appeal the commission's decision in for making three points that out quickly summarize in just a minute and depending on the points we're using either a standard of review of either against the manifest w understand the case you totally left out of your statement of facts any reference to her earlier accident in one thousand and ninety eight you left out of your statement of facts any statement relating to the m r i ever spine taken in october of two thousand you totally left out of your statement of facts dr korn that causation opinion  you left out of your statement of facts that raman cidco testified and she testified that he's the one she reported to you do you understand supreme court ruled to mean you only said for th facts are favorable you know no you're out of course not i and i apologize i didn't realize i had left these things out i know we were taught your own and supplied them for you so fortunately we had a full statement now i understand the night and particularly with the medical records i know that eventually those prior injuries were discussed at length because that part of the issue in the cases we've discussed in the argument but don't you think we should summary are that st that there was evidence in the record that in many ways the commission overlooked that allowed for  destruction and they're in and their custom was to destroy records after a certain amount of time we don't necessarily need to know if there was a record if there was enough evidence to show that they followed a custom of records you gotta prove it exists st and they didn't find your client credible so the only evidence in this record that there ever was that's record is the testimony of your client who was found not to stabbed was that the record exists well i would just point out about cit co that he didn't deny that she filled this out he just said he couldn't recall the source and they found her incredible they found her incredible i think they did that though wow overlooking other evidence that i'm going to get to and also imagining things about her that is in line with finding her incredible and i think that's an abuse of discretion in  certain situations are we going to be the question's going to ask you counsel how do we overlook the finding that he was not a credible witness by the arbitrator which was adopted by the commission how do we substitute our judgment for the commission and credibility how do we just ignore that well of course that i think i think the way we look at it is we look at the record and the things that are missing there there were certain things missing such as she testified that she fidel and d and of course u p s didn't produce anyone to say whether or not there was fidel that wasn't really looked to by the commission but i think it was it was it just hung out there without being properly addressed same with this u p s nurse in u p s has control over its own nurses it seems to me that if she saw u p s nurse at her st visit why why should we just forget about that when to keep her business card well as well as the question she said she was tikkun by citgo to a facility that night she couldn't remember the name of the facility did know what city it was him and didn't produce any records of the tree is that true that's true but i would i would add to that your honor that the commission went beyond that and said that she's not credible not believable because she couldn't remember the address of this clinic when you can have a car i'm sorry could even have the city it was him he doesn't have a car she drives by bus to northbrook from chicago every day how how and them in the end at night after she's entered is it so hard to believe that she couldn't remember the route she's never been to north for work it seems to me that i can't put my mom my i can't jump into or shoes but clearly you clearly the commission did because they found her not credible because she couldn't remember this consul aside from a credibility issue let's talk about the medical evidence a little bit dr corba testified that the claimant was symptomatic because she had degenerative disc disease and that was not caused by the incident in question there's no question that she had a history of back problems and ha sustained a very acute serious injury to her back some years earlier correct correct what i saw in corba testified that it was not work related so what was wrong was on bet's opinion well this is the right way plumbing case that was misapplied by the commission i mean there is such a thing and you all know there is such a thing as an aggravation of a preexisting condition we don't have to even consider all these prior injuries or accidents if she reentered herself her last injury was in twenty thousand and forty two years before this it wasn't as if she was treating in the weeks prior to this accident this was something new so yes she had this preexisting condition it was aggravated by lifting  saying that this was simply caused by degenerative disk disease through work incident was not a causal factor at all well and obviously i disagree because of dr nolan's testimony  recognize that the m r i may have at similar findings before and after but the x rays have different findings and i think the commission overlooked that the x rays showed that she had an l five s one disk that was flared  with a with an x ray before the accident compared to an x ray after use a radiological findings i know that u p s would like to call them psychological findings or complaints but they were found in the diagnosis six so did least be some reference in some medical records of the loans back injury and i think i heard and i think your honor i think your honour's overlooking the dr plus terrorist note from i think it's november six of two thousand and six which is about one month after the october two thousand and six accident and specifically she's got pain ten out of ten in her back and i know that there's an issue about whether there's a true direct accident history in that note but she is complaining of low back pain and then later that the accident histories do pick up in two thousand and ten and i think that provides further corroboration even though the commission thinks that they're too late to provide corroboration of an accident  six i would like to mention because i just i these are the things that didn't make sense to me when i read the commission's decision the commission this the commission made out certain things that i that i think we just had there was no evidence in the record that they should have been considering the commission thought it was unbelievable for example that miss major could climb stairs after an accident like this  she did say that she had paralyzing pain and the arbitrator and then by adoption the commission thought it is unbelievable that she would get up and walk up the stairs she should have just laid down at that point and they have no medical basis to give that information likewise they didn't believe her when she didn't know the address of the u p s clinic i know many many of the rest of us would  pay attention to it but it doesn't mean that necessarily since she doesn't own a car she just she takes a bus every day to work she hasn't taken a tour of northbrook or wherever it was she went to know the address of the the clinic think that she's not credible because she's unable to climb stairs particularly when there's later information from this eighty accommodation for her shoulder and related that she could climb i mean there was evidence that she could she could do question what is the very st medical record in front of