condition and how we know that is two ways we know in the award for permanent c b preexist see the preexisting condition was specifically referenced as the reason for the reduction in the award also all the decision to the first paragraph isn't titled preexisting condition as though it's the findings of fact and then beyond that are the specific conclusions with respect to medical temporary total disability and permanent scene so our position is that that essentially tainted the entire decision and we believe that that decision since it otherwise runs counter to the manifest weight of the evidence that it was rendered with this idea that there's a preexisting condition and we have to lighten the decision somewhat and that's why they reduce the t v they've reduced the medical they reduction of permits because truly if they believe that this was as dr wiener said a temporary aggravation and the worker when back to baseline following this artificial date of october fifth two thousand  then there should have been no permanency work whatsoever if that's the consistent award rather they did award permanent seat they don't even believe that was just simply temporary aggravation bait understand it was a permanent aggravation he says the success of treatment there misapplication of law was erroneous as a matter of law will we see a lot of the elements in manifestly cases creatively try to turn it into did noble reviews this morning we had a repetitive truong where there was a claim of requir in this case there is no question in that case i was arguing that it must be inferred and that is you give anything here that there's a difference in this case this case they told us why they reduced the award they made it clear it's because of easy glean from the evidence that they simply determined what he was entitle to based upon a short term measure of age it's it's not as though they didn't tell us it's not as though we look at them we look at other portions of exactly what they did here i even believe it was a twenty two percent twenty two and a half percent loss you see on the whole they didn't apply they didn't say twelve and a half your intent here what they said is we're going to reduce it because some aspect of this injury is non work related and some aspect  it's once causation has been determined once it's been determined that the accident otherwise aggravated the preexisting condition the the fact that a creep sixteen condition existed is irrelevant for the award of permanen and so while in our brief we argue that the decision runs counter to the manifest way that being the petitioner was off from it's not as though from october fifth two thousand and nine he went back to work see shredding for a period of time went back to baseline and then resume treatment he kept treating he kept treating until the next year when he was released by his own treating doctor her pinion as far as i'm concerned is stale by that point and runs counter to what actually occurred her prediction of what there was excessive disability there were successive pain complaints the pain complaints that in season on october sixth two thousand and nine they continued and i understand that the section twelve examiners would like to ignore that and somehow explain it and point the finger at something else but there's nothing to point the finger at other i suppose other than i suppose duck childhood meningitis which is even the commission didn't pick up on it so we believe that this this notion that the commission used the wrong legal standard focused on the pieces thing condition in rendering the support group but in rendering this decision it is especially  apparent when you look at that the only reason they denied benefits here the only reason was dr wieners report and those in the you know the following reports that here dr wiener there's nothing else there's a bit like i said they didn't pick up on the on the meningitis they didn't they didn't they don't believe that that's what now accounts for the for the current condition for that reason if there's no other questions we would respectfully request that the arbitrator's decision woll and that the commission did not apply in a long legal standard the first thing i'd like to address is we submit that the plaintiff actually waived any issue of law argument which is based upon improper and apportionment this is being raised for the first time now here in the appellate court it was not raised in the circuit court my understanding is that a new argument raised for the first time which directly conflicts with the legal theory present of below should not even be considered in its circuit court brief the plaintiff wrote quote the plaintiff agrees that the award of ten percent loss of use of the person as a whole was inadequate given the diagnostic findings period of temporary total disability and extent of medical treatment so the plaintiff actually argued several months ago in favor of this ten percent p p award reasoning that because the claimant in fact sustained a p p award as high as ten percent that the other issues the medical bills and the t t awarded should be commensurately raised to be equivalent to that ten percent which was suggested to be substantial they didn't argue at the time that ten percent was any type  amount for an aggravation on top of a preexisting amount only that the temper sent is the full extent of the disability but that's not what they're arguing here at all is the complete opposite the previous position was that there wasn't because it was that there was no significant preexisting condition and that the claimant was actually back to back to work full time for several months and that he was not treating that's my understanding of their position as of the plaintiff prior to the work accident that's not what they're saying now and in fact if that were true that is preexisting condition bennett the preexisting condition should actually be irrelevant and it should be said to