counsel my name is heather calvert and i represent the appellant in this case miss elizabeth grey gentlemen this is a case involving an undisputed work accident that resulted in  injuries to miss ray which included her lower back her cervical region and her aside joint breeze region the treatment ultimately resulted in the surgical recommendation the employer in this matter argue subsequent fall occurring approximately seven months later was an intervening accident that thereby broke the chain of causation this case was arbitrated causal connection between the accident and the recommended surgery didn't have any experience with a site joint treatment whatsoever dr koop he's credentials are that he has performed several as high joint fusions that he has a pioneer and progressive treatment that's a joint fusion so i believe that of the mission most of rejected those opinions of the employers doctors that said there was no preservation at all that's correct your honor and the issue on appeal and what we're here for today is whether or not an interview i mean what i'm trying to determine is what words they're competing medical opinions about there were competing medical opinions about causation at all with the commission must be rejected the employer's doctors on that so my question after the second side joint and traction that's when he said we'll see how much relief this provides her will send her through another course of physical therapy if that doesn't resolve anything and i think she's looking at a surgical she's looking at a potential surgical intervention and i think that's what's critical here your arm because if you look if you look at almost one of the factors they considered was was there a change in the recommendation or treatment here we did have a change for recommendation that was already prescribed that was already pro i believe he said that they were attempts physical therapy to see if that would result for some time and that is opinion changed as well i believe that he said that the symptoms of her physical therapy will not resolve the symptoms so therefore they will move forward with an m r i i think you know in a punctuation and her symptoms but i do not believe that he ever made a record of the actual fall aggravating the condition to the point where it requires you to consider giving his opinion   sticking around and receiving treatment again there's i believe there's one doctor's note that makes mention of the fall and dr koop these records treatment you said it didn't change in your symptoms we don't believe you're therefore independent intervening cause that doesn't there have to be evidence that there was a change in her injury that there was  again your honor there was there was no change in the nature of her symptoms she didn't have a flare up of pain there was already and it's critical to note here there was already in that recommendation for the surgery she did not she did not know any new symptoms she did not know so again if you look to the case law that we have before us we are stare is nothing here to indicate that this would have been the type of accident that might have broken the chain of causation we had we had no change in treatment we had no change and and new sometimes we had we already had a recommendation for surgical intervention and we are asking that you reverse the decision of the circuit court and find and enter an she doesn't report falling on her knees she reports falling on her and landing landing on her right side the side that's at issue here who write a psych joint she reported sharp right sided pain worse than she's had two month that the pain is so severe the need to get to the emergency room that's what she did the pain was severe enough to send her to the emergency room unfortunately against her doctor's advice at the hospital she she didn't want to stay large because the wait was so long acknowledges she fell and they can mean it on her right side both of these three days apart same history completely different than what she testified to she admitted going to the emergency room she admitted missing work  i think this goes maybe the question sister that you are asking for the first time in any point in time since the date of injury when she was talking to her physical therapist on a third of december third she is reporting and you complain that it's a neurological compelling but she's reporting this numbness in her right foot no the so significant she was having difficulty even prepping her heart that she couldn't press the gas that having a subsequent accident at where you just have more pain in the same location is not an independent intervening cause of your injury i mean take bogle the guy had three subsequent motor vehicle accidents which cause further pain and symptoms and problems with his lower back and it was not to be independent intervening and i agree and the reason for that is ok you already got a lower back injury let's say you fall treated they did then you had the intervening thirty alleged injury the condition that was at issue it was being treated with the same condition that existed prior to the intervening injury you cou certainly say because for these intervening injuries occurred in these three cases there was a failed surgery and it was diagnostically you could see if you can visualize it in the court found in all three of those cases especially what they were saying meet you we've seen these many many times if a conservative it doesn't work has she maybe someone who needs surgery down the road there is no identification this type of surgery there's no like benefit cation as to when this surgery would occur she certainly for me did any of the doctors who testified in this case opining about whether or not in this x their home you received a totally new injury or anything even about did they apply anything about indefinite intervening yes and what did they say i can tell you dr soriano did not because i needed not occur until august two thousand and twelve that would be before this event even occurred dr phillips who is also a well recognized expert on days after we've already talked about how his she was reporting the problem with the numbness in the foot on the third of december on the fourth of december was the first day she goes back to dr koop on that date she's now reporting at different locations in the same lack of months in the white wires because of this increase in complaints the change in nature the complaints he orders a lumbar m r i and the reason why he testified this that he was pages forty one to forty and unfortunately you know national freight talks about the four factors that we should be looking at in one of those observers change biology and in many cases you have it's really like a lumbar spine cervical spine you've got an temples asked dr who he was specifically asked whether or not he believed the alleged intervening accident would have changed his mind on the surgical intervention and he specifically testified that before the ball in december two thousand and twelve t i joint surgery was already being contemplated as a therapeutic master so again you had asked whether he would have identified that that alleged fault and his his testimony and did additionally he counsel made reference to the surge and her and her complaints of pain and then task of the court stated specifically that merely because a claimant experiences an upsurge of complaints doesn't mean the causal connection is broken doesn't necessarily break the chain of causation we can see that there was an accident here we conceded that she had gone to the emergency room after she contacted back to the movies office what we don't agree with is the commission's findings that broke the chain of chain of causation this there was an upsurge of pain complaints she did contact her doctor's office and noted i understand there were some discrepancy in the medical records and the testimony again that a change in her complaints there's nothing and his medical records and the ending that after this fall surgery is now being recommended there's there's nothing in the medical records to indicate that and i don't believe that this fits the legal was maybe a new complaint of pain but we have there's no identification that related to the f b i joint injury the doctor who we have been recommending the surgery for she did have an upsurge of complaints that's not enough to break the chain of causation there was are recommendations for the surgery the only qualification was that let's see if physical therapy resolves the symptoms first again i believe that the decision of the circuit court should be reversed and the decision of the arbitrator