us that was introduced then states then she told her medical provider that her loader and that there was a six hundred and fifty dollars to sixty dollars pound box and we feel that there can be an inference and there should be an inference that that was you know not because of a car accident but because of a work act after that it picks up y please the court let me just begin by discussing the over arching picture that is presented to you by the record of the plaintiff as we've discussed this morning st entered her back in twelve or thirteen years later she has fine surgery with dr mark knowlton and i think a lot of two thousand and eleven and this twelve or thirteen year time span is consistent with a natural progression of an underlying disc disease process and that is supported by our section twelve physician d nischelle filed application alleged tobar one of two thousand and six the st day of the month then years later when she's weeks away from trial she amends  the next problem with the plaintiff's case is the medical records are in conflict and contra contradict her trial testimony this is not a case where the records are silent it's a case where the records actually contradict her testimony the reference to being a u p s loader was not the accident history bet was wrote in response to a question of what makes it worse she wrote walking bending and lifting things at work that is correct your honor and the commission was made aware of that they looked at that it's my position that experiencing a manifestation of pain while uncaged in physical activity is not the equivalent of a compensable work related accident you could have pain anytime anywhere and i believe the case law supports the notion that the mere manifestation of pain while you're at work does mean that you've had an injury that's compensable network doesn't arise out of on the course of just because you have worked there and started because you're at work when you feel the pain if you respond to opposing counsel's argument that this was an  and i disagree with mr isolated by the x rays and the imaging to not show any acute findings whatsoever there was no evidence of any structural change dr plus stairs ordered a new before she says dr post arest nov sept and then after she completes therapy and stops treatment in march of seven doesn't go back to a doctor of her back until may of two thousand and ten december two thousand and seven and that was the injury that we noted as properly and duly reported we accepted a shoulder injury as compensable we paid medical benefits we pay t t benefits and then two conflicting medical opinion evidence there's our doctor dr complex there's the plaintiff's medical witness dr milton and his the role and function of the commission to weigh the credibility o conflicting medical opinions into weigh the conflicting accident records and determine which narrative was credible and it's my position that she failed to sustain her  jacqueline eater testified that she paid for her daughter's medical expenses she paid for prescription medications she paid for co payments she also testified she paid the what i call the cobra payments rightfully could consider in this case and then rd and last the last strike was that she was testifying to a phone conversation that was had taken place over a decade before she took the witness stand she never testified to a date or time or gave surrounding circumstances was conversation in the year never passed from out the year two thousand and six was in a leading question by mr isley now was the mom testifying falsely because of her love for her daughter perhaps it's also possible that she was mistaken and mis remembering the conversation how did it come to pass that we were even aware of the appointment and who the doctor was and where to go there's no business card no name or description also u p s doesn't employee nurses insurance companies employ it's just incredible bennett a u p s nurse would be at this visit there would have have to have been a process to get her consent to show up and there's no paperwork and that finally there's hipaa privacy testified to this on her truck examination when the case went to trial and ybor all of two thousand and seventeen she made no mention of this purported u p s nurses it whatsoever was only three months later in june when she decides you want to testify e all in all those cute looking evidence conflicting evidence between her testimony and medical records conflicting medical opinion tells me about the doctors and it was the commission's wrong function to weigh and balance the evidence and they ruled against her found that she failed to prove an accident and therefore it's my position and i ask this court to affirm and uphold the circuit court's decision  she saw u k s nurse at her st appointment in a lawsuit against u b s unless she was telling the truth i mean u p s has the control over the nurse not ups i maybe it's not a nurse you know a nurse employee from u b s but they still have the control over their case managers like this nurse and it seems to me there could have been some kind of pushback but there impairment of her mother just because she's a mother does that mean that all mothers who testify against their children are with them for their children their testimony is impaired or all children who testified for their mothers their testimony is impaired  and just because you couldn't remember the exact date of the of the of the accident ten years before it seems actually pretty understandable that it's been that long also u p s wants us to come up with corroboration for the mother not just her mother's testimony but corroboration for that testimony dates times circumstances when she was speaking maybe even the telephone  bill i mean that's not required of the a witness not unless there's some kind of republic or inconsistent evidence against her so i i think the cases are pretty clear the commission even has the right to reject unconquered money if they find the witness not credible yes and i agree with you i i feel that that there's certain points with her testimony that you p s are now u p s the commission took up to make her not credible but i i disagree with but but beyond her testimony i'd like to point out that our amending the application is a right that the missioner has to do right up through the day of trial and it doesn't indicate some malevolent motive if we change a date on the application it could mean that we want to make it consistent with the records and in fact that's what we did in this case so for that to be a factor against eight or that which would be found against her i think is is a wrong factor to look at and also didn't paper her case with records she did spend years and years treating she went back to work and she went to a doctor to get well and when she felt well she stopped seeing a doctor she picked it up in two thousand and ten when she started feeling bad again and evidently it was bad enough that she needed surgery to her back so i again i  should give her some kind of motive that that she did wasn't treating because she wasn't injured i think is wrong likewise her continuing to work full duty i  think it was something she was doing in good faith because she knew she wanted to work your honor as i i would ask that the circuit court order be the confirm the decision be reversed  commission's decision also be reversed on the issues of accident causation and that it be remanded to the commission for an award of t t t medical and permanency and also that this  has the same injury thank you thank you counsel no matter this morning