be zero and there should be no apportionment discussion whatsoever so it's hard to  reconcile these completely contrary positions that are now here before you compare to the arguments that raise below and i think in this case unlike in the fits back pattern  the defendant here has not ever waived its own waiver claim we've asserted in our brief when it became apparent that they were going to argue this brand new theory and we have not had in fact waived a waiver claim so we don't think that any type of apportionment argument should even be considered for the first time here on appeal nonetheless without waiving our own we have a claim we would submit that the commission in fact did not even apportion the current disability to to any preexisting condition there is no specific of an innocent the commission decision that they performed any type of arithmetic apportionment operation in reaching their permanency award of ten percent loss of the person there's no evidence that the commission felt that the current state of permanent disability were garbus of whether it preexists of the accident or not what's at the twenty two and a half percent level which has been suggested they never talked about that there's just no evidence whatsoever apportionment the award of ten percent loss of the person in the hole is really the full nature and extent of the claimants are going to partial disability and that's what they intended and that ten percent amount as indicated on some of your questions was reached based upon their review of the treatment the diagnostic objective testing and the multiple opinions from dr wayne or dr feder and dr graff all four certified orthopedic surgeons it would be illogical those opinions in first say well this is a twenty two and a half percent case and now we're going to bring it down now that was never their intention and it was never expressed anywhere in their opinion this case is also different than fitz besides the waiver issue because in fits the commission found a temporary aggravation of a preexisting condition yet they still awarded twenty two and a half percent losses from a partial disability now it's clear under the law that you cannot have those two things you cannot have a finding of only a temporary aggravation because that is inconsistent and contrary to the wording prominent partial disability so on its face that decision was wrong and it needed to be remanded simply and that here we don't have a finding  temporary aggravation but we have a specific finding in the language of the commission of a permanent aggravation they did not this commission did not commit the error that the fit's commission did and in fact we can say that they found in favor of the claimant and against the defendant on that issue finding a permanent and not a temporary appropriation and therefore entitling him to the full measure of his p p d which is ten percent and this is the amount of course which the claimant previously agreed with was fair and representative if they had found this to be a temporary as a matter of law and that the commission did not apply the long legal standard this this seems to me to be an attempt to piggyback the t t d and the medical bill of the ducks you know to the same type of reasoning that  different doctors persuasive there was an alleged lack of rationale for the commission finding that the three defendant doctors were persuasive and therefore the decision must have been exclusively based on the preexisting condition well well that's not accurate at all but the rationale is multi faceted and the fact that we have three separate board certified or three predicts surgeons who are all consistent which he thought each other in a different points in time there was that there is an indication that  dr winners opinions all of these doctors were saying the claimant was at maximum medical proof meant as of october five of two thousand and nine and that any subsequent medical treatment was not reasonable or necessary all three board certified orthopedic surgeons were saying that the climate was capable full duty as of october five two thousand and nine their opinions went in under budget i would also add that  think it's page two of the commission decision the point was made regarding the the underlying section title preexisting condition as though everything that followed after that represented the entirety of a  big long discussion based only on preexisting condition however if you actually read that you'll see that most of the first three sentences are our discussion of preexisting condition and everything after that you tire rush of the pages is the same conclusion all three of them discussed the pre and post accident m r i eyes which they consider to be essentially the same and therefore what's important about that i  think is that if if the petitioner accident was able to work full duty and not treat and was asymptomatic for a period of months as alleged with the same m r i findings then we contain sufficient findings that would permit the court to review the decision and it should be affirmed again this is an argument not raised below and it shouldn't be considered now for the first time on appeal it seems to be again based on the no objective support the commission pointed out from any of the three or viewing physicians for continuing lumbar complaints none of them found any enter melody's presence in the m r i to justify additional treatment or disability it seems that the plaintiff is kind of setting an unreasonable standard here and saying well they did not produce essentially a perfect decision or a sufficient findings and they're setting in on a reasonable standard regarding what their rationale and how well it should be explained when one here we have a point if it had the opportunity but not a bill itself to cross examine these doctors over their reports in their opinions and perhaps help the commission help at the problem of reasons why it should not find these opinions