may please the court counsel good morning my name is joshua were golfing i represent the apple want mr jose noon yes if i may please reserve five minutes forward little you will the reason we are here today is whether or not the circuit court heard in finding th  the standard in a reviewing court is not whether the court may have reached the same decision but rather there's sufficient evidence in the record to support the commission's decision now it's a function of the i p c c to decide questions of fact and causation the judge the credibility of witnesses and result can put the medical evidence the commission's decision is a well thought out six page decision finding causation in this case issue number one so would the circuit court of correct here the circuit court basically we waive the credibility of the claimant the circle went off track because that's not within the province of the circuit court right the commission is made is the finder of fact the commission is the one to determine the credibility of witnesses to resolve conflicting medical evidence and determine t only was this because his position credible but was also persuasive as expressly within the province of the commission to decide the circuit court coming back and excuse a time to play monday morning quarterback and we weighing the evidence and finding credibility he was terminated right by his employer at the time that he presented to say nothing about hospital he did not have money he testified probably did not have money he did not have insurance he testified credibly that he did not have insurance further cross examination was the man who was in charge of my client he's the one who my client reported the accident to which minute is spewed accident is not skew notice is not speech issue we have here is a causation issue credibility determinations are made by the commission and the commission bolsters their decision with specific findings of fact the order for the circuit court three verse that they must find that no rational trier of fact could have agreed with it's not simply a rubber stamp  the position is credible is it can groups with his medical records now they have police going to tell you the mechanism of injury is different all across the board in all of his doctor's visits if you look directly at the testimony and directly at the medical records that's not accurate testimony he was lifting machine over his head it took a few questions to elicit that response simply because there is a language barrier and you don't understand the question as attorney was asking he was lifting machine over his head and a machine would behind him i just feel like this because you just heard on the record on the record so reflect on what you saw after pandya the first doctor he saw the day after he reported to work injury from the day before there's nothing about mechanism that simply work say in the hospital is essentially the only medical record that does not contain the same mechanism of injury as a fisher's testimony and also the other doctors c n d says six months prior approximately he fell at work ok if you look at how the petitioner reports to his doctors how he was injured his shoulder fell back who was in st anthony's murder scene was there a translator there might have been there might not have been they might have done as best they could i understand spanish i can't speak a lick i'll tell you that right now you seem to claim it is only fluent in spanish he's fluent spanish the consul tell you well he answered questions no in english he could be just like me he had to testify with the aid of a translator spanish is his native language so during his position visits there was one visit where an interpreter accompanied him but for any of the others who was there an interpreter i don't believe there's evidence in the record to suggest that i do know that there was an interpreter for the independent medical evaluation as required by the worker's compensation act so the issue as to whether or not he has a person of the events the the inconsistent histories that have been pointed out could be due to the language barrier it could be due to a language barrier the commission found to express or to be credible after reviewing the totality of the circumstances and after reviewing the record as a whole on that are only two commissioners sitting at the time of the hearing which is not brought up by the parties not objected to by charges jurisdictional it we have an obligation to raise it sure is fictional war requires three commissions quite a majority of i'm worried about the communications i was sure worried about whether you just missed putting it into your appendix if the parties are reading with there is no third signature on this commission decision there's another issue here and so w expediency they made this decision when there were not a facility for that the new commissioner says i read the record i talk to the other commissioners and i go to a book or i post the way the commissioner is no longer your votes but there is always the third signature we then issue went to the supreme court and whether you could do it that way in supreme court says you if you can put in each of those cases there was a film commission resigning on with decision you're saying there were three there were three oral arguments yes there were two of which signed up on the opinion the majority of the three thirds signature is not there however there was a third commissioner at the hearing i would submit to you that while there were three at the hearing case law does say due to a majority not the other issue in this case is that a temporary total disability benefits i won't belabor the point on that as well interstate scaffolding is plain patently clear that states it does not matter whether or not he is terminated for cause but whether or not the petitioner's condition stabilized his condition has not stabilized to periods of t t t were awarded for the times that there were restrictions on petition for that reason we do s that the decision of the commission be reinstated ince entire indian your name is evidence which is not the role i think you can see there in the case law of the circuit court to review a credibility determination what i think this is i think this circuit court found that the commission relied on an irrational interpretation of undisputed facts the first basis for the commission's decision with respect to a finding causation was that mr newness was on work restrictions as of august five two thousand and eight which is true however he was scheduled up for a followup two weeks after that while he was still in the employ of degrading landscaping he never showed up for that follow up visit therefore his restrictions were never lifted but as of that last day he was seen on august five two thousand and eight he reported seventy five percent improvement continued working for degrading landscaping continued working for big write in until september eleventh of two thousand and eight that gave him over a month to obtain additional treatment for the right shoulder he had also experienced a nother accident to his left hand at that time at which point he was weigh the credibility of the words well i think what the circuit court is doing is finding that there there would have been no rational trier of fact i would have concluded the way that the majority of the commissioners did given that mr new yes was scheduled for follow up in two weeks and he so by the circuit court reversing the commission's decision they're finding that the commission took facts and irrationally interpreted them in favor of it than your disability of the witnesses based on the c i'm sorry but your pride based on the credibility of the witnesses as well as the medical records submitted a trial now the commission also used as a basis for their determination that mr newness did not have any money for for the treatment again he still continued working for the respondent after those two weeks of passed and he still never followed up for any further treatment and he admitted at trial that mycroft in authorized him to get additional treatment first racial that he just never went back which i think b inference that the commission was wrong on an irrational interpretation of those facts furthermore he experienced another injury to his left hand none of those records including very importantly the intake form from his treatment for hand injury indicate any further problems with his right shoulder the intake form listed listed on there whether