thank you move please the court counsel my name is john i'm here on behalf of santos moore and the only issue before you today is the issue of penalties and attorneys the commission failed to award penalties and attorney's fees as did the arbitrator there is the commission's reasoning which is why we are here the commission found that the petitioner failed to prove that the respondent acted in an unreasonable  the first is on the period of benefits that were paid six months into the claim that was the first date that any benefits were paid prior to this claim my client had fallen at work and found that his sedentary restrictions were related and the case was never appealed by the respondent the claimant was working for the city his prior employer under light duty restrictions at the time this second  when the second accident occurred he was working as a dispatcher he got up tripped over some wires fell onto his knees in his hands once again injured a slow back and his knees the period of time between he worked for about a year for the city before the second accident he had never sought any medical care he was taking over the counter tylenol he had never taken any time off work to do the condition of his knees or slow back in the condition had worsened if his sometimes became worse he may become a candidate for bilateral new replacement surgery in the future as i mentioned he worked for a full year without seeing a doctor and without missing time from work able to perform all aspects of the job the injured some stuff here within three months of that accident on the first day that he sees  says he now needs to have bilateral new replacement surgery as a result of these new symptoms he sends mr morgan over to his partner dr nelson the same day and dr nelson concurs what's important is both of those doctors with the treating physicians in the first claim they knew his condition when they had last released him and they knew his condition and had remarked that had to change there was this new incident fast forward in time to six months after the accident that's the date of the first payment of any compensation to mr moore accident was never in dispute on this case only causation and  expert opinion and was a good faith dispute based upon a real controversy petitions belief that the december e t twenty only accident was not because of the petitioners need for ongoing treatment in a total knee replacement was a conclusion that a re asonable person in the course position would have made based upon the facts available to the responder when the accident occur they don't want to say respondent acted reasonably in what wine upon the opinions of petitioners the expert from the prior support a position of penalties an attorney's fees no bitch true but you forget the next sentence the commission finds the decision of the arbitrator was not contrary to the way to be evidence and here by our farms and the cops practice gives the employer fourteen days to do one of three things you have to pay t t benefits they have to indicate in writing that more information is needed violated the rule of the commission that doesn't mean that their refusal to pay benefits wasn't reasonable the burden remains on them to prove the reasonableness of their kind according to the arbitrator which the commission adopted baby did i understand that and i'm going to address that they did not do that until their proposed decision the first day that the first time we ever learned to ride they were disputing this case was in the proposed decision that's not reasonable for a man who had a prior injury which was causally related and then has a second witnessed fall dr could previously said and that's where some of the confusion comes in at some reasonable for them to not pay t t d benefits for six months alone for six months into the claim they finally realize they do or t t t benefits and they pay it so what is their explanation for waiting six months to pay this man t t d benefits according to the commission by adopting the arbitrator's decision it's because  knee replacement surgery would occur if the condition worsened he did not say he needed at the time and that prospect of medical relief was not ruled in the first decision because he didn't need it at that time he it worked for a full year at this sudden terry dispatcher job without any medical care other than over the counter tylenol and no medical   there is not contrary evidence medical evidence to support the commission's decision i understand with the arbitrator found he was wrong and i'm already showing that there was not sufficient medical evidence first of all if we are relying on doctor code first report it doesn't say what the arbitrator says that it said and that's why i cited in my brief it's sad that in the future that it was reasonable to rely on that and even if it was reasonable they didn't pay going to that claim either they continued to deny medical care in tonight payment of benefits he certainly would have been entitled to benefits under the prior claim girls versus industrial commission situation where you've got two separate insurance companies pointing the finger at each other and saying it should be the other insurance company will this court is really decided that that is an is responding introduces all sorts of evidence that he behaves reasonable and is not required to pay penalties doesn't the petitioner have a right to introduce evidence that he case so that would be a manifest weight issue i do not disagree with you there i'm first looking at that first six month payment there was no written statement pursuant to rule seven one one zero point seven was not unreasonable you've got a piece by only schoonover rule and the rule carries with it no penalty ok but i'll let me address it this way they did eventually get an independent medical evaluation any words in disagreeing with dr robb's opinion they basically said there's absolutely no basis to finally pull the i don't disagree with you on the issue causation you wanted the arbitrator found resulted in a temporary aggravation of a preexisting condition as respondents disputed of this claim is based upon credible medical evidence the dispute and nonpayment of benefits was not reasonable or vexatio chicago the supreme court said in the city of chicago versus industrial commission you then look at the reasonableness of the conduct of the employer in relying on  he's referred on to he sees in his own doctor dr