looked at the doctor's deposition testimony and said well it was the same testimony that he gave in the underlying arbitration so that ends that is and from that day forward we have no further legitimate controversy and i don't think that's so to say that that doctors assertion on his part pinions is the end all of that fact question when we had an i had me that came in and said no i disagree i disagree for these reasons i think that's wrong and that violates reynolds you know reynolds says i don't have to be right when i rely on a doctor's testimony opinions etc the commission doesn't have to adopt those but the fact that i offered them if there's a reasonable basis for those means i don't get subjected to penalties and i remember when we offered a doctor a doctor handed is the one who criticize the findings and they were perfect findings but he criticised the findings on the on the psychological aspects and says i don't think that there's a legitimate psychological problem here i think there's an that credibility or lack thereof affected whether or not he had a continuing disability because remember my standard in that motion is whether in he has a continuing inability to work all this goes together so that's why i say and i'm harping on the credibility aspect here whether it's a o the fact he didn't tell his doctors about it the fact it misrepresented on the license where he lived the fact that he was able to perform that work all that stuff goes to the whole argument that we made that this guy is not credible he's not credible that then  that's one thing but to look at this is say what we disagree with you now we're going to penalize you or we're going to hold the penalties in this case i think that's wrong and that's what reynolds tells us is it in that case we put on an offense we put on medical and here we have a lot of medical we have a lot of other evidence was it reasonable i think it was well that's reynolds and that says it does eighty five hundred dollars in attorney's fees goes out the window in the roughly nine hundred fifty dollars in costs and i know that is it sounds like a lot of money but it's the principle of the matter and it's  understand your position on the issues with respect to the propriety of the of the whether or not we can reverse that i think we got some good arguments this it crossed that threshold and that's your call but i think on this other issue on penalties i think we really against his client for seeking these medical opinions and obtaining the evidence that's not accurate what is accurate is we have no objection to him obtaining medical opinions mr brisky appeared for all three examinations we did with with the various doctors throughout the years after his initial arbitration hearing what's interesting here what sets this apart from reynolds is here the employer bears the burden of proof this is initial arbitration hearing where i have the burden of proof here respondent brings this motion because it believes it has a good faith basis to prove by preponderance of the the commercial drawbar well your honor there's no specific in evidence in the record on that issue but from the practical standpoint he didn't travel to the genius to do it he sent in the form  why but because i did i can hardly i don't recall that part of the record i thought there may have been some testimony that he always remain hopeful that he would be able to return to work and if it isn't i polish your eyes and i don't want to mischaracterize what's in the record your honor so i mean that just offers a possible explanation for why he would do it there's no evidence that he attempted to work b b the video the original here exactly your honor and that's and that's the crux of my argument is that there's no medical evidence subsequent to the original arbitration hearing that this that this man's physical physical condition or psychological condition change were proved so then the only other analysis we can perform is looking at the vocational aspect of the case so first example hypothetically if we had a player who was deemed totally probably disabled and then subsequently maybe they went out and got a college degree and then could perform some sedentary job or her desk job or something like that that maybe before they were manual labor party plea a petition that motion like this in that instance would survive not with no change to the medical situation but a change to vocational situation here in this interim worker obtained additional skills and knowledge or employ or maybe even employ and that's and that's exactly the  burden that employer possesses employer didn't come in with a vocational expert who assessed mr pretty and said well you know he had taken these skills or he got the skills now and you know with his physical limitations i think he's employable so morbid you know be ott questions that we ask total permanent disability but here there was none of that there vocational evidence is the issue about the license and their argument is because he renewed his driver's license by submitting an application he's employed i'm going to throw something out here and i'm going to shade the more heavily towards the employer just to kind of make but you have this very strong willed person not actually working but making statements to that effect sending that signal and what i'm wondering about is of the him from the employer standpoint is  reasonable for them for the employer to discount the medical opinions that are coming out saying this guy can't work focus solely on the statements of the employee that yeah i'm penalties portion of this you know how much stock and they put into the employer the employee's words and conduct here because i now will get back to the facts of this case the application for the renewal  less they claim it has it is a licensed medical doctor i don't think the i don't think they have beat the expertise to offer that opinion because we're talking about physically whether he's physically able to perform the functions of of any occupation that's at best it's a first issue an obviously if one is actually doing it it would be the best evidence and that would undermine a medical opinion to the contrary but if you're saying claimant versus licensed medical doctor you only have a burden of proof when you original our tradition up to the original decision and of course the employer can rely on whatever medical opinions they have to deny absolutely anything in this case that's new my argument is not in fact he possessed it the same license at the time of the original arbitration hearing and that's another that's in this record and l i may about the if you weren't of the fees and cost there were no penalties awarded here it's fees and costs from section sixteen from a policy consideration if the commission didn't award those fees and cost here essentially employers then are given the incentive to continually file and prosecute these types of motions in cases of total permanent disability which would have the effect of the claimant having  disability benefits those then receiving to routinely continually fund its legal defense of these motions thereby essentially and effectively reducing or eliminating those benefits for the claim of personal use sort of time limit exactly what prompted this entire course of litigation except it wasn't his statements here this is actions and actions speak louder than words here's a guy i don't care if he didn't read all the lying when you sign something a new poll he's holding himself  p i do not go play technicalities here common sense that this guy signs and all himself out as a somebody able to drive a truck in virginia and the problem is when you look at the facts and are lying why did he even misrepresented what he was doing when he penalties and we say were we reasonable to say the guy's not credible all this stuff comes out long after the arbitration is over it's new evidence it definitely shows he's he's misrepresenting things he's the line then we find out he says it is deposition  arbitration testimony that i rarely drive i can't hardly drive one doctor says you know he could find a way to get to and from work as he could work but he can't drive we find out he's got a ticket driving we find out that he's going to videotape it driving he's misrepresented things left and right in this case and so we definitely had a trigger point in a basis to attack this and yes i do think we can at some point you've got to be able to look at a person and say your words or your actions are inconsistent with what these doctors are saying attorneys fees but the penalties they were awarded based on doctor transfers deposition that was the trigger point they're talking about the need and they even acknowledge that if it weren't for the need to be able to work in the brief while we you can't just say because the treating physician are the expert they used offers the same opinions as in any lying case that the employer is automatically done that doctors not to try or fact the commission is and that's what the commission said here is it does doctors a point we'd have a different argument and your comments i think would be much well suited to this decision but we did we have dr walsh's testimony and opinions and that was the basis of the panel it wasn't because it psychiatric