but sometimes it is not but sometimes it is and after the last case i i don't know that i that anxious to be up in front of you on inside i have a difficult task in front of me this morning i am here to persuade thousand and aggravated an underlying condition to the point of requiring a three level cervical fusion is against the manifest weight of the offense and the award of temporary total disability benefits after february twenty eighth two thousand and eleven for a brief period of about one month is also against the manifest weight of the evidence and of course the award for future medic call in the form of said three level fusion is also against the manifest the employer doesn't dispute that petitioner sustained a cervical strain on september twenty three two thousand and in the course of his employment however if you look at this man's long history of cervical complaints including a recommendation for a two level fusion at the same levels that we are discussing today and his previous neurosurgeons urging if that he have this surgery show that this gentleman has continued to have cervical complaints the records are very difficult to read but in two thousand and eight he's describing how his neck is bad i think the word is and it's always bad what is  confounding is that after the commission back in two thousand and one said you don't need surgery on her the compact he again went back to work and did his normal job until he had a cervical strain and the diagnostics the m r i your honor after the most recent accident is unchanged when compared to the prior m r i so an aggravation there's no change i think there may have been an exacerbation and the employer dispute that they paid roughly six months of temporary total disability they paid medical through march of twenty a lot and dr korn blat reviewed all the records and concluded that he was back doctors have testified that you don't really see changes on e m g n tell three to four months have gone by this is a chronic condition and you can't tell the chronicity of the complaints on that disregarded the only physician's opinion who reviewed all of the medical records but don't they have senses enough to them that subset this as the expertise the weight of the evidence the credibility of the doctors is that up to them to do while i agree but when their decision is or their conclusion excuse me is against the manifest way to the evidence when it flies in the face of logic as we believe this one does it is the court's obligation to say that didn't pick me simply threw that o you have doctors and rick the petitioners the employees i am the physician was not reviewed all of the records who has concluded somehow that there's an aggravation when there's no change on the m r i testing from two thousand and two to two thousand and ten he recommends surgery that was recommended back in two thousand and two there's no change in the man's condition from the employees standpoint it continues to be i need surgery and he didn't have it in two thousand and two he hasn't had it in two thousand subsequent to two thousand and ten as well again he's gone back to work  record reflects that he's back to work doing its normal job from march of two thousand a lot of untile he testified in november of two thousand and eleven again it's all the same pattern as back to his baseline where he was on september twenty two two thousand and ten the day before the accident by the end of february two thousand a lot of time when he had the functional capacity  claimants condition not affected in any way by claimants x and if september twenty third twenty then that's your argument what medical evidence or testimony supports that interpretation while he continued to have written what he he regardless of the work activity he had to cervical strain and he recovered from that within approximately six months and was able to do his regular job so well but the well he had no pain no treatment after february twenty eighth two thousand the lot and that was the date that he was allowed to go back to work in an unrestricted capacity there's a month gap in between that time there's testimony he needed to get a full duty work slip but there's no reason he couldn't have been back to work after he was told that figure twenty that week that he's able to go back to work and there's not changed not known proved in those three four weeks afterwards to america in petition of due to his his regular job duties he's not gone back for medical care from march of two thousand and eleven intel nov two thousand and eleven he did not voice any complaints to the employer during that time again  consistent with our position that he had returned to his base one did not require the surgery and that was his coworker doing all the lifting that took the coworker testified to it was unknown to the employer form black authorizing the return to work on feb twenty eighth was and i doubt i can't answer as i stand until sometime in march and mine cation from the record is that your people would not let him return to work under light duty or modify duty he told him a clear clean release where you don't come back please the court counsel dave wilson m b f of the apple e and defendant mr williamson i agreed contrary to what i responded initially put in their brief that it was that the questions before this court are matters of law and contrary to the manifest way to greenwood counsel's assertion here and obviously with the court agrees that this is a question of manifest weight the decision of the commission i obviously well founded on all the facts and i know that you've tried to reach the head of the situation and say this is really an argument between dr coren blat and behalf of the employer and on behalf of the mission or and it is the purview of the commission to draw inferences from that evidence and to make a conclusion not only is it well founded the conclusion that they draw is absolutely the correct one beyond that every issue that the respon it raises in its brief is a factual matter that the commission dealt with in detail they understand that this man does a heavy duty job moving twenty five to twenty eight pound cases of beer from heights of ten feet high eight hundred times a day during his twenty four year career with these people and if you do the short calculation the supposed to eat ten tons per day that he handles moving this product this man has never hidden the fact this is one nine hundred ninety eight he said complains to his neck  shoulder the commission is also aware of the fact that during this entire time gentleman has never taken time off work he's never required any modification of his job whatsoever the commission is well aware of the fact that his previous case which occurred in one nine hundred ninety eight and that there was a claim to proceed with surgery at that time was tried and surgery was denied by the commission the commission is also were the fact that throughout that case this gentleman never took a day off work earlier case nor did he require any modification the commission is also aware that in the impending period after that up until our accident september twenty third of two thousand and ten this film and did have continuing complaints to his neck and shoulder that he was able to perform the full function and duty of his job without taking time off or requiring modification that's the gentleman that the commission in our case was presented with as a factual matter and council would agree that it's number twenty third two thousand and ten there was a stipulated accident there's been no other evidence than supplied by the petitioner that when he had that accident pulling down the door of the truck delivery truck that the pain that he felt his neck and his shoulder was worse than he had ever felt before the commission was also aware that immediately thereafter i believe the next day this gentleman did have to go off work because he was given restrictions by the respondents occupational clinic and you're also well aware of the fact that it is the company's unrebutted position that if you have any restriction you cannot come work for us period there is no light duty the company's places this gentleman over to doctor so leahy and you're a neurosurgeon there is a ridiculous or component that this gentleman has documented now at c five c six so there is a quantitative change from g that occurred at that at the time of his the opportunity to examine the petitioner the one that he wrote right before the trial when dr klein black said that well this is obviously not a surgical lesion because if it were there would be better it is ridiculous if you look report he doesn't mention the energy in there drop and he did not have the relevant medical and that is one of the major reasons that the commission found that doctors indirect was the most credible medical opinion in this case what's your mit and what i'm saying is that the commission was right in saying that this man has not been the dismay and needs to have surgery will here here look good liz let's try and divide these two things up beat they didn't use the term and that my until march twenty fifth at the time of another report that he never examined the petitioner for that there is no in my mind this gentleman doesn't need the surgical procedure so at the time that doctors prior to september twenty third two thousand so dr campbell is now saying take it easy go back to work there's a problem going on here however i think you're right in my mind and it was only a temporary exacerbation it makes no evidence proved the facts in this film and says three level fusion that is there could be that is what they're charged to do there is not only sufficient evidence to sustain that but i would submit to you that it is the only true