concluded that as a bed date he had to reach maximum medical improvement as a sportswear maximum medical improvement does not occur until there is a stabilization of the injury or the employee has recovered as far as the permit character of the injury will permit i would submit to this court that there is nothing in this record that would support that conclusion and in fact every piece of evidence in this record except for the respondents retained physicians opinion actually contradicts thick aspect of city and he actually ordered the follow up two weeks later for further care there's there's simply no evidence in the record here that would support dr calles conclusion that this that he was at maximum comparable when his own doctor at that time said hey come back in two weeks you know we'll continue treating for this it's also important to point out that dr calle even admitted that the history given on that august twenty seventh two thousand and two date was not a man who knowing i had symptoms essentially admitted in his own testimony that he probably wasn't an accident despite the plaintiff's complaints of pain the clear and obvious nature of his symptoms on that date and even his own treating physicians orders on that date the defendant from that point on refused any further treatment september ninth was the date that he was ordered to follow up plaintiff testified that he showed up at the doctor's office at the front door he was denied  roughly about getting additional treatment that he was still having problems with this again it was denied there are documents in the record establishing corroborating the point is testimony in this regard there's an e mail from december two thousand  which indicates that the plaintiff had requested further authorization to see an orthopedic surgeon by the day with dr hennessy but it was tonight the official denial even came in march two thousand three which in my mind indicates that there there was enough complaints in an upper class that they felt the need to actually respond in writing saying any further treatment on this matter is no longer proof the most significant complaint occurred in may may fifth two thousand three when the plaintiff was treating with dr o'connell for a subsequent unrelated injury rupture of his right biceps during a follow up on may fifth two thousand and three he again noted the left pain that he was experiencing and he related back to the original accident but the doctor for whatever reason decided to ignore that he said he wanted to focus on the new injury the condition this was the second significant bases that the kid the commission relied upon in finding no causal connection was that he didn't make any further complaints and made it to two thousand and three but the record is absolutely clear that he did it right there in the medical notes despite all of these claims these continue complaints rather the plaintiff was not treated again for his injury until july ninth of two thousand and three when he visited getting surgeon dr on the brecker again for the right biceps rupture which was run related he again complained of a left  medial pain in his knee told him his history about the mechanism of the injury that occurred and how occurred immediately he orthopedic surgeon decided hey this sounds like a minuscule tear let's get an m r i ten days later the m r i was ordered  found a minuscule tear essentially what the defendant is relying upon and what the commission has concluded is that there's this gap in treatment from august twenty seventh two thousand and two to july ninth two thousand and three and that because biggest issue one of the biggest issues in this case your honor is that essentially if we allow this decision to go through we're setting a precedent that i don't think this court wants to accept which is that a defendant employer can wrongfully unlawfully deny treatment to one of its  employees and then later justify and try to validate that denial by saying he didn't get any treatment you know during that period of time he didn't exhibit any symptoms sabera there's no causal connection that's exactly what commissioner sherman found date of the accident of may sixth two thousand and two until his last treatment date with dr kahn on august twenty seventh two thousand and two this is again refuted by not only the point of testimony concerning his his injury d is four or five years after the accident in his initial treatment actually conceded the issue of cup caused a connection when he stated that the while looking out for multiple injuries he said these are for work related injuries  that afternoon honors may please the court counsel i respect counsel's argument i would submit to you that and basically he admits that in order for you to make any change in this decision  it's purely a question of fact you must find that you were going to interpose your judgment for the judgment of the commission on the question of which dr because this is not a it's funny how you wind up with two cases the last in the afternoon they're both left knee injuries but you've got two doctors with competing competing opinions in the commission has to choose one and they have chosen one and in the commission is also given the responsibility for determining the credibility of the claimant the arbitrator is given the responsibility for determining credibility and when you look at the the arbitrator's decision she found th the petitioner not to be credible and not simply because of an error in one one of the notes of the doctor but churro