let trickle panels it's a job which requires lifting metal panel boxes which way between one hundred one hundred fifty and two hundred pounds depending on which witness we listen to and he worked according to those witnesses the only basis for dispute in this case the coworker it's consistent with the adjuster from piper who came in testified that she conducted an investigation if she interviewed these coworkers that she read the medical records she read the section twelve report and in fact this cla was accepted on the date of the trial you just have testified that this claim was still accepted as compensable and most importantly responded stipulated or settled the issue that tom's present condition the serious respondent or the employer settles the issue they sign the stipulation she and i believe the ingress your case just came down recently i don't believe that walker is going to be overturned in this case and it stands for the proposition that the employer conceptual or stipulate to certain issues in reliance upon that stipulation of that settlement mr bork make certain decisions among them not to call dr bernstein that testified not to call the justify and as to when the respondent stipulates that the basis for the dispute are denial his coworker testimony and that coworker testimony is complete mr work make certain decisions regarding the conduct of the trial in reliance upon that prior stipulation that's that settlement of the issue and reliance on the testimony that came before so we decided not to incur the expense of taking a doctor's deposition because why should we do so when the respondent or the employer has settled the issue once the arbitrator found which was supported by the medical records the midst of work sustained a serious back injury in the commission affirms the serious back injury and the respondent settled that the serious based on court order testimony we reviewed the coworker testimony and then we we review the the clear records that are in the medical evidence and we will listen when we listen to the to the testimony of the adjuster and then we conclude that there is in fact there has been a serious back injury and then we peel away all of the reasons as to why the arbitrator found that there was a serious back injury and they all relate back to this present condition related to the accident now if we look at the that that that's what it does back say however the reasons or the explanations that undermine the credibility of the issue are all related issues having to do with this preexisting condition for example forms filled out for health insurance i submitted that that's not relevant to the in korea hand and that sort of brings us to our next subject which in fact works in tandem and i was struck as we into the building today and the words in the row behind us and it says here the other side in latin and here in the other side has evolved over the course of history into what we consider of the natural law or the right to due process and in this instance mr bork was deprived  process when the arbitrator conducted this case as if it was a motion for summary judgment or motion motion to dismiss as the court may recall prior to two thousand and five to respond as part didn't have a means to bring a case to trial  who had the burden of proving the case i am of the position now that that's the filing of a nineteen b petition by the employer what's called reverse nine hundred b forces the claimant to put on their case arbitrator however at that time found that it was respond its motion and then conduct and then proceeded to conduct the trial as if it's their motion to dismiss or six hundred nineteen motion so the respondent or the claim are the employer opens called with this is called my client as an adverse witness and flipping the process a dupe of due process upside down and then creating this there's this illusion that my client is somehow contending they bring the petition to reverse a petition saying he's not entitled to any benefits let him prove it and evidently they did because you couldn't even convince convince commissioner your client was entitle to run that's pretty hard to do isn't it well i would submit that if we look for the reasons as to why the my client was a case that was found not to be credible a relates back to his failure to explain why he was late that day how he felt over the weekend some information about the treatment with a doctor in two thousand and eight with a doctor and still working he dicks and i  submit to you that there really isn't any dispute that mr boyd was injured and that the second trial examination indicates that he was injured the adjuster reviews the medical records and concludes that he's in that the case is compensable we appear  the reason that he's appeared on a petition for initial pitta petition for a penalty in front of the commission were due to four months of delay in accepting the case my client had an injury and in august of two thousand and nine one check went out in the middle of august one check went out at the end of september one check went out at the end of october my client appeared at the commission had to remove his shirt and i'll be a down terribly so that respondents counsel could inspect his back for the appearance of surgical scars there was some sort of rumor that bad faith management of the claim for this this rumor being spread that my client had a back surgery the case appeared in january two thousand and eight and for trial my petition penalties and lo and behold the respondent filed their own reverse ninety three at that time these are the issues that are in dispute and if we as we read the issues that are in dispute causal connection or part of the present condition of the petitioner related to the ledger actually isn't one of the issues that are in dispute so i submit  through if there is a finding of no injury if there's nothing wrong with this report then he has no plan but there was no dispute that he had an injury they stipulated injury related to the accident i feel it was a sort of a defens as the accident in subsumes this whole issue as to cause a relationship it's not relevant no accident ever occurred so how can there be a causal relationship to an injury where the commission specifically found that there was not an accident which led to a back injury i think