then looked at my brief from the commission decision and page four of the commission decision was missing and my brief took up the right from the record my weapon check the record and it's not there so with the help of only your very percs they suggested they get a motion on file bring extra copies today i called counsel yesterday i don't believe you have any objection i did mail a motion to the court to supplement the record basically for the entire christmas isn't it really what it does it at  when i say you get a great feeling when you're preparing your arguments you realize something like that has happened i can't tell you how wonderful it is i represent mr damas out he's a forty five year old railroad yard work very worked there two years good attendance worked overtime  to washington services chemical railroad cars and they basically push and pull these cars with something like half of a diesel engine that by the record goes for miles an hour or so my client had prior back problems  medical i think it's a fair assessment to say the overarching issues here in this case before the commission was to claimants credibility i mean did i think it's clear from the commission's decision they clearly had a problem with the credibility  of your client particularly with regard to the issues please present that read up this is on the fact that when he was asked by the supervisors whether he had he worked with it injury he said no so how do you get really much the same case i mean i think the commission had a problem with credibility because of something that my post in council did which in order to win the case was probably a smart thing but i really don't know how  intoxication i don't condone the use of that but what by the time the two witnesses were done it was very clear that my client was not under the influence of anything it was acting completely normal and the system which occurred which was a major accident  rare occurrence moving about four miles an hour he lands on some rocks he doesn't fall but he says it felt like a jolt or a speed bump i think is correctly quoting the record right and he said he also said if somebody asked me at that time if i was hurt i would have said no because i've had back pain before i didn't i don't know for records of this but he didn't feel anything new or different at that time this conversation that the commission graph i'm happen within a half hour do think i agree with you out of the commission didn't give my guy a lot of credibility but i don't think my guy did anything to deserve that not wanting to find credibility other than like i said probably should not have inhale medical records only in central and white citing a complaint with a generalized ball which is what the radius radiologist found at the hospital that while you can have that you have testimony because when he testifies at trial he testifies oh i i couldn't see the other guy because he's on my blind side but i knew he was on the ground because he radioed me and that's the one time i heard him talk about it turns out on the witness statement and we were there for this he said it was the day of the accident but it turns out it was three weeks after but i understand discrepancies between one day and three weeks when he gave a witness statement that's not fatal to a witness his credibility but i think this is when he hits the stand says i know he was he was doing this because my sources i heard him on the radio but three weeks after the accident he says i supervise arrest lewis was notified immediately i heard jean explain to lance that after he hooked up to make out he was walking by i it as i was pushing it up he's making it odd i mean you have one source or another he said there was only one source and there died in the prickly oppose and that's why the commission said at the end of their decision and it's a nine pages section and only the last two paragraphs deal with the commission's findings the first thing they say is we're going to decide this based on the sequence of the path and that's not even a proper legal analysis that's an office chain of events or medical causation but then when they go into what the sequence of events  rod they don't talk about rather incredible and they don't say we believe broderick that's not what they decided because he wasn't credible i think any reasonable finder of fact would find a man that tells them completely opposite stories under oath on the witness stand vs what he writes three weeks and one material issue on which the gentleman testified medical i think was credible and the fact that th the evidence is clear i think in terms of yeah he told the save to die within half an hour or i wasn't heard he said i didn't think i was hurt that it was very common back injuries that you wake up the next morning and that's when you kno problem i mean if if this were a person that never went to iraq or railcar for it might be significant that you jumped off a four mile an hour car that's what these people do all day though i mean everything i think in terms of reasonableness recently when france is you have to take in context i think was is one person that said well he radioed me and then but earlier he says well actually i overheard him tell somebody else this so that person that playbook then you have the safety guy and i'm not doubting that he may have asked him within the half hour we heard or not didn't have to say that the guy jumped again on even reported medical context i think the thing is there is no other reasonable explanation for how that this got larger he got a guy he's working  court justices mr bach and opposing counsel has done a very good job of trying to confuse the issues the main issue here is was the decision of the commission against the manifest way to be evidence in his brief he alluded to the fact that the sequence of events reasoning by the commission changes the standard of review from manifest weight to the no i think it's clear what's been argued that it doesn't it's again it's was the decision of the commission against the mattress with evidence and what do we look  determine if we look to see was there any evidence in the record or in the testimony to support that decision clearly there was when you try a case before the commission on an issue of accident and cause a connection you first look to see was there an accident that's the first prong if you don't get past the first prong all other issues are moot the petitioner did not get back get past the first prong and how did the commission know that they look to what happened on the day of the accident that's what everybody does right what did the petitioner report what did he write in his own statement were there any witnesses that can corroborate what he said what did he tell his supervisor that's the most important hypothetical assumption that he actually jumped he hadn't had an m r i between december fifteenth two thousand and eight and april sixth two thousand and ten that's a year in eight months he could have had any complaints between them and any diagnostic tests i think it's safe to say that you know if petitioners disk had been excessively larger find it was only a little tiny bit larger he had just dehydration which you can see from the m r i from december fifteenth two thousand it showing that  dehydrated so you know dr goldberg's opinion is based upon the fact that an accident actually happened and here we know it didn't you look at what he told mr roger the person that's with him the same day and now who has no control over whether he's going to be hired or fired or whether anything is going to happen because the derailment is someone that works at them it's a coworker he's concerned about him he says you know i'm on the ground pushed the rail car back all the sudden you know he's saying it's  to the safety supervisor he says are you ok are you hurt was there any property damage no i'm not hurt no there's no property damage ok we have to fill up paperwork now they felt the supervisor safety report again he says are you hurt was there any property damage to which he says now that he's given his own opportunity to fill out his own witness statement he never once says in the witness statement i jumped from a moving rail car in fact  and he never said he was hurt if counsel want to say ok he didn't have complains of pain and so you know a couple days later or the next day fine but why didn't he put in any of those records or testify to any of those people that he jumped  it's like leaving the miranda rights out of here off of a police officer statement is the most important thing about the story i jumped from a moving real car that should be noted but also noted is that he didn't seek treatment until after was terminated that says something that's another thing that the court looks at ok what do you tell your employer this is what you told your lawyer this is what you told the witness these are the reports you felt up ok now the accidents over what to do next when's the next time when you see treatment if you see the same day you know even though he told all of his doctors i had media onset of my back pain felt like a shot going through my body like a car hitting a speed bump yet you'll notice on page fifty one of the times you were asked and you had the opportunity to fill it out yourself and you never said that you jumped from a wheel car or that you had an accident there's overwhelming evidence that there was no accident that never and started pushing it to the building i make so he says we hooked up to the car and started pushing it doesn't sound like he's walking on the side to the building and my countdown for cars three and two cars count down the driver down that's when they came unhooked by itself and i think they dispute about that mr mr roderick confirmed that so couple things council said he couldn't get in the radio out of his pocket the radio wasn't in his pocket he was talking to the guy on the radio a referred to that was actually at the lower level if you look at the m r i that was all five us one and for the doctor go report problem level he has zero four zero five as far as i'm telling multiple people he's fine this is all within the first half hour we don't d context that's in the first half hour he wakes up the next morning with the problems and he doesn't tell the doctors until the media paying his mere fact if you look at the first doctor's record she's masood who's the general practitioner who still does have a license  he said to give away paying actually start happening the day before we saw him which had been roughly march ninth but the ridiculous are paid on the same topic which started the day after this happened so i think you have a case that you might call it medical evidence but in my book evidence is evidence it corroborates that he had an accident that just didn't move itself and it was doing something was supposed to be doing at a time he supposed to be doing it and i think the opposite result is clearly evident which is what manifest