material again so it's been a brave years i realize something about my own nature and looking at these cases and i fall prey to kind of a callousness of looking at the medical and being very distance from what actually happened in terms of the treatment for the injured party and i know the court sees a lot of appeals and you see a lot of not of evidence and it can be overwhelming and when i look back at the record here i just want to emphasize that nowhere within this worker's compensation claim was there ever any real dispute about the nature and the extent of this gentleman is injuries he had lifted the christmas tree at work and sustained an a and my crew disconnected me now immediately after his injury he complained of low back and left and right hand that left leg pain never abated throughout the entire history up until the time of trial and continue and you're right i don't think that that was really disputed didn't this case really turned up with the surveillance video that caused dr goldberg to change his opinion as to why he would get breached for the actual medical improvement  it's subjective as they might be from that videotape but that doesn't invalidate the opinions that he held in april of two thousand and six when he examined the petitioner when he examined the petitioner at that time he said he's got  five s one diminished sensation he's got l five s one active and the doctor's words severe ridiculous to think well he may have impeached themself but didn't he sort of say yeah i saw these diagnostic tests but they did not conclusively establish objective we all of these problems that the label was relating i was sort of basing it is subjective expressions to me and now i have a real problem with his credibility the sort of saying i don't think he's saying the first part of that which is i am not basing my opinions on the diagnostics he looked at the m r i see look at the in g s he looked at the mild grams of the c t scans he had looked at all the diagnostics and based upon that he c younger four physicians the two pain physicians and the two neurosurgeons that operated on this gentleman that he needed a spinal cord stimulator and should be off of work you're right subsequent to that he sees this videotape i negative when we prove a negative show us the video i don't have the video tape i never put my hands on a video tape i never saw played at trial and if you look at the commission's decision it's absolutely scant and any mention of  cross examination wasn't during surveillance he was observed sitting at a baseball game he wasn't listening he was walking without any difficulty seen closing the trunk of the car he entered into the driver's seat without difficulty i did not see any facial grimace he won he was walking he was walking without a whimper he was observed lifting the trunk of the car acapulco bridges the only one that saw the video this gentleman was at a basketball game this gentleman to build his vehicle gas station and he was shopping earlier based upon what i saw when i am and what i saw on the video is inconsistent with the complaints that he made when he was in my office would have been through was listening he wasn't listening what happened to his ridiculous he that the doctor objectively in his girl logical examination says was there on april two thousand and six the same day as the video by the way what happened to the diminished sensation  side he turns one so i sort of this video there was no more listening he wasn't eighteen and he was doing all sorts of stuff in the n b a and based on the i've changed my opinion so this gentleman is fusion this gentleman's ongoing life well back in left like pain it's been documented it's been diagnostically objectively and where you're over forty percent of a man is all when this gentleman gets to that point in april may of two thousand and six he's already asked for job accommodation he has to go back to work with those restrictions he's asked for books he's asked for maintenance he's even asked for a functional capacity evaluation all of which this insurance company has the nine despite his inability to go back and do what he did before so in the light of that the doctor's going to look at the videotape and say we're through with this joan no more benefits goldberg openminded reach maximum medical improvement he couldn't he could return to his previous work based upon what he saw him credibility terminations that that was ok because you have given up and given us nothing for us to determine that the video contradicts goldberg's opinion because it's not evidence well the only evidence that would exist would be my cross examination of  soon it was done at that time at the circuit court before judge toner fair and after i saw it yes i did see it but the point is that any perceived defect that there was on my part was and i submit if you look at the medical testimony this gentleman continued to have to go back and left like paying he did not have any additional back problem he was on methadone up until the point in time where he went and found another job on his own he was treating with all suddenly felt severe ridiculous or not like pain this is a bogus situation you don't have a new accident that breaks the chain of causation we don't have a new injury whatsoever we don't even have a traumatic event all we had is the retool disability benefits and temporary partial disability benefits as well as in light of the court's ruling on the issue of the aggravation in two thousand and seven i think the was the evidence on which the arbitrator commission and ultimately the circuit court relied on sufficient to sustain their decision we don't