well good morning and may please the court my name is cliff pirlo i'm an assistant attorney general and i'm here on behalf of the illinois state treasurer in his role as the administrator for the second injury fund this case arises under section eight eighteen of the worker's compensation act that section provides for permanent disability benefits for individuals that suffer an injury causing them to lose the complete and total use of a limb if they have previously lost the total employment of use of another whether this court's precedent is clear interpret in this provision in order to qualify for permanent disability under this section an individual must establish that they have lost all normal use of both lands there is no dispute between the parties that mr thomas has lost the one hundred percent use of his left leg the sole issue before the court is whether question is i think the question of work is actually fairly if candidly a relevant under this provision the question of work is something that is more appropriate and appropriately targeted to an eight african court eighty is feeling about normal use in an individual that can use their right leg to walk has at least some normal use in their leg one hundred percent is a high bar there's simply no doubt in an individual that has the ability to use their right leg to walk so i want to you're saying it should be simple if somebody can walk you can't be a perm told well again he's really you're saying yes that certainly that certainly is the only nuance i might add to that would be that there probably are some circumstances in which an individual has such a de minimus ability to and it's unpredictable it's extraordinarily rare they have no flexion emotion and the fact of the using their leg to hobble but not really walk in those instances i think there might be a distinction that could be drawn that the minimum threshold is exhibited in one or two of this court's process i think the illinois bell telephone case which mr thomas cites and his brief appears to recognize that sort of de minimus threshold where the individual essentially had an unpredictable ability to use his leg in order to walk that individual's pain was so great that on most days the the claimant was unable to walk and so it's difficult to say that that he really has the normal use  doesn't know when he wakes up in the morning whether he's going to be able to put weight on his leg but so quickly but mr thomas clearly that's not the case for him it in his own words a good twenty times per day mr thomas walks and ten and fifteen that against the man if this wave of the evidence obviously he's not like isn't functioning normally as opposed to you and i are a normal person is that well i could distinguish between functioning normally and any any amount of normal use which is the standard the court has laid out now all those examples that you cite in that mr thomas cited in this brief are in truth limitations on his ability to use his leg but they're not absolute restrictions the standard for a separate provision for just losing the limb altogether right so i don't think that that is going badly or not if mr thomas needed and assisted device to walk it every moment of every day this would be a much closer case we would have to use the device was a good walk of an hour well i think the question would be if i think that's again that's a closer question certainly that we're not conceding one way or the other whether that whether that would qualify as one hundred percent loss of use i think that the but i think we're an individual has the ability to independently use their lamb and use it without an assistant vice which mr thomas is able to do by his own a was not the loss of normally used to found against the claim that he had been in the better position isn't it up to the to the commission to determine what constitutes the normal use normal use of the member under the case law and then you have the hurdle of showing it's against the manifest weight i mean there's certainly evidence here to support he's lost the normal use of his leg isn't there isn't there some evidence you you can see that there's some evidence of them rather he's lost some normal use but not all of the normal use that's a distinction that there is normal well i think that the that the difficulty with this case is that you have to fundamentally irreconcilable findings here mr thomas can use his leg consistently on a regular basis albeit with limitations to walk and mr thomas can't use his leg at all those two things are simply so fundamentally incompatible that the core i think out here has an obligation to explain how  the ultimate finding which is that hundred percent he cannot use his lag is able to be it follows directly from these examples in which mr thomas in fact can use a slang i think the clarity of the services where the court held were this panel in fact held that an individual has the ability to emulate the ability to walk and to stand even if those abilities are limited in some way in that case the individual could only walk for approximately two to between two and three hours and mr thomas case it's between three and five or so years of marriage then you point can you even have some to intuitive appeal but the problem is that you follow your logic you completely exclude framework of the normal use you throw it out of your analysis isn't that part of the thought the cases talk of on normal use it's not want to extreme with the other is that according to you you can see if leg