may please the court and good afternoon again council my name is chris drink wine and i represent be a prominent employer p s i incorporated my client contends that three decisions by the commission were against the manifest way to the evidence that petitioner proved an accident occurred at work on june st two thousand and thirteen nd that petitioners lower back condition possibly related to that commission ultimately denied that claim and that claims not before this court however that claim is still important in this appeal because it bears on the petitioners credibility and also upon the causation issue so ten months after hurting his back while pushing the tank with the bat wheels petitioner or part of the slipped and fell on ice while at work and landed on his back petitioner testified before the arbitrator that pedro granted a witness the ball that they nevertheless ended up finishing their shift that day and that day and that he went to the doctor on the following day this testimony stands in sharp contrast to the medical records which reflect that the petitioner reported to the doctors that he went to he went to the doctor on the same day of the evidence because the commission didn't recognize and take into account the discrepancy between what the petitioner told the arbitrator and what he told the doctor and this justifying so four years later correct thirteen so that's in tune system with the testimony before the arbitrator when he said in a no uncertain terms that he didn't go to the doctor until the day after he well what about the the fact of the matter is your honor that when he testified before the arbitrator he said that he slipped and fell on the st day and then the following day he went to the medical he went to the doctor also whereas the medical records reflect that when he got to the doctor on whatever day he got there he said i felt that day not the day before so there's an inconsistency with respect to the day you have ordered off between the medical records and the and the other indicia of his lack of credibility throughout the wreck and the problem with the case your honor is that the commission didn't recognize the discrepancy that i'm writing because they freezer that's incorrect he did not have the pipe he testified that he went the day after and he slipped and fell and we know from the medical records that that day after was june st one so that's incorrect right out of the gate and then the significance being your honour's is the st paragraph of the conclusions of law where the commission concludes that the medical records corroborate the petitioners testimony before the arbitrator they do not that very reason and respectfully your honor if the commissioners would have recognized that discrepancy they couldn't have and wouldn't have made that conclusion and of course the significance of this is that they've looked at all the rest of the evidence through the wrong lens because they didn't appreciate that discrepancy so basically you're saying that they have discussed and c is fatal in reported a pain level of seven out of ten but on physical examination he also in that same chart no indicated that the petitioner was in no apparent distress that's not consistent  saying it could have been the other two that would have been on the case up provides for other causes but there is no opinion i think that you know that the june st two thousand and thirteen accident was a cause it's just a possibility as about the august two thousand and twelve accident because in the sentence after that says he failed to fill conservative treatment in fact it has been almost a year since the onset of the initial injury and he's writing this in june  chart that it's been almost a year since the onset of the initial injury and my point your honor is that when he says that he means the august two thousand and twelve injuries because that's the one that would have been almost a year ago not the adequate position opinion comes from dr hennessy and his opinion is far more detailed far more credible and i think in large part  you know works used of repackaging our conversation argument when we argue in the alternative with respect to our rd contention that the dissenting missioner commissioner since then got it right and i think that's exactly right we are repackaging our causation argument and i think commissioner since and saw that it was dr hennessy's opinion as to conversation not only that it was the only one that could be relied on but it was the perspective so that i think that's right i think we did repackage that with respect to the rd contention argument is that the initial discrepancy together with the uncorroborated testimony meaning he didn't call pedro rhonda and we all know that he doesn't have to we all recognize the cyber case that says uncorroborated testimony can be accepted by them and except where the other facts mr circumstances pandering the opposite conclusion that's the essence side's argument in this appeal and that ponder ration comes from not only the uncorroborated testimony he didn't call a grand day but the eight but all the other circumstances including a fear or repaint report of blowback injury until he got to new life and also commissioner simpson serious reservations concerning distance when you take the discrepancy that the commitment to come from the mission failed to recognize and you put it together with all those other circumstances this is  primary contention the concern about the date of the accident i agree sworn trial testimony was that he went to the doctor the following day after the accident th accident was june st and the most common reading of that many lay person would be that he went to the doctor on june nd the commission in its decision acknowledged the discrepancies in the histories found them to be insignificant and ultimately found the petitioner proved his case with respect to the occurrence of the accident it is not as if the commission ignored the discrepancies the commission specifically said we acknowledge the discrepanc i'm not limited in my argument in this court is not limited in its