good morning your honors my name is valerie tyler and i'm here on behalf of the employer lynch construction also present with me today is miss kelly more trial counsel for lynch construction may please the court counsel the critical issue in this pill is the weight to be given to the opinions of a physical therapist regarding an employee's ability to return to work with permanent restrictions in the cause of prior commission relied upon the permanent work restrictions u itself obviously does not measure characteristics such as pain or the ability to work a given number of hours so the f c eat provides functional limitations and items such as lifting carrying squatting but for the critical issue in this case which is specifically the ability to work only two to three hours per day that is not something that was measured by the f c e itself that was added to the f c e permanent restrictions and particularly the impact of the work functions and employees future help which is part of what in s c is designed to determine what type of work an argument what about doctors on those of who support him but we have with the dollars there's no question your honor that there are significant physical limitations and restrictions on the employee in this case that is not subject of dispute but if you read the report of the vocational expert for the employee you will note that the most critical factor upon which she relied was the fact that the employee was only able to work two or three hours per day and faction repeats and almost three consecutive paragraphs how significant that time limitation is in context of her ability to work with him in order to find see and did say that he believed the two three hour work restriction was unnecessary you did not even render an opinion about how many hours a day he could work i would he called it a homework week i don't believe he put a specific number of hours i it specifically i don't again think that he quantified it but i believe he testified that he again would only be able to work part time or last and that in fact there were some indications he did not believe that he could work at all but certainly he testif the vocational expert testified that there was no reasonably stable labor market backing up there are two basic ways as you know to prove a permit and i'm not going to talk the first is a diligent but unsuccessful job search and i believe that in this case there is no diligence and on the success of john's his testimony was that he looked through the papers and then contacted the fourteen employers that respondents hope ational expert provided to him i believe that does not constitute a diligent and unsuccessful job search so that we got to the second problem by age ability education experience does this individual is there any reasonably stable labor essentially sent terry with the main element beyond that being the ability to change positions with some frequency she did say i can find him jakob's and outlined a number of those positions some of which even included his prior construction experience things like estimators where perhaps he would be on an office of a construction company taking phone calls and able to sit and stand as a phone calls came in and he was reviewing plans and running  etc by contrast petitioner's vocational expert made no attempt to because she relied on the two to three hours per week so the question then assuming that the job search is not really an issue in the case the question is whether or not they prove and why don't all of the testimony what that there is no reasonably stable labor market they prove that this gentleman is disabled and has severe restrictions absolutely but they did not prove that there is no reasonably stable labor market and the reason they did that is because they again tomorrow in this league relied on the two to three hour restriction that was imposed by the physical therapist act upon further inquiry it wasn't even part of the original second half c e that was only interest when there was an inquiry specifically addressed to her by counsel or petitioner well information the type of expert can reasonably rely upon in reducing opinion i don't believe so your honor because there is absolutely no explanation and the record as to how that two or three hour limitation came to we were talking about wilson versus clark challenge your honor but we did introduce the evidence dr so who said that that was not appropriate so the question has and the whole range of experts you have a physical therapist conducting a functional capacity evaluation case then it's up to the commission commission to decide how much weight it's worth but what we're arguing in addition to that your honor is math so much the expert qualifications but the sheer magical nature of that kind of restriction of two to three hours that it is by definition a medical kind of question that requires a physician who can a sas what is the impact of working to do three hours per day and this individual's how off and time and the injured by the heart and i believe that the commission inherently recognizes that because it goes to great lengths to assume that doctors who are would have agreed with these restriction if the commission itself did not believe that these are inherently medical judgments then why didn't spend an entire paragraph in frank and assuming that doctors who are would in fact agree with these restrictions since he was the one who ordered the af c e o is there any authority the commission cannot rely directly on the results reported if c e without a doctor showing glee with these results no your honor this appears to be a question of first impression in the state of illinois and that's why i cited to the various other districts as instructive at least has two other courts opinions on the value of f c e s themselves and what to what degree they can be credited on standing alone and then as interpreted by a physical therapist and understanding that there are obviously no way binding on this court that general consensus is bad and i believe one of the courts called it both object y but also inherently subjective because they are limited by things like the two are employees report of subjective pain so generally the courts have not look favorably upon taking s t easy out a a proof outside of the interpretation by position and they have not even looked at favorably on the interpretation of it as see by physical therapist him or herself  employee relied were basically founded on this two to three hour her day work restriction as shown by the pope rehab persons report and both of ok rehab persons reports so if you eliminate that on toward restriction if you eliminate that improper restriction what you have is a gentleman who has severe restrictions but whom at least my actually boat people identified a possible job positions for this individual employees only one person also identified multiple sedentary job spent she believed he would be able to do are you agreeing that you really didn't provide you didn't present any evidence that it's one of his regular continuously