of my client the mr american failed to establish a causal connection between the work accident of september eleventh two thousand and two and his rotator cuff tear the commission found to be work related we believe that's against the manifest weight of the evidence we believe that he will agree that the opposite conclusion is clearly apparent after you hear the argument read the brief and that you will reverse the industrial commission there is some undisputed facts in this case there's no question that prior to the injury in question mr burke when did have a prior right rotator cuff repair  his counsel in the brief describes it is a massive repair in guatemala he started working for s and c electric on feb fourteenth two thousand on august thirteenth two thousand and one he came to  occupational help apartment complained about problems with his right shoulder he didn't go to the doctor his choice and we had that time put him on a restricted duty no overhead lifting no lifting more than ten to twenty five pounds that restriction according to the occupational health part remained in place until september of two thousand one   temper eleven two thousand and one mr merrick when was working he bent down to pick something up in the process of getting back up he struck his right shoulder against piece of machinery that's not the he did agree that he did sustain an accidental injury and that in terms of the medical care he was initially seen in health service was complained about mild pain and was sent to st francis hospital him he found the last of motion he found a surgical scar from the prior surgery and he found significant after feet dr schlumberger opined at that time that his condition was chronic and that the entropy that he found could not develop over the course of a few days and m r i was done september sixteenth two thousand and one that m r i was five days after the injury the radiologist interpretation was he was unaware of any of the prior complaints to mr merrick when may in august of two thousand and one he was on aware of the fact he was on restricted duty with restriction of no overhead lifting he we took the the m r i finding that there was retraction of the edge that takes a long time to develop not just days he testified that the m r i findings also reveal ostro fights in those take time he actually was he actually got the saw a reenactment of the injury that was demonstrated him with the petitioner raised up instructors shoulder and he said there could not have flaws the findings on the m r i or at the time of operation he did review the operative records and any answer to the question can someone function was significant here over a long period of time he testified yes it was chronic because the deltoid muscles become stronger and compensate he said that when you have this type of tear that's existing for a period of time he will develop arthritis dr levy was only able to find chronic changes he couldn't find he was confronted with his own operative report i think this is very work and he couldn't identify an acute changes he was only in able to identify chronic changes of that was that was his testimony right here when he was confronted with his operative report petitioner's counsel confronted him with his own operative report and it's on page nine zero seven of the record he could not identify prior restrictions nothing about the prior complaints when you look at the commission's decision they only mention his testimony were he says that the operation showed chronic acute big nor in his acute which they adopted and chronic he was only able to when he looked at the after report show crime when he testified that the injury caused a massive rotator cuff here he assumed that there must have been some duction of the art that's his testimony and that's what the commission adopted if there's no testimony by the petitioner of any abduction of the arm there's no medical record to support that he had talked with the arm every place where the commission cites to said that those changes with their for a long period of time in dr levy contradicted himself on his opinion when he actually looked at the operative report he could say one thing when he's testify and credible but he's contradicted by his own operative report and he's also contradicting himself remember when he says when he second guesses themself on his opinion the commission didn't quite hear this hear he says you know it could be due to the changes with their prior could have caused the rotator cuff he's inconsistent in his opinion is all records and documents and diagnostic studies show that he's inconsistent the commission ignored that inconsistency didn't address that now i argued in my brief and you recently decided you know i argued to extra screening in you recently decided to host the case and in that favor of the petitioner mr morrow peak and there is evidence in the record that gives a rational basis for the commission's decision that the incident of september eleventh two thousand and two w to be saying however that you get to work this is on the other side you've got a levy is the treating physician but levy is inconsistent you can't predict some self how does that what's your reaction to that well  if let's assume for purposes of argument that there is a contradiction i'm not trying to be with that but let's assume it is that's something for the fact by her to assess and decide whether that testimony survives or  numbers where the whole solution if there is a point but here we have that circumstantial evidence judge and i think it's a it's a real chief feature of the probe into beauty of the claim its case you can answer the question as to hat or you know it isn't our theory of this case but there's a repetitive accidental theory that he does time movements of petitioners work to the possible development of this type of the college so that would be consistent but actually i don't know how respondent benefits from that below if it's another cause outside of the cute pause with respect to his opinion that there was an acute element to the pathology surgery it may be viewed as inconsistent that he's not able to testified forth or directly with respect to that question posit circumstantial evidence of this case so something happened on september eleventh two thousand and two that they work celebrated the undisputed pathology that was residing in their right shoulder mr  to their right shoulder there was one visit better than one year prior to the date of accident it involved the right shoulder and much to you've heard much testimony very much testimony concerning that day i never really i mean i don't think the commission voted of much consequence especially with the legal framework that ok you went back to his normal job he did when he will over time so what's the significance of that the law allows compensation for any a groups to the rotator cuff tear that's an issue here he could still do his job and it still wasn't posting him pathology so i think the evidence is very strong absent the contrary expert doctor admitted with fear prior to the injury and question the commission cherry picked certain parts of dr levy's testimony well looking at his complete testimony and his complete testimony negates changes yet when confronted with his own operative report was only able to find chronic changes levy it mid during his cross examination get us through fights take time to develop not dace he if you took his entire indian context with everything he said it's clearly apparent that the opposite conclusion is true that this was a preexisting condition and he questions himself at the very end when he says well you know maybe this is a maybe it's the repetitive nature busy job well there's an obligation to pick how you're going to try your case this was tried as a specific trauma you have the physician who they're relying on in the commission doesn't even know that we questioned his own opinion i think it's clearly against the manifest weight of the evidence i think that the only conclusion you could draw based upon all of the evidence and even if you just take dr levy and look where he contradicts himself he's not credible what he says in one sentence is contradicted by his own opportune or by his prior admissions on cross examination or by his well maybe i'm wrong maybe it's the repetitive nature of his job this is a case that should be reversed clearly opposite conclusion should be drawn and in terms of just just out of interest  the extra scrutiny if you look at the amendment to the nineteen eat you will see that no one to tional evidence was allowed after december eighteenth one thousand nine hundred nine and it was after the three cases cited by the supreme court shouldn't the fact finding or credibility of witnesses be left to the actual fact finder the person who hears it isn't that how we do it in the civil arena arbitrator andrews heard testimony over hours and days he had the opportunity to look at mr merrick when it look at doctor then go on from there but don't want the supreme court cases here at all to respect those were all decided when the commission did actually hear evidence and nineteen he was changed after those decisions shouldn't that be something that's reputed can't and shouldn't we give back to the actual fact finder he ability to judge the credibility how does the commission judge someone's credibility by reading the transcript counsel there was always question i think you for your time