was cut off the loss of the normal use but now you seem to be saying because you can walk somewhat a little bit do some normal functions of like you can't be a pro top left if you're saying well i think the standard with all the statutory language here is total belts so i think the notion that you have to be able to use your leg exactly as you could before to in some capacity and then the other limitations or collateral in order to meet the one hundred percent threshold essentially flips the analysis on its head at the the the fund this is a unique provision purpose and so for the court to essentially say that so long as you could walk in exactly the same way as you could before it then that's the that's the then you are then that's the only circumstance in which an individual doesn't qualify for permanent disability benefits our view is precisely the opposite and is more consistent with a long line of case law dating back to the one nine hundred fifty s this court's precedent at least dating back to the one nine hundred eighty s that i and where it is made very clear that the threshold is that the standard is that someone that a claimant has to demonstrate that he has lost all use all normal use in order to qualify off yes yes and i think that is that is the generally applicable standard with the sole exception for that de minimus circumstance which i don't think applies here because if mr thomas qualifies under the minimal standard then almost any or had to wear leg braces at all times had to be on a walker at all times that's certain that individual would not have any meaningful amount of their ability to use their leg because they're dependent on some other device or object  percent use of the normal function so it's not one hundred percent use of the limb of the of the normal function so normal function is in the mix is it not it's yes it is and one of the normal functions of a lag is to  please the court counsel my name is frank gone it's my pleasure to represent mr thomas in this case ome much content able to walk or he can walk but the question i think is why can he walk he's got an artificial hip he's got an artificial  brace in order to emulate it all he has severe restrictions he can't he's unsteady on his feet he can't live on more than fifteen pounds and if you read the f c c closely it says he cannot do that in the right knee of so it's fairly similar to our case except this a minus the injuries were much more severe the he ended up with a total hip replacement totally replacement as well over because he can't carry it down and he has to go down the steps so raw if you look at the u f c one point one one miles it took him almost five minutes to walk that that's pretty slow so he's not st on his feet he's very slow yes and has a sedentary job that some of the commission looked at he does have to walk around occasionally but he complained that he hasn't pain when he does it the commission also looked at his age loss of income the  the cane on he has to use artificial devices to assist with getting dressed take a shower uses hand controls the drivers are on because he has a loss of sensation in their right foot these are all things that go to show that commission's decision was not to guess the manifest weight of the evidence that they had enough information to base their decision on to find this man in one hundred percent loss of use of his right leg and because he had the primary patient on the left leg he was entitled to the statutory permanent toll disability benefits even though he's able to work and i think that the commission's decision is certainly consistent with the counsel for mr thomas perpetuates what i think is the central air as analysis as he treats what are the limitations on normal use as absolute restrictions and that simply is inconsistent with the standard for the court as laid out  he seems to want to and now create what it is to an artificial device exception which essentially force which because mr thomas has had a hip replacement and the ear placement he is therefore entitled to permanent physical component that's right i think i said it was a closer certainly a closer christ in terms of his that of mistresses reliance on the bell telephone the treasurer case i would just prefer him on the court in the trial in the bell telephone case that individual did not know when he woke up in the morning whether he thought he would be able to use his legs mr thomas is able to walk routinely and does so between three and five hours every day as part of his job and with respect to the treasure a case that individual had polio and had no flexion whatsoever in his right heel and the argument was that he had lost one hundred percent use of his right foot an individual who cannot move their ankle or their heel does not have any use of their foot so the fact that he was able to move his leg to allow him to propel through word without using his foot doesn't the street that he had any use of his foot and that he can see and mr thompson's counsel continues to perpetuate one of the central errors in this sort of analysis which is to make reference to his free injury conduct and say because he can't do what he did before he is permanently disabled i think the best not to know i think that's certainly not that's only going to preserve and i think if you look at the commission's decision at its core the central area here is that the court said it's rationale for awarding permanent benefits was that mr thomas would be unemployable if he were to lose his job