schaeffer takes him off work he's referred to pain management he gets an injection in his need he has three hours worth of relief there is nothing there's no this prior accident and has a bad time bad condition is now related to that first accident they didn't pay him under that accident either they're saying we're not going to pay you one of the first accident we're long standing degenerative condition which is what dr rob said which there's no basis for because a bomb by the law of the case in the first case so you've got a man who's out of work for six months not getting paid any t t d benefi where it's two different parties want to it's not just responsive right here you're talking about in your positing of the issue to accidents and you're saying it has to be attributable to wanting or the other first accident the only six case and that his current condition of ill being as of the day to vet decision a body your prior to this injury is not causally related to that accident that's gone bet longstanding please the court david larson on behalf of the city of chicago this council already indicated the issue before the court today is the question of whether to ward penalties and fees in this case i am here today to ask this court to affirm the reasonable and good faith challenge to liability as was previously acknowledged the arbitrator found and the commission of from that the respondent acted reasonably and in good faith in challenging liability in this case at the medical history prior to the accident in december two thousand and eight specifically the defendant relied on an opinion speeding cars exactly so so how does just having knowledge of prior injury make it more reasonable to assume that it's because of the perjury and not of their group or a ship of the preexisting injury there is a specific opinion which was already addressed in this case that a doctor call in december  of the employer doesn't have to go get a new medical opinion which you're arguing you can do relying on one from two or three years ago that projected out this sunday you might have to have  connection between the petitioners work accident december two thousand and eight and the petitioners current condition of bill being so small it was six months before the employer started pretty quick and it was after knowledge fisher's various private claims related to the body parts issue and this opinion from dr cole indicating that at some point the petitioner was going to require total knee replacements which end up being the recommended surgery because of this prior worker's compensation injuries to the bilateral in these injuries that occurred prior to the accident issue excuse me standard is no reasonable person could reach the find commission here as was previously indicated the arbitrator in his decision which the commission from to adopted noted that the respondents causal connections either in march or may of two thousand and nine it was done immediately i believe it was done in march i looked at the commission web site earlier today it is listed there under the motions but i don't recall that date so counseled with all due respect to counsel he did not try the case file the priest or have a new involvement in this appeal up until doing the orals you turn you handle the desire maternity leave right now i can give you the no time was there any argument that they were relying on dr cole again that only came in the proposed decision they wanted the opportunity to get an independent medical evaluation with dr rob and case to get dr robb's evaluation of the man so they paid him six months so dr rob two weeks later and then dr rob gave his opinion they paid him for two weeks they paid him six months and they paid him those t weeks between the six month payment and the two weeks later when he saw dr rot and they terminated the benefits again based on dr rot which is the second part of my penalty argument once they had dr raj opinion they terminated  he had an injection just two months before seeing him and the injection lasted three hours he might have had a different opinion is that a reasonable basis to deny the claim no the second prong of this opinion is it's a longstanding degenerative condition this is just the natural progression of the generative condition it wasn't based on the law of the case of the prior that's knocked out completely and they knew that they knew that it couldn't be due to a and based on the vet i feel he needs bilateral new replacement surgery then so given the prior claim even though he was the surgeon there he just said someday this man will need it nobody ever said he needed a prior people only time contrary to what the arbitrator found that there was any claim that dr cole was the basis for them was in the proposed decision not that's why the rule needs to be followed and that's why perhaps the bush should be the case that says if they don't follow seven one one zero point seven zero and give a written explanation when the clear language says they shall do that within fourteen days should be enforced here because they were basing it on anything initially in this because they didn't have any basis they are trigger concluded that by forcing them to give us the six months they ventilate out relied on dr rob we would know what they relied on and it is their burden to show the reason with most of their conduct they didn't do it by complying with seven one one zero point seven zero so what's the benefit of that rule if they don't have to comply with andrew bones the city the city didn't appeal the circuit court decision the circuit court of formants they did appeal the commission decision of the circuit court but they didn't bring it to this level nevertheless they're not paying you war why they're not contesting causal connection anymore because they don't get penalties against them when they don't need that's the only reason and so today this man is o hundred eighty seven thousand dollars in accrued award but they will pay him there's a specific case that says penalties are proper in this situation and i knew the name of it and that petition is pending before the commission out there holding off on that not to spank people for bad behavior in the past make them comply with the rules if they comply with the rules next next time maybe we comply with the rules of to pay penalties for waiting six months when there's no basis and for relying on record 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