mr nunez had any other health problems he only has a diabetes he did not indicate any continuing pounds of his right shoulder none of those additional records through october sixth two thousand and eight which is a date after sturm anation document any further problems with his right shoulder there's then a seven month gap in treatment when he's seen and seen at the hospital that documents a history of an accident occurring in september of two thousand and eight which is two months after the accident it also documents a history of him falling backwards which is inconsistent with the history he reported to his earlier providers look could i ask you a similar question to what i asked on here and that is  think it was a record i don't think mr newness testified to and i'm not sure whether the records indicate whether an interpreter was present either at san antonio hospital at his earlier visits or his later visits with dr patel we do know that an interpreter was  i'm not sure if it's a matter of record but my assumption is that it was requested because mr nunez is primarily a spanish speaker ok but so certainly there's a possibility that these inconsistent histories that you're pointing out could be due to a language barrier possibly with respect to him reporting a fall it seemed anthony hospital but i don't think that's possible with respect to the date that he reported his accident occurred which was two thousand and eight he was terminated as of september eleventh two thousand and  and the reporting a history of accident occurring on september of two thousand it's not consistent with the july two thousand and eight data backs and what's important about his visit to dr levin which there were there was an interpreter present that mr ninnis reported that he was working full duty with his ning as his last state of working in november of two thousand and nine which was two months after he was terminated by the response numerous credibility issues i think were also ignored by the commission and i think it was correctly pointed out during counsel's argument that the commission never made a specific find that he was credible and they don't address what do they have to you you cite the s and h floor covering and also cook in your brief but is that really the state of the law camp a commission to simply look at the record and make a decision based on what it finds on the record here the commission that is within the commission's purview the commission does not need to make a specific credibility determination in their decision but the commission did not address any of the credibility issues which form the basis of the arbitrator's decision and there just goes back to whether or not they have to do that had order to be a valid decision of the right and i think that goes back to also the issue of whether or not the commission's decision is against manifest weight of the evidence and based on an irrational interpretation of the undisputed fact based on a review of the medical records and the testimony of fact the commission never address credibility issues with their decision the commission relied on dr patel those opinions and found them to be more persuasive incredible it was an irrational reliance because dr patel again did not have an accurate history of accident history changed the data backs and was wrong the history of one petition had last work was wrong and the commissions were ryans therefore on that where there is nothing in record to support that translator was present during dr towers very good record it's insufficient what we think the state of the record and the inference is made by the commission but to the commission making an irrational inference based on the state of the record as to whether there was causation as of the date of the arbitrations but i'd like to address the second issue which concerns the award of t d benefits which we believe is also against a manifest weight of the evidence while true that the obligation of pay t v does not end once an employee is terminated for cause the obligation of pay t v benefits should end if the medical records following terminations do not indicate any additional restrictions mr newman is as of august two thousand and eight reported seventy five percent improvement work restrictions he was scheduled for follow up in two weeks the record supports our contention that further treatment was authorized by the titian his own admission mayster lacked and would have allowed him to seek for the right shoulder treatment he didn't show up for solid in two weeks he treats with hand therapy for his other hand are no documented complaints of right shoulder pain there are no documented restrictions for the right shoulder i think the arbitrator correctly noted in his decision that if he's placed on no restriction no use of his left hand falling that left an accident and he still has significant restrictions for his right shoulder he would have placed simply been placed completely off course and he wasn't and therefore the commission's decision awarding a significant period of t t t between the terminations date and the baby's f in the e r was against a manifest weight of the evidence because mr news never followed up after that two week visit to get his restrictions continue and there were no indications in the hand there be records that he had continuing restrictions first right shoulder the law requires he was required to do so and i think persuasive authority was cited in our brief and mccarthy and i think counsel essentially agrees with our contention in his brief that petition was required to request an accommodation or  the request t d d benefits and he failed to do so and that is in the record and i think admitted by the petitioner in his testimony the third issue with respect interstate scaffolding is interstates governing should not allow a claimant to simply choose to stop treating while still on work restrictions and still be entitled to t t d benefits after he was terminated for cause and i think the supreme court specifically held that if the claimant is not  treatment refuses medical treatment that the allegation p t t benefits can end on the part of the employer and that's precisely what occurred here again mr newness was seen on august five two thousand and eight scheduled for two weeks follow up visit he never showed up he was still working for degrading at that time and the record supports our contention that further treatment was authorized counselor first to mr ben wells in the conversation they had but if you review the record on pages i believe see one ten and see one thirteen just briefly there's talk of seventy five percent improvement at a visit with dr ghani seventy five percent improvement is not maximum medical improvement it is not a stabilization of his medical condition under state scaffolding  say that he refused to cooperate if anything he attempted to cooperate it's tempting to contact the insurance company you could not true because he had no money he could not true because he had no insurance essential what his employer did what their insurance company did was bury their head in the sand once he was saying we disagreed we don't believe dr patel is report is good we don't buy it as opposed to saying however it no matter how you package it it's still intertwined with the credibility of the way that we are saying absolutely right and i used to question the credibility so now the question becomes what does mean a first we need it means the opposite conclusion is clearly a pair when you look at all of them have us one side versus the other a conclusion is incorrect for they explicitly found that one doctor was not credible while the other doctor was credible manifest weight is the weight that's what they need to be looking at and you look at the amount of evidence the quality of the evidence befor directly on the head when you're saying that it's not whether we agree with it but whether it's well grounded and well based that is the standard you don't have to like the decision but it has to be based on something has to be logical has to be consistent and that's what the decision of the commission was be filed no later than ten days after the decision will be sure in this case there is no dissent in there is no vote by a third commission and my question is can the industrial commission issue a valid decision with out the signature of three commissioners i would say yes or i would say the two decisions two signatures are necessary for the majority of the three so there commissioner is