you hearing on june twenty first two thousand and eleven or that was if the decision was made by having that on mr carlisle did not prove that his current condition of opium was causing related cheaper work accidents even march fourth two thousand and five that include any evidence taken the arbitration hearing including the claimants test morning or any of the medical records we have then let's take a moment tell us if it's not in the briefs and it was not supported there's a problem isn't  thousand and twelve and the findings noted there in by the commission included but not limited to that mr carlisle failed to prove his current condition of bill being was costly we leave it to you that the work accident of march fourth two thousand and five minutes we hold that the original decision was based on substantial factual evidence including but now i'm limited to medical testimony records and the witnesses the credibility of the witnesses and of a sudden we don't have that testimony decisions of the arbitrator the commission and you know i'm looking at i'm looking at the appendix and it indicates that  from you know the testimony that was heard by mr carlisle and i looking at that evidence even at what the commission based their decision on and what they put in their the circuit court when they were looking at i mean clearly i know you you stated earlier i think it's clear that the sudden yeah they substitute their judgment for and it's clear they said and i think paragraph one of the commission determines the credibility of the witness and alaskan opposite conclusion must be drawn and they've placed a whole host of reasons that appears to be that they're weighing the facts and not substituting their judgment and then when we look back at the initial commission decision they lay out several backs which are sufficient basis for their for their opinions that they drew finding that his condition of current mr karr last condition of bill being was not nine sought medical treatment to be lived there after and there was a witness cycle operative that that was with him that day so it was a very heavy tire there's two of them that needed to lift the tire and they discussed lifting techniques he saw immediate treatment there case because he would never got deployed he would never been able to walk for miles with the pass and not to mention after this guy's accident he worked for he worked for five employers he went to work for wal mart quit that everything thirty day notice mcdonald's what if sarah says he had to quit because of his pain and he goes to work for the burger king i don't know what the difference is between you know his job duties but i assume that they weren't much of painted white stack not to mention he's in the national guard you know he's got it they've got to go to guard duties and whatever that entails and he was capable of doing that clearly if he was in excruciating pain i don't think he would have them be doing guard duty i mean think he would have been a candidate in any jason carlyle in this matter today and counsel for the motion to supplement while i hate doing this i would have to oppose it on behalf of my client and would ask that the final decision on remand be affirmed as presented testimony and arbitration so that you represent in the court what you were walking at when you made reference to for instance the record of ages seven ten seventy one to ten seventy two commission to circuit court back to the commission back to the circuit court and then should have been filed why isn't part of the record that is the part that whenever we did cited to it we had returned it to the appellate court we had checked it out as part of and that is something that i m that's why i don't understand why it wouldn't be there which it in that's why i don't know because we know that we would have had to check it out from the appellate court because there are some extra pages some legal pages that are numbered  reference as well within our brief so if it is simply something that had been administrative leave misplaced but obviously i would withdraw my objection so it's not i just don't know where it went to be quite so we don't know either i don't think we can decisions that we want to talk about one would be commission decision one and commission decision to as you saw even with the dissent on commission decision one we believe that it's against the manifest weight because regardless of the w testimony there's absolutely no medical opinions talking about a subsequent intervening event all three of the doctors both treating doctors as well as respondent the employer's own independent medical examiner all said that the injury to the back mainly the same killer tear had predated his deployment to afghanistan and so in this situation what we believe is decision oneness against the manifest wade decision to after it was remained it is now in discussions also as was seen in the previous argument the circuit court in this situation judge crowder during her reversal of this one out of her way to say i am not really weighing the testimony of the plane or of the employee nor am i really weighing the medical evidence what i'm saying is as i look at the medical evidence there is no evidence to support this conclusion but there's a subsequent intervening event now as you've heard today one of the things that's been discussed is credibility of jason and jason's credibility is limited because they're not saying that he lied about the accident they acknowledged it was an accident they're not saying medical causation because really that's not his that's the doctors the question is whether one form when he that he completed on deployment and more importantly one box of one form that he completed on deployment when he checked he was in excellent health with that overrides and negates all of the medical testimony that said this condition was there beforehand now for us the timeline becomes very important as you've heard the accidents are undisputed