credible or should find them that credible all had to work with or the actual reports thought it's not a summary adoption of a pretty disc preexisting condition paradigm it contains an abundance of findings which would permit the appellate court to review the decision and it should be  firm which leads us to the manifest weight argument i think it's kind of a hybrid year but we've touched upon so many of the things we have there are there are instances where the  credibility and i know that the commission decision to not specifically highlight those but if you want to review this for a manifest way to the evidence say i invite you to to look at some of these things the the claimant testified that he could not have complained to dr graph of left sided pain since he had paralysis on the left side of his body and he has no sensation and he feels nothing on the left side of his body that was his trial testimony yet the medical records show that on the date of the accident july eleventh two thousand and nine he had left shoulder pain left elbow pain left hand pain that it sounds to me like somebody that can feel left sided pain he also at trial testified that his only part of the back treatment of low back complaints were from an auto accident december thirtieth two thousand and eight and that he only missed a week from work as a result of that but the records that were introduced into evidence show that he had significant back problems going back to two thousand and seven prior to the car accident and that he missed probably in the neighborhood of eight weeks rather than one week which he testified to so we have we also have the again these two pretty accident longarm arise which are very similar if not the same finding as has the post accident m r i so again if we have an individual who's not treating and he's able to work full duty with those kinds of m r i findings before the accident how can they possibly provide support for disability and for the medical treatment after the accident what the commission has relied upon is three board certified orthopedic this needs to be compared to dr montel he labeled claim in his prominently totally disabled based on essentially an m r i showing a preexisting bulging disc it's not evident at all that he was aware of any of the prior treatment or any of the prior suspicious in support of the off duty or the t t c on the one hand we only have sporadic off work or late duty authorization from chiropractor practitioners or doctor my tele document tell a head to form a series of unsuccessful injections and then his his fifty thousand dollars decompression disco gram which didn't help the petitioner petitioner testify that if one of the tests is did the did the treatment provide relief and therefore it was reasonable necessary in this instance we have the petitioners testimony that no no it didn't circuit court level we conceded that the ten percent loss of use of man as a whole was not against a man if it's weight of the evidence and we maintain that position in that in the manifest weight under the under  that from that perspective it's not against manifest weight we're we're willing to acknowledge that what we're saying is that the award the basis for the award was erroneous as a matter of law it states in the paragraph in which there are over forty  i'm not going to read this to this court but it states that that's the reason for the reduction and it was also mentioned that since we did not bring this argument up standard review argument up at the circuit court level that that's been waived or there's some type of forfeiture again i'm as i stated in my brief i don't think i think that this this court is able to review the is since this court is reviewing the entire record i think everything must be reviewed all legal arguments must be reviewed especially when you're talking about an error as a matter of law and i think that that don't think prior arguments with respect to manifest weight of the evidence was inconsistent necessarily with with my argument or argument regarding the application of the wrong legal standard of the consistency that in about itself so as long as you are going before us is consistent with some argument that you meet will hold you haven't we those who are no no justice often i don't believe that i mean i think the question was and to review the entire record i think that that is that is the standard the standard of review is obviously something that can be brought up before you the first time and  the for the current condition and twelve and a half for the prior that this is an abortion and the fix case is the one that calls it a portion i mean i don't know what to call it but what i know is what they did in this case is exactly what they did in fit the supreme court term in that that was erroneous as a matter of law i think the cases are done  i don't think it could be ignored like i said before that the existence of craig's list in condition is in that character i mean i think that that's that's that's pretty convincing that that's what they were relying on reiterated exactly what she said didn't somehow revive her opinions and make them current they were still like dennet with what she said in october two thousand and nine that program five two thousand and nine was a significant date a date of m m r and those two subsequent doctors agree with that they added nothing new their physical findings were almost identical everything was identical come some mention to him arise were identical and i would submit and i mention in our brief that this case goes beyond the be identical m r i take it is about the condition back caused disability from october fifth and there on the temporary total disability that lastly again the meningitis was brought up again and i just want to remind you that the men the meningitis the symptoms regarding meningitis didn't magically appear on october sixth two thousand and nine they were there the patricia wasn't treating