available to this point i mean you're hanging your head in the fear of a bird to be shipped and you know your enemy would say that the labor market survey demonstrated at the that is correct your honor but if you look at the sequence of these events this was all happening within a very short period of time and once the restrictions were interpreted a physician this matter was taken to trial within literally weeks and there was no appart to vocationally rehabilitate him because there was no request and actually there was literally almost no opportunity if you look at the sequence of events are the patient person and able says we would be able to place him in these jackets and then there is some reference in her letter to counsel that says i am awaiting the this pending on the outcome of this plan to give a shit i'm waiting for you to tell me then month the employee is here his treating physician within another's five to six weeks he's a b f c e and then within five or six weeks we're going to trial with no comment by the treating physician so i believe the burn did not share partly because the employer was never given the opportunity to ship that heard him there to accept the shifting of the burden based upon the sequence of events in this case so all because he employed failed to prove either a diligent or unsuccessful job search and because with the inclusion of the erroneous compensation cases when reports are going in just a mutual agreement that each side will not object to the others and i believe that's what occurred in this case we agreed not to challenge spears bakery not to challenge ours ok but at this late date challenge a basis for an opinion given that perhaps if there was a valid objection to that basis some other bases could have been presented during evidence  at the beginning of the trial we offered to do have we committed on a record that we would pay for an additional evaluation by doctors for and we were paying him ali we're paying him play  benefits at that time it was not our decision to bring this matter to trial so to the extent that there was again this was all happening in a very short sequence of time to the extent there was matt additional testimony taken and some of these matters explored be a deposition or the presence of witnesses that is partly a function of how some matter came to be living gated in august twenty thank you injury we don't need to believe though that the factory manager is all the doctors both doctors say that he still needs another knee replacement so this isn't a feller that has as a better strain and some restrictions two three hour day workout of the commission relied upon first of all it's not just in the agenda report two to three hours it's in the first half c e that was john a different facility by the issue is the credibility of the petitioner the issue is the credibility of the functional capacity evaluation the commission found them to be credible not to come up with argument about foreign jurisdictions then that state that dempsey is are not reliable i find that to be disingenuous because they didn't object to the mc easy going in and they didn't don't quite honestly justice holders i don't believe there is any dispute as to the disability i believe when dr stone says he can work as tolerated i don't know exactly what his tolerance inside so he's kind better off i'm that you've got the irish trayner listening to him same that i disagreed with the else to the extent that i might not be able to work that march so to do seven courses in two and a half years and he testifies to the problems in one that he can only do one course at a time and then i believe in the summer of two thousand  letter from their jobs through their vocal person says here's what we'd like to do but they never do anything they don't fill out a form they don't file anything with seventy one ten point ten but since you know we shall work in formulating a plan they don't do it so oh we've got to have a dispute as to folk they say here's here's the labor market survey we go  everyone could be the commission found that there are there vocus usman was disingenuous because there were jobs and then it would be on his restrictions and nobody offered him a job they didn't comment on it they come in on the first page that they find these restrictions preclude him from from working and then they find that vocal motive is credi were there was no way to talent he can't work in eight hour day well had july fourteenth two thousand and ten report says what he could do after one hour and fifteen was shot after an hour and fifteen minutes so how does that translate to the states that when we don't know how we would be if you were headed for eight hours i believe there was a valid assessment now the other thing that we should keep in mind is what was in dispute it was nap disputed that the amount of temporary total disability benefits or pages to the statement of f argued that i didn't cite where the lawyer we used to take them back to work it's true but the stipulations states between the parties then he wasn't back at work and they were paying temporary t disability benefits so i apologize for the back they argue that i failed to cite in this instance your honor it is a question of weight and a question  simply and i'm not a series of measurements on sometimes just resulting from being put into a machine i would suggest that those missed those machine numbers those percentages have considered standing alone without interpretation of someone who understands the implications of those numbers most specifically the physician who has to then a sask what the impact armor i say and basically they have a different person saying oh then here are our jobs we can do i would like to address the idea that my client mean green men with respect to attack me it's true he did not take him back but i think everyone is aware of what happened to construction companies between the years two thousand and seven and two thousand and nine so to the extent that there he was capable of working a greater number of hours per day so in the sequence of events this part of this report was generated in two thousand and nine in which she said he's a perm total there's nothing that can be done but yes i was still treating and in fact another surgery had been recommended there was no reason for the employer to begin vocational services at the point in time because probably no he was having another surgery once it became clear that answered was rejected responding initiated the process in then we went to trial so the idea that there was ample time for responding to engage in vocational rehabilitation is that supported by the timeframe in this record particularly where as i said petitioner continued to treat and we have a complete absence of opinions by cocker s'pore about whether or not this gentleman should be released to restricted work and now are now back to square never commented on any restriction so it was the employer at this point to have to provide some medical evidence as to the only by a technician is contrary to manifest with