medical perspective was articulated by the only supreme court in the case of a veil being molded and iron company first to commission in that case the supreme court stated that for a claimant to establish an entitlement to permanent serviceability benefits it claimant can't perform strenuous physical labor does not entitle him to an award of permanent or disability benefits in this category the court stated that when the medical experts agree that the claimant can perform some type of light duty then he is not obviously on employable and therefore not entitled to from a little disability benefits in this case when the core reviewing the transcript of t will know that there was three doctors who testified all three doctors in the released and returned to work in a light physical demand level of order for an opinion on the opinion of those physicians his or by the surveillance tapes which were introduced into evidence which clearly establish that the claimant was able to perform activities in the light physical command level does not apply in the supreme court's analysis to these facts and leads  if he was allowed to change positions frequently with no lifting over twenty pounds answer from dr burstein yes question would you agree or disagree with that doctor at least attempt to return to work or cut off answer i don't t position like that would be dangerous to the patient but i do think it would cause increased complaints of pain question but there is no contradiction from a medical perspective from him returning to work in such a position answer from bernstein yes as a light duty position that testimony of dr first you know cross examination was not which was not changed under redirect examination he didn't change on the recross examination that was the last you take sleeping pills interfere with his thought process of his concentration his sleep deprivation so the commission couldn't take that in conjunction with bernstein's opinion and say that he's totally disabled let's i'm going to speak to the bernstein's opinion medical only community total and the standard by the supreme court was obviously unemployable and when you have two physicians who spoke about one deferring to the surgeon the surgeon saying he can return to work in a restricted capacity group that but i'm going to submit to you that i'm let's take the return to work part there is no evidence to say that he can't return to work all the doctors testified he could return to work in a restricted capacity twenty pounds lifting change position frequently so we have  physical parameters of his return to work the medical side the medication side who's the person that should answer the question that will be the doctor prescribing those medications that's dr norton he's asked point norton said you know these prescription medications impair his ability to function and that coupled with limitations on his physical activity could limit his ability to turn to work that's really vocational at the moment not medical testimony when you take those two pieces together and they didn't present any vocational testimony to put those two pieces together what the commission actually did you read the other two decision which was adopted by the commission become a trader said the effects of be exposed to the right way and challenged that's the best not common knowledge that's not something the other trigger has the expertise to opine that should be in the doctor who's prescribing the medications rendering that capacity twenty pounds lifting ability to change drive positions frequently i would only have to support that conclusion this group will look at the videotapes those blue tapes clearly establish that he the least people performing ought to be at level if not in excess of that level that's one piece of evidence to support this matter and the interplay between the videotapes and the medication i think is important for this court to understand mr wright used his performing albeit he's a daily human i do every day he's tried a car he's going to the bank he's running errands there is no confusion no manifestation of impairment noted on the surveillance  problem say that somebody can't war because of the confusion caused by prescription medication yet he can drive an automobile on a constant basis you can't reconcile the bags with what the commission found in this case to eat conflict in the medical evidence and the medical evidence in this case is basically dr bernstein versus dr anderson dr bernstein did ties that by that it was in his opinion mr reality was permanently and work his restrictions remain the same and i think if you look at that passage in the cross examination and you file a follow up from start to finish you'll see that the opinion has never changed because he was specifically asked it your opinion and  permanently disabled his answer to that was yes and then he went on further and he was asked about its current restrictions and he said yes my current restrictions are based on the accident which occurred in april of two thousand and one the subsequent basically he basically said that when you do there there was nothing in my estimation to change my opinion particularly since mr reality testified to all these current complaints on the crown complaints were pretty significant mr ascii in a particular talked about is that probation of sleep he said on a good night he was able to only able to get three and a half hours of uninterrupted sleep because of his pain but with regularity he was unable to get any sleep whatsoever as a result of this inability to get sleep he found himself laying around the house all the time lying around the house in his sweats and he had to take constant naps because of the pain which caused the deprivation and it's late for this  condition this man is in now he could drive a car but he also testified that when he drove a car he had to make sure that he was in either the inner lane or the outer money so that if he developed this serious cramping that he had with frequency on a daily basis he could pull over and get out of the car and stretch out or whatever he needed to do so he could drive the car but with this certain limitations in terms of his daily activities this is a man who played golf three times a week for twenty years after this incident he played golf he tried i think once or twice and that was about it is this is a man who went to the health club and walked on the track and he did various other light exercises when he was at the health club after this particular incident he could only go to the health club and he would sit in the steam room and he would sit in the whirlpool and that was the extent of his activity there this man's this man was severely impacted by the injury and he was severely if acted by this constant pain that he had and the pain was an integral ingredient of all of the assessment that was made by dr bernstein in this case plus dr norman testified that what was limiting mystery asked in this case was the painted here and with the credibility determination on the pain in this case you know it's it's it's hard to see how this is nothing how this could be anything but a question for the precisely factually the same essentially these cases are essentially the same they talk about situations where there is conflicting evidence and you know who it is who resolves questions in a conflicting evidence questions and it is the commission and it is the commission that properly resolved those questions in mr ascii favor here and we're asking this court to affirm sedentary capacity i would defer to god to bernstein regarding his actual ability to return to work so he was given the opportunity dressed that under direct examination the chose not true he did not give testimony that he's obviously on employer and that  to the valuable piece i think it's instructive for us to look at the facts of the supreme court decision available and i'll do it very brief because i know many times limited in that particular case the claimant was in manual labor spoke english as a second language he worked as a schemer the time of his accident which was by all accounts a highly physical but very low skill position by performing his job he suffered a stroke as a result of the stroke he lost control and straight the ball of his limbs his doctors all over testified that testified that but for his voluntary retirement as it would be to trial he'd still be working for humana the respondent presented procreational evidence that given his background his education and his medical restrictions but there were numerous employment decision we now have this with instructions to assess permanency outside the permit disability campbell thank you for your time