many of the our arguments section does not have page citations i notice this without its i do have the right direction i also noticed in getting ready for this and i again have to apologize because i know i've been chastised about this by justice hawkman some time i think we agree the manifest way senator flies right up there's any question about that i think the primary question here is whether the decision of the commission finding the petition was prominently in totally disabled is supported by the evidence or not i've looked at this file and i came to this as i said after the case was tried and decided and what was interesting to me is it appears that counsel and the commission of the petition was probably in totally disabled on a medical basis that being the petitioner presented evidence from a medical standpoint that he was not able to work in any capacity i don't see that i've gone through all the medical records and all of the depositions and that there were three doctors that were the post doctor  he did at that time but what he said is i cannot and and i cannot impose or tell you what final restrictions or what final capabilities he may have until he undergoes an f c e and he can't do that until one of two things happens either he has the treatment dr escobar which he described back to work maybe he's entitled to t t t benefits that titian also says rather and to what degree he can go back to work will be dependent upon an f c e which i won't order until he gets his other treatment if he chooses not to get other treatment or he doesn't get better says i'm concerned and i think he's reason to be concerned but well if you get a situation where he is treating physician is treaty i am examining physicians you know discuss what his situation is maybe if you get a chance private i think that begs the question to his doctor said that he would be better if he had pain management and that goes to in part the issue of medical care and medical treatment was the petitioner mathematical improvement at the time that he was examined by dr mercer and found to be a disability of whatever degree i think read a point where a decision had to be made is are you going to get this treatment or not and if you are any is it like he didn't have any way to pick up well that's what he testified to i and also his doctor recommended  determined i mean i know you saying at this point it's just really not even at him in my mind to just be receiving the t v i don't know i think two things i think number one if the petitioner is going to make the statement and i believe he may have done that by going trial when he didn't as he did he's going to make a statement i'm not going to get any further pain management treatment that my own doctor had prescribed doctor could talk to us about that when he said he didn't come in a petition he didn't come in and say i want more treatment i feel i can get more treatment get better he came in saying the side all issues including the extent of my injury ok that's the petitioner's choice he can choose not to have treatment but the question i think then you have to ask is number one is that we use a reasonable it's not an invasive procedure they're talking about pain management and happen so you're saying well he didn't sustain his burden because nobody actually came in and say hey didn't happen and why did happen well then a driver insisted he remains in the same condition without any type of management i think the commission can always are reasonable and it's and i guess the question to me that i have in response to your question is is that really a reasonable inference and by that i mean mr holston was given a prescription for this care chose not to get it maybe because the employer wouldn't pay for it maybe because his group insurance wouldn't pay for it which they obviously paid for the things maybe they for who knows what ok let's assume the worst let's assume the employer said we don't think we're responsible for this so we're not paying for it so what does he do he does nothing he does nothing i don't think the commission i don't think it's reasonable for the commission to infer that a person is permanently and totally disabled because they chose not to get treatment that they feel is related and they didn't pursue it i mean i think there's some obligation  have a claim that who comes into you or comes in before the commission and says i'm coming up in totally to say what your doctor says should be more treatment well they will pay for well get it go your medical insurance have a hearing get the i would order it get it no no i'm not going to have any treatment and i want to be found permanently entirely disabled because i didn't get the treatment that i think is related i mean there comes a point i think where claimant has an obligation to do something to get the treatment that they feel is related and then to take of i mean i can see where an employer could be penalized for not authorizing certain medical care i could say i don't think this is the case but i can see where that's possible i can see what employer would be penalized for delaying treatment or delaying last time payments while the person's whatever they have to testify to and have an arbitrator make a decision that's that's what nineteen b is all about and i know you can see from the record my my prior counsel tried for years to get this case trying to get a decision what about the commission he has for prognosis from a year and a half before he testified he has a statement in that in that deposition testimony that if he comes back to me now here later since i've seen him and says i've improved  being totally disabled or precancer treatment well i think that's one option and i think the other option that i would offer to the court is that's the petitioner made his decision when he went to trial the petition decided that he wasn't going to pursue any further medical treatment he wasn't going to take that action  also decide that it wasn't going to do anything to look for work or to find work even though his own to his examining doctor said he could do at least part time work even though he's doing part time work and he's done with doing about internally but he's doing it because i think this guy's an active in doing nothing so i think the other and to me just turn around the argument you just made the employer made a decision the employer decided we're not going to pay for pain management we're not going to offer vocational rehabilitation and we're not going to do any of these things and we're going to go to trial and i didn't go to trial  not cutting off but i think that first of the question you asked me is different in the sense that we elected to go to trial once the depositions were down because we were trying to see what's our responsibility and what isn't and if this doctor's treatment is going to be our doesn't mean that they get the benefit and i use that word loosely of increased crime of disability when it's reasonable treatment or just because they take a lower paying job because that's the job they like this i mean they're entitled to a wage differential war just  that he's got you know he's got issues what i think is is fair and i what i think is reasonable based on the record is is that there be an award for time for total disability benefits that we haven't even discussed yet that certainly doesn't go through february two thousand and six i think that there should then be a finding by the commission as to whether or not and i would say not that the petition is chosen he's not entitled to any further medical care he made that decision by asking that nature and extent be an issue in this case and that the commission then find it awarded to the degree of com evidence and i think the arbitrator had it right when he said that with regard to the petitioners medical condition when this condition requires and creaming off work indefinitely under the care physicians think if you add to that as far as what dr chynoweth said the fact that the doctor said well the only thing that i could suggest is the pain management if that is unsuccessful then the next step would be to perform what he called a salvage operation which was and he described as an instrument of fusion which he was reluctant to do because he didn't just think the chance benefit would be very much and therefore it wouldn't wouldn't be likely to offer him any help but he never  part time sedentary job where he wouldn't do any bending lifting pushing pulling people in the four hours a day and very limited walking and standing and there would questionable but he didn't provide three of the six reports prior to his deposition and in fact those same three reports that he didn't provide which i only found out about my reading of this court's decision in the city of chicago case is when that happens then the test in other words when these reports are withheld prior to other doctors depositions then the of that witness that position should not be admitted at all in the arbitrator bar or the part about the reports that were not provided right he barring two of the three reports that were not provided but i i respectfully disagree with the  cross appeal on that issue i didn't know is it before us well i i don't know i think i think it ought to be but i didn't try to cross appeal you're correct records i mean so far both attorneys will talk about what they said in their deposition testimony well you're you're quite correct your honor in the medical records i think support i mean there was there were a number of  question that there wasn't a i mean dr mercier's opinion of the man could do full duty was basically not based on anything in the medical records just on what he claimed he found in the examination funny ok ok i mean yes i see what you're saying yes and that's what i think he did and i don't think that he ever had or had i don't think it was a correct or reasonable inference for the arbitrator to drop the petition was permanently and totally disabled under and he said what i would have to do is either see him again and if he's improved have enough to eat and if he's not going to get that treatment but i will not say that he's totally disabled at this time you specifically wouldn't say that going back to what you said over here i had other thing is it a reasonable inference for disabled you've another doctor his other exam a doctor saying he's not totally disabled maybe he is partially disabled i think all the doctor mishear agree with that but i think he does say he's not totally disabled he says he can go back to work and then you do get into the i block discussions that you've had pretty much all morning that i can just tell you that wasn't done here i think you're all clear on that so it comes down to this either he proved it or he didn't and if he didn't he didn't you know and i and there is nothing