the levin page decision carefully analyzing all of the evidence in reaching the conclusion that the claimant wasn't basically what she said and i'm i'm parroting what she said because i've got other arguments i can make is you know it's incredible for me to believe that the man says he couldn't get any medical treatment that's why he didn't treat over the year because what i believe  editor talking is what i believe he really didn't have that many complaints and the reason i say that as the arbitrator is because when he went to see dr braca in july two thousand and three he told the doctor about the  the alleged injury and he received treatment now he says i didn't get treatment for a year because you would not arise it but we didn't authorize it in july two thousand and three and yet you receive treatment so it's specious to say that i couldn't go see a doctor when you infect what you saw doctor and you got treatment even though you hadn't been authorized for treatment and the truth is that at any point in time he could have seen a doctor and he could have gotten some treatment you know how he pursued it but perhaps the thing that you have to go back to it's what one of the main things the commission relies on is the initial treating medical records from dr mcconnell and recognize that this was a minor injury but this wasn't an injury which caused a day or last time the man continued to perform work it was a minor nice strain he saw dr mcconnell for a few visits in may of two thousand and two and then after a couple of months he went back inside dr mcconnell in august two thousand  roy you know that that they had shows that he had all the and that he had a medium medium in this case here and the thing that you have to do is you you look at dr mcconnell's record from may of two thousand and two in august two thousand  and the physical findings are what you're looking at to determine whether or not there's a medium is his fear and it's not they are you know the doctor didn't examine but you look at the examination for range of motion no one fusion no  to justify the conclusion that he had a medium in this case here as a result of the may two thousand and two accident in fact and this is one of the things that dr kay all relied on is the area where he put the me and hit complaints yet it was in the knee but it wasn't in the part of the knee where you'd have the medium discussed here it's a slightly different part of the knee and it's not that dr calle said you know the man didn't have an injury to his left knee what he's saying is from the accident of may two thousand t based on my review of the medical records he was adamant my as of august two thousand and two and there's no reason to say that well you know that the employer didn't authorize care and therefore he couldn't get any care i mean that's just you know the man had a a perfect opportunity to evaluate the credibility of the claimant as well as review the medical records in the medical records should reach a conclusion as to what factual findings to a doubt is did the commission  you know and that obviously before it got here the case went to the circuit court and the circuit judge wrote out a final analysis probably better than our brief as to the case law i guess to the standard of review on india as to the fact that this is a question that was uniquely in the province of the commission in their determination shouldn't be upset unless there is no evidence to support it and there is evidence to support it in the medical records and in the medical report of d opinion a doctor that didn't see the patient until five years later didn't review was not the medical records until five years later and in fact changed his opinion based on this very important issue of causal connection as soon as he figured out the defense was going to pay for s again this is a this is a president that i don't think this court should accept but the defendant can unlawfully deny treatment to a point that clearly has symptoms that are ongoing that are clearly not reaching the point of maximum medical treatment and then later be able  to look back in history and say well he didn't get any treatment so he apparently doesn't have any symptoms so there's no causal connection council also brought up the arbitrator's ruling which is based on the credibility the point of but again her  made mistakes just like the commission did that he didn't make complaints during the time this quote unquote gap of treatment we had meant there is a gap of treatment but it was caused by the defendant's refusal to authorize treatment there is not a gap of complaints or symptoms which would somehow negate the causal connection in this case as to the point of scrutiny counsel's claim to that he had the right or the ability to go seek other treatment again this gives back to the issue of he is now being placed with the burden to exercise it is much as he can to go out and get treatment even though in this case his employer under a worker's compensation system should have approved his treatment his own insurance company night the claim because it was a work related injury and so now you have to go and spend his own money you know because he because the defendant initially had already denied treatment that this is not right  again and to dr kao i think his credibility is at issue though i don't know that this court can review that and i agree that that is the commission's province however all of the conclusions that are made by dr kay are not supportive of the record they are all against