see me here arguing that commission decisions are against the manifest weight so i am not here today to ask you to re wait the evidence i am however asking you to find  rational trier of them could agree with the agency in this instance and i'm referring first off to the finding on average weekly wage mr musial was unemployed history after several meetings with a company representative named newell who is no longer with the company musial testified that in the second and to our third meeting this would have taken place in february of two want to understand is there's really three types of jobs in a d c security for sales there's the entry level jobs which are really residential and a little ass step up from there but still considered entry level is these mom and pop which we call i value i'm saying if you go to strip malls it's whole quality the second division is what you're referring to your honor and that's the core dish where people already have to have a pretty wide range of experience in a t p s products which are selling them what you're selling to department stores or maybe not national banks but more sophisticated expensive elaborate systems and then the third which really isn't in question is when you were on show when you're working national accounts week you're doing security for tar all over the country now i don't want us to get  up on this fifty thousand dollar thing because that's not really where all the evidence points despite what mr musical maintain newell represented to him in february of two thousand and eight when he came into scientists employment agreement two months later and april he signed and was hired for the high value that is the mom division i don't make this declaration that he was hired for high volume sales based on conflicting testimony and yes that you resolve conflict in favor of a d t i make this statement because mr newell the previous it is true and due to the employment agreement admitted looks at it that that's precisely what he agreed to undertake page eleven a one twelve he signed today april twenty fourth it says clearly a d t s piece to our food a position of sales representative starting ending drug approval cha grade beginning as high volume sales rep and then it shows this declining commissions draw by the end of three months you're on straight commission if you go further down on the document it says transfer yes you can be transferred assuming that you're doing a good job and you have experience in security sales to score sales representatives were very do enjoy a seventeen thousand dollar base you know we must punish you giving us a lot of background but isn't this a question of fact to be determined by the commission yes it is conflicting evidence on the wage differential correct so tell us h sales agreement are you familiar with the letter that your family member gave was yes it says you're guaranteed was declining each month in five hundred dollars increment right from one thousand fifteen hundred to one thousand third month her down to five hundred and he says i don't question so that's the type of sales structure that goes along with the job in small business does it not just correct and i am you said that the core sales representative in your mind your understanding of more sales representative jobs and he says well that was a big surprise to me that i questioned him well but this is dated before you started work and indeed it is you stated able to twenty four and he gets hurt on his first day of work and m february and he says yes and then when i came in to actually take care of the paperwork your honor i was told at the end what if there was a small village he's going out of town i'm going to have to start with this route for just a little for just the time being until well when you've turned down jobs are you consider looking for a job i figured why not go with it that's why i say the worst you can accuse my client annuals nowhere to be  very worst if you want to take mr musial and his were you know he he's not he's the most honest person in the world then the worst you can say about my client is that in february a jury needs one conversations again assuming mr musial heard it correctly and wasn't hearing what he wanted to hear the worst you can say is that newell did a bait and switch but i don't think that's a reason to give him a fifty seven thousand five hundred dollars a year annual life average weekly wage when it's clear from the contract and from mr musical's agreement that when he was finally hired and this was the last act that hired him if was a jurisdictional case we would be looking at this contract not things that proceeded this is why he was hired in high volume mom and pop and i don't believe there's any dispute your hono comfortable in interposing judgment on what physicians say i've always said here to the philosophy that if you have a doctor to says i want to do surgery and you are willing patient it's willing to lie down you some other doctor says no he doesn't need the surgery the commission isn't going to play god and they're going to go along with the doctor and the pitch which i think is understandable but what you have here get moved more i don't recall off the top my head when the hearing was which we convene but it was easily three years later if not more so i really do think that's a rather moot issue what i think is important to your determination on this issue is a consideration of how what do we do how do we need abide by someone being turned into created into  feeling drug addict under the auspices of a psychometrist writing for pain medication the only support for that position that you just stated is your third independent medical medical examiner right the first two may two thousand when we took the deposition current said mr musial is on five hundred forty milligrams of cane which is just more thing she said i'm not running it for at the psychiatry stock he referred the patient to me she's the one that writes then in two thousand to mrs around the position she says he's up to twelve hundred milligrams this is dr joe blow's sure it already said i'm the pain doctor and when i administer he in the dosage ranges between four and six hundred so now we go well take over los he says he's on twelve hundred and that's in october of two thousand  the morning hours council my name is daniel paper and on behalf of the petitioner william used in this case when mr shiner first got up before you he said that he didn't believe that there was any conflict in the evidence on the issue of average weekly wage and i would respectfully disagree with that at page one eleven of the arbitration transcript mr musial was asked the following question now when you were hired by a t t were you hired for the small business division with a promise that they would try to transfer you to the core division at some future point in time answer no more were you hired for the corps division and assigned to the small business the vision for training answer the second steve newell who interviewed and hired mr musial was the core division manager the arbitrator found this to be an important point the arbitrator also found that it was significant that a man with twenty years of sales experience would be hired not for the entry level small business