consideration merely to the rationales given by the commission and its decision but we can go to the record for other rationales or other bases by which the commission could have come to that determination and i want to highlight one that i find to be very very important looking at page one one hundred and fifty two dollars of the record this is the initial intake form at new life medical center which interpret that to mean data the accident and it is handwritten in there sixty two thousand and thirty dollars that would be the day before the commission determined this accident occurred next to that is an illegible word what he meant was i went to the i went to the doctor the next morning which for somebody who's working rd shift is working overnight that's a reasonable interpretation of the following day this is further supported by the distress testimony as to what he was doing at the time of the accident he is repairing a cheese machine is not operating a cheese machine he is not making sure he is repairing it she's and she's leaning and she's the kind of thing a rd shift employee would do  so i don't find i don't find it incredibly persuasive the petitioner testified he went to the doctor the following day when that explanation is there and it's plausible again the commission acknowledged the discrepancies in the record acknowledged that there was some confusion and it wasn't ultimately clear exactly what the timeline was the commission shows who ultimately find the petitioner met his burden of proving an accident occurring on june  even the dissenting commissioner agreed that the accident had been proven on june st two thousand and thirteen the dissenting commissioners argument was based largely on also connection was based largely on the medical evidence and the opinions of d versus dr erickson dr chung very dr jane dr morgan dr cardiology all of these treating physicians who a pint in the case that was what the dissenting commissioner was getting at she was not pushing at the issue of accident and whether or not the is talking about you know two different injuries the causal connection opinion the doctor gender it is not clear as to which accident he's talking about i think getting into those those questions i think the easiest way to to look at that or the most helpful way to look at that would be to look at the testimony of dr erickson who said probably you said it could be a little bit of both you know there could have been some contribution from the twenty five accident dr erickson also acknowledge that following the twenty's while the accident petitioner went back to work with the same employer and was you know working in what i believe he characterized as a fairly vigorous position he was doing physical manual labor i don't think it's unreasonable for for dr erikson to have concluded that both of those incidents could have been contributory it would be in workers compensation you know we don't generally deal with one sole cause there doesn't have to be one sole cause to an accident there can be talking about the nd accident because as he said just as you went back to work we know from the record he didn't go back to work following the two thousand and thirteen accident therefore dr john barry must have been talking about the twenty thousand  i don't see any other way to interpret that particular statement from d and as i said dr szandor is opinions are not the only ones in the record they're not the only medical opinions that the commission considered the commission consider the opinions of dr john durie dr morgan dickson erickson there were a whole flock of treating argument he believes that you know the commission's analysis was faulty because they started from a faulty point that they failed to consider the discrepancies in the medical records i would state the same thing is true of dr hennessy in his testimony when he was specifically asked about causal relationship and maximum medical improvement to the two thousand and thirteen accident and this is from page seven hundred and seventy eight the record dr hennessy says i don't even think the concept of maximum medical improvement is a political because i question the veracity of an injury doctor hennessy's medical opinions are coming from dr hennessy's premise that he doesn't think this accident happened the commission determined the commissioner or the petitioner proved to the accident so dr hennessy's opinions being based upon his assumption of the june accident didn't even occur in pretty much be be thrown out if not you know totally but at least can be discredited by the fact that he doesn't seem to believe that there was an accident or an injury of june rd that seems to be where he's starting from dr erickson when he discussed the medical evidence goes through the positive disco gram positive s s e p findings you know he acknowledges that it's possible that you know of those with degenerative spinal conditions of his age so it's reasonable for dr erikson to conclude that the accident would have been contributory to the injury would have been contributory to the need for surgery that was the conclusion that the commission drew that was the conclusion that hundreds if not thousands of patients does not acknowledge that there were two accidents in this so a way to interpret it is that he's mistaken that there's just one with regard to the council suggestion that the petitioner went to the doctor on the nd that can't be because the medical records all show that he went to the doctor on causation i just want to make my point again there's a difference between an opinion that something is contributory and something is possible obviously we all know that there can be can more than one cause of an injury  no opinion to a reasonable degree of medical certainty that that was a cost what we have from dr erickson is basically an opinion that it's possible that it was either one of the accidents or nothing to do with the one count and that's possible possible possible it's not opinion followed by i also concede it could have been something else and i think that's what the law allows but not to form