i think it would be it would please you to to have counseled to still be there argument as much as possible and here it seems we have a credibility issue all we have is a credibility issue and i mean even reversed myself i said it was a manifest way case this may be a legal question because here the the commission we had we had a trial before an arbitrator of the over trader vendors and fully capable decision and include in that decision the specific findings of credibility court reasonably request some support for that flipping be the credibility decision on its head or did they find a number of specific inconsistency and problems with  prior to nine hundred ninety nine when he was hired by the employer however he filed a compensation claim stating claiming he sustained problems at work at elgin industry i mean you can't have it both ways he said he was not previously employed and obviously he was it's not a credibility issue i don't see how you are with all due respect i don't see how it has any bearing on  facts that this young man was testifying to lap the time of his not telling the truth on the witness stand and any if you i suggest it has a lot to do with this credibility even if it doesn't relate to the work accident us why it doesn't matter what it is of course an inconsistency is always mattering around here but this is a gentleman who had significant learning disabilities who had who was at the  but was pointed out to the arbitrator on the record and but it was not considered by the by the commission but your honor even if someone ok these are not you're absolutely correct we do this every day when people we make judgement calls we make determinations as to credibility and when we find inconsistency is when people tell us things that we we  later are not so we know through independent sources are not the case of course we tend to call their credibility into question as with it but not here here your honor here it's not possible because here this young man re work a little before four o'clock in the morning did all of his work work for four hours his work is clearly heavy work he reported to his supervisor around eight o'clock in the morning about four hours later dick ford that he h himself he drove he not the smartest bulb in the box obviously he drove himself to the hospital nearest to his home which was fifteen minutes away he checks into the hospital an hour and five minutes after he reports the accident to dig ford and he is he's assessed at the emergency room with a massive bio lab only we don't hermia so i ask you your honor no matter whether the guy has a bad memory whether he can remember that for five years earlier he did go to the doctor and one occasion for growing pains when he can't remember seven years earlier that  room records from the day of the accident when he sought treatment that day indicate that he complained of having growing pain for the past twenty four hours and discomfort in the drawing for two weeks yes they do ok he did this heavy work every day of his life whether he strained himself two weeks earlier and then you know fought through it and then you know whatever he did on that particular morning you know made it so bad that he couldn't stand it and had to go to the hospital it doesn't make any difference i mean you know we've been instructed you know since since the sixty's with her public steal that we only need one causative factor so the fact that he may have had a preexisting predisposition or that this injury may have begun days or weeks prior to may fourth of two thousand and six doesn't really have any bearing on whether or not the injury became much worse on that day he did the treating surgeon dr clay did render an opinion that she didn't believe it would be possible for someone with that serious an injury to perform a heavy work but he clearly performed and also your honor i would say when you're talking about credibility here look the only piece of evidence is is this here is a document created dissipation of litigation two weeks after the accident by someone who doesn't have any independent relection recollection of talking with the petitioner now what about pick forward you say it hinges  the guy he reported the accident to now unfortunately dick ford apparently died of a heart attack eighteen months later but two weeks after the accident the human resource director knew that something you know the dismay the source of litigation so she she directed the guy a guy whalen to prepare that statement to the commission say this case in just on that letter they as much as say that your honor  whether he was working prior can maintain ninety nine or he didn't he said he was not great but i don't i don't even recall the commission mentioning that but again you know whether this a guy with serious learning disabilities and so if his memory isn't really really sharp again i just don't see that it matters because again if he presented to the hospital he didn't have time to stop anywhere between leaving his job site and and presenting himself at the emergency room the kishwaukee hospital and when he presented himself at the emergency room he was diagnosed with massive specific injury on may fourth of two thousand but if you file your claim saying that what took place on may fourth two thousand and six call off his injury and that's what he's claiming that he had no preexisting problems the commission probably felt that the was and he was a doctor who explained what was going on as far as the nerve entrapment but the treating surgeon was the only opinion that was solid with regard to what he could do and what he couldn't do and she clearly stated that she didn't see how he would be able to do the work that he clearly did for four hours with two massive b he acknowledges he's having growing pains what is that occurring in his body at that time immediately preceding the accident and then what happens on may the fourth and then what is his condition immediately after may the fourth what is the evidence from the records suggest is that progression of a condition what's the surgeon say about or does the surgeon explain the surgeon not withstanding notwithstanding multiple assurances by myself and her own attorney the surgeon here is an eastern european woman who was was scary to debt that someone was going to sue her for malpractise that there i don't believe it's in the record here on but they're asking about the dynamic that was going on here it was like pulling teeth to get any sort of opinion out of her off the plane looked at it and on but but she did render the opinion that she didn't believe that he could do the work then anyone c do the work and he was supervised and he didn't do the work so i submit to you that the fact that he did the work but he was able to do the work and that he immediately presents to the hospital with these with this significant injury that only dr who testified to that effect says he wouldn't be able to do that work i think that's that's enough and that convinced the arbitrator now till two there is no the innuendo that the the commission relied upon is also in this all this about well maybe he was lifting weights all that there's so much about lifting weights there's no evidence no evidence whatever reduced by the commission as to whether weightlifting could possibly have caused  i was running and i was trying to diet now if you're lifting weights every day and you lose fifty pounds you're going to appear more muscular doesn't mean that you've