thoroughly baptise what the commission relied on and it is a court of pals already observed the videotape seems to be a central issue in this matter or central piece of evidence well it does and i think we've put what extensively obviously based on the video goldberg later modified his opinion that's not in dispute his response is i think it's fair argument well according to goldberg doesn't show anything that would rise to the level of any unusual physical exertion consist in what was testified to by this condition so how do you respond to that i think there's a couple points five may first of all it is not only  videotape that i would suggest motivated gore got to go borger changes position and during the examination he looked at some x rays and mild grams it indicated that the fusion was completely hilde if there was no evidence of compression nerve compression but there was no muscle atrophy which is a symptom of nerve compression and there were no spinal cord abnormalities that being said dr goldberg testified that he relies a lot word to a significant amount on what the patient tells the patient tells him that i am suffering severe lower back pain th into my way and he observes a patient who can sit still because he has to shift to avoid nerve pain has difficulty getting on to  examination table walks with a limp and then see the videotape totally inconsistent i don't think the question it has anything to do with whether what is observed on the tape is within or outside of the petitioners were restrictions i think it has everything to do with the pain presentation and the analysis or what that infers to a doctor in terms of whether this patient can go back to work as a bank employee whether this patient has reached him in line from his back sure juries or whether this patient needs a back if he's not suffering from back pain as he represented in his examination when dr goldberg and otherwise can go back to work as a bank employee he can go back to work as a bank  petitioners treating physicians and then change his mind based on what he saw on that tape i think that lends a tremendous amount of credibility when the arbitrator explains the reason why and i took a quick check and i believe in the arbitrator's decision he references viewing the tape as all to answer just as hopping your implied question of counsel it appears he had viewed the ta e so i think it's it's not a question so much as kerry do all of these things on the tape when it is restrictions it's requestion of what did these for it what does it take tell you about his presentation and what does examination which we testified to i believe that is that is correct so i mean that's i think that says it all without saying he's unwilling or without saying he's misrepresenting anything i think that says everything that needs to be said about his position and i believe that the arbitrator commission and ultimately the circuit court were proper to rely on dr goldberg's opinions his findings as well as the good likelihood of increasing your your compensation through rehabilitation and a good chance of getting a job i think we don't even necessarily get to the analysis because there is no evidence that any loss in earning capacity was proven by the petitioner when he is released to go back to work at his job at the bank so on several levels first of all we don't see a loss of earning capacity second of all there is no loss of the ascii good use of the job so i believe that the issue in terms of not only the rehabilitation but the necessary maintenance benefits that would actually do it i believe the commission was appropriate in denying those benefits i think the intervening causes is an interesting concept of nless the court has additional questions for mayor thank you thank you very much free time the fact that the petitioner reached and now mine doesn't preclude him from having medical treatment and problems in the future that need to be addressed we go from a fundamental leap of this gentleman having two surgeries not being able to get back to work the respondent not taking him back to his position as a personal banker not even affording him the capacity evaluation to give us an objective measure is that what he's capable of doing and they do a one two punch on him they set him up for nine we would shit in it no problem but they know he's going to be down there in the sort of the video camera all they have to rely upon here is that surveillance video in the opinions of dr left leg pain never want to weigh despite the opinions of dr goldberg and looking at the videotape medical evidence should trump this videotape particularly when dr goldberg takes no issue with any  objective diagnostic tests the last issue that i wanted to comment on was an issue raised with the testimony of the claims rep who testified here the period of medical that the commission awarded was modified on the review but they did not award the roughly fourteen fifty thousand dollars in medical treatment that was written off my contractual loss the claims rep testified she had no idea if there was any contractual justin that was attractive between the provider and offs that was through the worker's comp that was the workers got was on a third party and it was an employer's was an employee of the ok and so i put the question to the claim rep are there any contractual law and says is there any contract that would support this right off and reduction for on the bill they don't show zero even if we take the contractual right off even if we take that balance it still shows will for those amounts to one owing on the can we did did did did you get an award for the balance shown on most bills yes