the way up the only the only matter that has switched back and forth is the word of penalties and fees the arbitrator found repetitive trauma accidents a did not a word of the penalties and fees quote because there was cause for pause subsequently the commission reversed the penalties and fees in a two to one decision finding that the behavior to respond in this case is objectively reasonable dissenting commissioner concurred that this was a part of trauma accident but felt that penalties  you can make up the record i mean this was a repeat of trauma case from day one for us it was a repetitive common case in the five reports they received from their examining doctor not one not two five in a six month period i would assert to you that's pretty rare for what we do to get five attempts at changing your own doctor's opinion then they went and got a six the pinion which called it an exacerbation it was always repetitive trauma accident but because counsel has continued to assert this single incident the commission wrote it's really both an increased risk risk theory so what the writer wanted penalties is because well they had knowledge that everything that mr alvarez as said is true but they would like to create a legal argument that he didn't fit him selfe into a box to get complaints ability but they fail in that regard as well because here's a young man he's a waiter and he testified several times to repetitive pain he wasn't perfect he wasn't consistent that's not what duran requires in fact he fit within the framework of the flexibility test of that decision so i mean he said when he got to work i was uncomfortable my ankle in the beginning of the shift as the evening progressed my ankle got worse and worse i started to limp and these are classic repetitive tropp a type complaints this is how he presented the case to every doctor who saw him so in the commission right penalties because no matter how are you present a defense to this it subjectively unreasonable to come in and say well he got hurt at work we know that we want to argue that we don't owe it anyway we want to argue we don't know it anyway because you made an error on your application even though we all know that and repetitive trauma that's a flexible day they want to argue well it's a neutral risk no one presented that theory it was increased risk repetitive trauma running together so the first instance where penalties was awarded was the cut off of benefits in august of two thousand and eight now he pointed out that i had just filed my application up into that time the petition was paid and while i'm still asking that question so we found an emergency petition we put a penalties motion on we came to the hearing a light duty job was offered within the restrictions they acknowledge existed from other positions so what happened to the period where they owed that worker's comp right did they not pay he hadn't even seen his surgeon yet it was just a summarily rejected  defense into the case so we soldiered on he started working light duty he got some temporary partial benefit he saw a doctor pins or who said he needs a surgery he said he needs the surgery based on his physical exam using the and he didn't release him to work if he's ordering an f c e respondent terminates the light duty doesn't pay t t he doesn't authorize the surgery ok i don't understand the first two parts but they have a dispute about the surgery dr pins or does the surgery in april and finds a complete tear complete detach from the ligament at that point it's sort of hard to argue he didn't need the surgery even if you have a physician who says i don't think he needs surgery he needs an ultrasound which is to further explore that pathology so now we have a surgeon go in and look at it repair it he writes a letter explaining that he believes it's repaired of trauma injury evidence put in the record know what this is or call to challenge the petitioner they had three people in the room the arbitrator even asked do you want to call any of these witnesses know so he's telling the truth the medical have anything to to argue with that's why the commission wrote penalties and they're pretty clear about that they said that the first sentence in their decision is we see the facts differently and they remove any arguments about a neutral risk type theory and they further move to reason that without an objective defense there's nothing here for respon characteristics of work now he had a complete job description which is also in the sports medicine records and here was that was given to dr simon only dr simon lee said i have seen video surveillance of this gentleman i have seen the visible yes evaluation however i think he does that within the physical demands of the heavy however i am concerned that if he goes back to work he may not be able to work for a long period of time etc that doesn't mean he can't work it means he can work but if problems arise he should come back that's what that means it doesn't mean he can't work so he looked at the physical  august of two thousand and eight and on august eleventh on august twenty fifth the petitioner you know the period of less than a week saw two different doctors dr brawley and to learn and most importantly he saw a doctor observation here's what he tells this person to do he says he is also scheduled to see dr michael panzer next mom and recommended that he aggravat current condition to help dr pincer make up a better evaluation mr allen says understands this treatment plan now if you're a patient and you didn't know whether or not you needed surgery and you went this doctor who told you that he suggested you meet your condition so we can get a better picture of whether you need surgery or not for heaven's sake what would you think will i i'm representing the respondent would never ever ever tell anybody to pay for that surgeon based on that report now if every test that was done up until the time of dr pincer surgery for that post period tibial tendon showed it ten no turn correct history injury seen at surgery was consistent with a single injury and evolution of the post cheerier tibial tendon with a rupture of the spring ligament a single incident after multiple small injuries bruce's a single incident there's no testimony about the small injuries none first of all the case did as application for adjustment of claims states the petitioner did not have any surgical necessity following this incident until it was found in two thousand and nine and that is after every doctor his song found what i paid for the surgery never i am i am stuck with what i had the benefits were paid but no further benefits should be paid no penalty should be paid no additional temporary total disability should be paid i sixteenth at approximately eleven forty four and fifty nine seconds the hard for the insurance company or the employer someone faxed to the doctor the complete job description and that's all they had and that's why that sentence in this report on in paragraph the three says i requested more information and was thrown that's all they had meaning the job description they sen