been weight lifting but even if you want weight lifting you know the commission doesn't doesn't have any medical expert to rely upon pursuant to void and there's no medical expert that testified oh yeah you know doing quenches or doing squats or or whatever he was doing is alleged to have been doing because he said he didn't do anything whatever the alleged to be doing what he had that could cause this injury or that couldn't cause this injury we don't have any medical testimony whatever either way so given given the facts that we do have and given the inferences that i believe we must take this young man clearly something happened and again you're right we don't have a doctor but we all know that you can take a piece of fabric you take a piece of muscle you stretch it you stretch agrees to tears i can tell you that happened at a medical doctor but he brought up on a number of of points that are are really outside of what the central issue here is which is a credibility teacher as justice hudson pointed out there are is a laundry list of conflicting in incredible testimony from the petitioner during his examination not only did he testified about not previously working adults in industry  but he testified that he was not working during the period between february of zero seven and over movember of two thousand and eight he was working a general school district not only did he testified back he had absolutely no subsequent work injuries after he left out timothy which was the company that took over for smurfit stone on june thirtieth two thousand and six of may he petitioner testified no no subsequent work injuries after that it happened quite frankly but these are sort of collateral issues here it doesn't detract from the what he believes to be the medical evidence that supports his claim so would say if you did that there is no m the medical evidence the surgeon was under wasn't just minute he reported to the hospital and no doubt had this injury correct how do you count the fact that he were doing this heavy lifting for four hours during that ship before he did that there is no testimony from any medical expert that he couldn't do that and i know he talked about dr cried out but she didn't offer an opinion she was very narrow about her opinions were based on when she softened she saw him in may on may fifteenth two thousand and six he actually did not work for i'm sorry when he went to the e r he specifically told the emergency room that he had had constant pain for twenty four hours i can't say exactly why he worked but he told them he had pain for twenty four hours he said he had intermittent pain for more than two days when he goes to dr crotty for a surgical consulate on may fifteenth he tells her he has a true three week injury you know this is a physical labor job i'm sure this is not the first time that mr sitars would have gone to work with aches and pains now it isn't i didn't know that we you know severe injury i don't think that anybody is disputing that but in terms of actual medical testimony saying that this accident was caused at work on may for he hasn't and then in fact the petitioner denied having any prior complaints me so if you know in petitioner's argument here the problem with the case is that they can't reconcile that they have a the claim a specific date of injury but then they're saying maybe it was repetitive and he had again you know we're we're we're commanded by the case law to look at the entire record when when we look at credibility decisions generally and i think it's very important in doing that they have a sense of the dynamics of what was going on in people's heads and because your honors to do here is so many matters i just appreciate the opportunity to to remind you what was going on in this young man's head and much of this if not all of it was administered trial this this is a young man again clearly below average intelligence with learning disabilities who had a young child at the time of this this accident had a child who was barely a year old who had severe congenital deficits that required massive medical attention  the employer's group health insurance had already paid a million dollars in the case by the time he had this injury and there's testimony from the during the trial that this and and he he testified that he had a conversation with linda or with the director of human resources that you know how she should handle this and and she told him that if it was handled as a work injury he'd probably be fired and lo and behold the next time he reported to work injury and in january of two thousand and seven he was fired within a week so that's going through his mind and he's thinking to himself if i lose my job i'll lose my health insurance i lose my health insurance who's going to pay for my baby's medical bills so he went out of his way not to point the finger if you will he wasn't looking for benefits he wanted to get back to work he wanted to get fixed at the time of the accident he used his vacation time the medical bills were paid through the group health insurance he just wanted to get back to work this eve would never have even him at he never would have filed it workers compensation claim in this matter until the summer of two thousand and six when he could no longer work because he had this terrible abdominal pain which was eventually determined to be nerve entrapment as a result of the surgery just as  he it was a very severe surgeries very young so he was likely to happen so but he didn't know that and he eventually thought that he was really injured and that's why the other plane was filed now it's no secret that me that's all that you do that's all that all of us do is worker's compensation we know how the decisions are written the proposed decisions are written by the attorneys who represent the parties and the arbitrators who are so overworked many times they skip to the end if if the result is what they say they believe is is appropriate bill signed in this case the and i only mention this because it was brought up about the was not injured in january of two thousand and seven while that gilding the lily took place of the other attorney putting that in there bet you know he was found to be not credible i have no idea petitioner never sought any compensation from the two thousand and seven accident because it was it was found not to have been an accident he was not reinjured in january two thousand and seven it was simply that this entrapment had become so significant that he had severe pain on exertion that was completely eliminated but that's that's the companion case that in any event this is what was going through his mind so if you're wondering to yourselves well why isn't this better mo morial i used as a worker's compensation claim you have a guy who's not too bright you have a guy who's scared to death of losing his job and it's not just any guy who's scared of losing his job you have a guy who's supporting you know a child with with severe medical problems and the only means of securing medical care for her is keeping his job so does it surprise anyone here of that a father is going to go through whatever he needs to go through as far as pain or whatever or to be able to care for his daughter that's the dynamic that's that's  unreported and these other small inconsistency here on earth again i believe those are easily attributed to or dismissed by the fact that this gentleman you know is such marginal intelligence i think you all do you have