that's where we're parsing terms here i mean does he have a bad back i think the commission indicated getting showed up to work with a bad back and that he basically was not credible that he wasn't truthful that they did not decision as to not only do they adopt the arbitrator's credibility findings they go on to say here are specific other evidence that we feel places his credibility into question and one of the  then a few months before he saw doctors inject for problems with his lower back he also told that he didn't quite explain why it was he came to work i mean that he called up work on the day afterwards but gave no explanation didn't talk about a back injury and didn't actually reported back injury and tell about the second day i do believe that the commission in fact had problems with his explanation as to his preexisting back condition but their main focus was on the credibility and the fact that they just simply did not believe the claim when he said an accident occurred and i think the elliott case is directly on point it is the commission's function to determine whether or not an accident arises out the course of the employment but even before you get to whether or not an accident arises out of and in the course of the point it assumes an accident occurred and in this case the commission and i would cheer specifically did not believe the climate that an adult careless or used perhaps he was not believed because he was denied due process because of the reverse procedure here what's your response to there rob first my response to that is in making that by how or whether or not he's being truthful under an oath not whether or not he has an opportunity to go first or go second i mean i don't think that that is determinate or vesa truthfulness that that's just in fact a process as to when a at the time of trial housel for the employer said to be out of a traitor how would you like us to do this to the trooper who are here and the claimant made no objection as to the proceedings at that time they never said hey we want to go first  we think this is a fundamental violation of our due process rights they never mentioned anything at the time of trial and in fact the employees counsel solicited from the arbitrator how would you like us to proceed and i betrayed or did say hate because it's correct relative to our contention that he and the statute is very clear relative to the one nine hundred it says employers you can petition before the commission as long as you continue to pay t t benefits and then you can go before the commission and say hey we want  hearing to find out if we aren't obligated to continue to pay these benefits and so yes we had a motion before the commission which was our burden to prove now we don't need to keep paying these temporary top disability benefits and our medical expenses hearing i mean i'm assuming that based money questions from you relative to how the commission if that worded their decision relative to burden of proof and i think the case i was also clear that that the truck or the abuses istiklal this question  if the claimant or the plaintiff is not in or out an opportunity to impeach witnesses or support impeach witnesses or or you know to respond to points brought out by the other side and i would say in this case clearly everyone had an opportunity to bring out their case before the arbitrator so there's really no discretionary abuse or due process violation that as to how it was that the trial unfold that unfolded before the arbitrator and really this is a manifest weight of the evidence question and it's really uniquely within the province of the commission if you do that to judge the credibility of the witnesses and to make determinations as to how to afford the w  claimant the rest of the day never complained of any back problems and in fact mr palumbo testified that there was a conversation that he had with the claim in approximately two minutes later where they claim it came to him and testimony of mr can't claim it specifically testifies that he was out on a break with mr chen his supervisor and then when he tried to stand up he grabbed his back in pain and apparently mr chen you know screamed out but had happened to you and the claimant advised him at that time relative to his back accident his injury mr chen specifically deny that he said that never happened i was never they asses absolutely this is all a credibility were who did the commission really off or of them including mission amazing just simply did not believe the claim and so the other issues as to whether or not there's a stipulation as to whether or not we're talking about a judicial admission making this finding in fact specifically noted in his decision not only do you not find him truthful but he said i witnessed his mannerisms i witnessed his responses and i in all which calls his credibility into question saying he specifically knows that and the decision i mean this is an ad decision which is very specific on the back the claim it just was not truthful so i'm a relative to your question i think you've asked me earlier about regarding the stipulation i don't really think it's relevant as the cause of connection stipulation and then we don't really need to get into the discussion of iraq and whether or not stipulations by the commission and how they bind the commission because i think all of that is have sued by the fact that the says the commission acknowledges that the respondent stipulated causation but finds the stipulation to be without significance and so now we're back to the grass here whopper that there is a until you get a finding from the commission decision you don't have to pay because if the commission finds against you you can get whacked with penalties it packed with attorneys freeze and everything else over there is a commission so i think the insurance company was very smart and doing what it did it paid until the commission said you know want to pay and it's exactly what code says they can do if they continue to put it they can bring any action they have to clear they don't need to pay right and i never i never heard of or find you could petition are not credible in my life this is the first time but if we look for the reasons and i don't want to be read them to you but they're all related to two issues that would be not relevant if the