division but for the more experienced corps division now mr schneider is quick to point out you know well they didn't know anything about security systems except that in the record the petitioner himself testified that of the fifteen to twenty people who were employed in the corps division not all of them came to become pany with experience in security systems what was essential was sales experience and that was that's what mr musial had so his testimony is i just quoted to you is entirely consistent throughout the evidence is conflict that i'll be the first one to admit you could read the contract that was signed by both parties and you could conclude well this does say small business division although there is a reference to core division there's a reference to being paid under the core division plan who controlled all that evidence they responded controlled they drafted that document they are responsible for the fact that those documents are vague and conflicting my time comes in gets hired gets turned on his second day at work so what does he know about what people in the core division make he doesn't know anything other than what he was told and that's what he testified to now their documents and their data although they were they did not produce core division figures at arbitration i believe that my opponent conceded in his brief there at the fifty to one hundred thousand dollar a year figure was accurate for a core division employee so the only real question that we're fighting over here is whether mr musial was a core division employee and that's where we look for the comparable wages for small business division the evidence on that point is conflicting and you're honest this is precisely the type of factual dispute that the commission is empowered to decide the original arbitration decision was not cavalierly entered into it's a twenty two page decision it's extremely thorough it's comprehensive it's detail it highlights the evidence on both sides of these questions could be arbitrated to them and that decision this is precisely what you would want the commission to do and the arbitrator to do is to weigh these factual questions now that the medical issue in this case is is is sadly tragic and i would i would start out by saying that i believe what my opponent is making is a section one thousand deed argument which i believe is subject to the abuse of discretion standard i don't think it's manifest weight in order for him to prevail he has to show that the commission's decision represented  of discretion when you have four physicians on one side of a medical question including the respondents first examiner in the field of pain management and juxtaposed against that only a subsequent examiner i don't see how you could say that the commission's failure to adopt that subsequent examiners opinion was an abuse of discretion mr snyder the one thing i do agree with what he said is these are inherently personal decisions between a patient and his p and the commission should be loyal to intervene in that in in that relationship we've got a condition that all of the doctors have suggested is incurable there's no cure for our city chronic regional pain syndrome so all they're trying to do is to treat and address the symptoms mr musicals morphine levels are unquestionably ha when i would point out that the reason why we are where we are today sadly is because the responder a d t did not authorize the treatment at the time it was prescribed yes when we got to arbitration mr musial pointed out that he was no longer interested in the spinal cord stimulator unit he did say however that he would consider he wasn't sure about the morphine pump but he didn't want a spinal cord stimulator unit that was two thousand and five at the time those treatments were prescribed back in two thousand and two thousand and one when there it was unanimity of medical opinion that this was what was needed mr musial wanted that treatment and the respondent would not write we have four doctors saying that he needed a spinal cord stimulator unit they wouldn't authorize it and that's when they decided to go to their medical plan and send them to dr blonsky and now we're off to the races and now we've got a guy who's morphine levels are immensely higher than what they otherwise would have bet it's sad we can't go back and replay this golf shot we're  stuck with where we are right now but i don't believe that we are dealing with a reversible issue here for the commission merely to have adopted the opinions of those treating doctors and eighty's initial examiner  consul misconstrues what i want this to do in terms of medical care and i'll be brief on this section of the rebuttal historically what transpired whether it was two doctors or three doctors back in two thousand and two were two thousand is not where we were in two thousand and five where we were in two thousand and five is with dr dubrow last be unknowingly prescribing eight hundred milligrams a day of them try to detoxify him and that's all we want i'm i'm fascinated however by the wage issue not to lose the forest from the trees but i don't believe there's any conflict i don't think you can explain away the employment contract mr musial could say will he once in february eight that be would talked about offering me this job but that's not the reality of what transpired you can say well he wants well the intent they were they actually did i or me for or but they were training me in the other and paying me under the other they weren't paying a minder who were i don't know how much more you would possibly need to deal with the reversal on manifest weight but i can read two more short things from the arbitrator was really the commission's decision the chosen one amount of confusion and conflict in to the knowledge possessed by the responded at the time payment is made in essence it was the respondent not the petitioner who possessed the evidence which gives rise to the determination that the petitioner has an eleven hundred twenty five dollar wage with when providing d regard for the wages of an employee in the same classification arbitrator merely adoption so no basically he's saying payment of compensation is an admission of liability to heck with any burdens of proof  because mr musial doesn't want for any and then you'll have to scurry a statement from the arbitrator of paychex the petitioner testified that he was hired as a sales representative who provided a written contract is the arbitrator the contract  consistent with the petitioners testimony and they had a flat and he was hired in the small business also known as high volume division we transfer rights to the corps did i respectfully have to see what else do you wire on this issue i don't know why my client was paying him as if he was making fifty seven thousand five hundred remembering this was he injured on the second day of his job but we do have an employment contract we do have evidence as to what was aid while he worked as a came back to work briefly we understand they sent him out to some residential place don't look at an installation not something you would do for somebody in war and we have mr musicals home missions a good suing everything he says is true he was disappointed that he wasn't being hired for