march fifth fourth two thousand and five december eighth two thousand  enters a slow back injuries were compensable medical benefits were provided he had to stop his his work at wal mart because when he would try to load his back he would develop symptoms he tried working in various locations you heard of all the different places that he tried to work at but every time he would load his back meaning standing on concrete for durations lifting doing anything of that nature it would cause the symptoms to come back by october of two thousand and seven that's when dr van r says i think you've got an annular tear i want to disco gram to confirm this for surgical basis october of two thousand and seven as long before he was deployed it becomes important because wal mart refused the testing they had no opinion countering it but they refuse the opinion that's when he was given his deployment he was told in nine months you're going to be deployed you're going to go to afghanistan so what did he do he started losing weight he couldn't exercise so he was almost starving and stuff but he lost sixty pounds why because he said i'm not going to leave with their lead like i sleep without me being involved with this this is part of what's called unit integrity so whenever he fills that's pretty common national guardsmen to do it all the time they minimize their injuries because they want to be deployed ironically dr van ryan the guy who r t a had diagnosed the annular care he said i see it all the time i'm a colonel this is what i do in these medical evaluations it's called unit integrity he doesn't want to be left behind and so he checks the box that says excellent health so he goes to afghanistan while in  he lifts the tire when he lifts the tire he has back pain as he describes it it's the same back pain that i had when i worked at burger king mcdonald's but at the the air the all the other locations when i load my back hurts he comes back home he sees dr van ryan and this to me is the most important dr conrad says your physical examination is the same the location and the level of your symptoms are exactly the same there's no intervening event dr leet the surgeon says the same thing there's no intervening accident this is just a continuation of this annual or tear and the most important part is when they sent him over to dr grange respondent section twelve examiner dr grange says he had an annular tear before this work injury he was providing the history of lifting the tire and dr de grey it didn't cause a new injury so there's no medical supporting the word compact and so there's nothing here that's breaking the causal chain so the bats where we stand on all this so where did the commission come up with their solution where did they get their evidence they based it upon a hypothetical given to dr ben ryan and dr levy they were asked both doctors and deposition were asked to assume jason had no low back symptoms when he was deployed normal examination prior to deployment when he looked at the tire he had increased low back pain to the point of needing medical attention all both of the doctor said well yeah that's an aggravation but it's not an intervening accident it's just an aggravation because both of the doctors then spent the next hour and a half of the deposition saying he didn't he wasn't symptom free and in fact the month before he was seen at the v a before you check that box saying he was in excellent health he was seen in the v a saying i'm have a blowback problems so get low back symptoms are already noted in the become more surgical and that's why dr van wright said if the physical examination findings in the symptoms of the same both before and after deployment i don't see a new accident it's just a continuation of the same event and when that's what the commission's pledges onto and saying look there's a subsequent intervening event but it's a hypothetical it's incomplete and it's also a hypothetical that both doctors said that's not what i'm saying if you're g symptoms his examination was normal ok that aggravated but given the fact that he had low back symptoms and that i am normal physical examination this is just a continuation of what i saw and i'm told for two thousand and seven long before he was deployed that's what judge crowder that's why she reversed this not based on weight of the evidence but based on the fact that all of the medical experts were saying there's no intervening accident all of them are saying this is just a continuation including respondants own doctor dr grange so that's why we're asking the fifty three men who are from the commission he affirmed the commission to not commission this commission one has absolutely no medical basis for its conclusions and now in remand order to commission to it is lays out the benefits to be provided and everything like that so it makes it easy we don't have to send  complaints at that time there was no surgical recommendation made and it wasn't till he returned from you know deployment and after that was documented history that he was lifting attire inside medical treatment afterwards at the v he goes to fort bragg and he does his training he's carrying backpacks through their training part of what they're setting up camp so they're doing a lot of things and if this guy was in excruciating pain like he wanted to lead everybody to believe i don't carlisle never told his doctors about that aggravating incident that occurred in and afghanistan and the incident with being the tire and they admitted that you know should should he have been a sent them at the time whe deployment has an accident lifting a tire and increase in pain and seeks treatment that is an intervening act that's an intervening accident aggravation there is a change in his condition this guy i for this gentleman it was an intel he returned following deployment there is evidence of an intervening accident where in the psych treatment and there's evidence that he was a cement symptomatic prior to th