his limo back on june fourteenth two thousand and three and as i know you are all familiar with the underlying facts i will not state them in great detail but it was somewhat of a unique circumstance the gentleman had a strep pneumonia virus in his system and on june fourteenth two thousand and three when he fell backward and landed on his box it was the opinion of the infectious disease specialist dr hirsch that we had allowed a sufficient bruising or damage in the area to internalise out for the infection to seed or settle at the l four five level and to do some further eating the way or damage at all for five the original nineteen b had been tried because there were several doctors opinions regarding whether the extent of damage and l for five could have occurred as quickly as it had if one were to assume that it was only as of june fourteenth two thousand and three when he fell at work that this whole process started it was the decision of arbitrator friday jani and then the commission that the incident the timeframe fits in their opinion and they adopted dr hirsch's opinions with respect to the at issue yeah and they did a couple of things the order temporary total disability for certain period but not all the way up to the due to the hearing and second and more importantly they ordered the employer to pay for the review and opinion of a surgeon who could now address whether mr tribe who required surgery in the low back at the time of the initial one thousand be the only current treatment he was receiving was with his family physician a doctor named dr cole trial and it was the opinion of the arbitrator in the commission that dr  lack the expertise to determine the exact nature of that low back condition and more importantly whether or not he needed surgery on his low back because one of the things mr tribe who was asking for in that and the information was sent to mr tribe who was attorney and mr tribal whose attorney raise no issue with dr phillips and in fact allowed for his client to attend this appointment with the doctor dr what we've got is a gentleman that's got a longstanding little bit problem so with all of the doctors as they've worked through this have been pursing out what isn't is not related it was the conclusion of the commission that the level of damages that l four one which is one level of course below where the infection wants but what phillips opinion was and i'm going to be honest i've never dealt with this before the in fashion and the employee damage that occurred as a result of end faction of al gore by actually resulted in what he termed an auto usually a kindle what a doctor would go in and try to do had they tried to use the spine at that level so what it does  of i guess in layman's terms locks in the area and philip says at this point in time he not only doesn't need any surgery at that level or any further treatment at that level but that level is no longer pain producing for number two that he no longer had symptoms from that work injured level and finally that the other levels of the lumbar spine were so diseased and so degenerated that those were probably what was causing his problem i think that dr phillips opinions have to be taken into consideration in a different light than what mr turner would like you to now looking at it adds because it is not a section twelve exam robin miller with section there is no testimony from any doctor that this particular incident did damage of any other level accelerated in any other level aggravated any other level and in fact what we know is that mr tribal was already under active medical care or his low back in addition to the three surgeries he had going back to the ninety's one week before this incident he had been in his family doctor's of advising the doctor he was having back pain for which physical therapy was ordered the perception medications were ordered and an m r i will was working so we are not dealing with a pristine situation i think what dr phillips testimony went to is to isolate that which was work related from that which was not and he was opinion that one of the rabble and we see this all the time you know will do you have from the level at which you sustain the injury from the level at which you were damaged and what dr phillips did very carefully and we circle long time with him to get to this  yellow for five believe that area is as good as i could have gotten it if i had operated on and he specifically testified it's not symptom producing and we don't have any other testimony to the contrary because the only other opinion we hand out is from dr culture who's the family doctor who treats him for a multiplicity of problems who testifies that he's seen him for everything under the sun including a subsequent back injury who testified he cannot identify why or if any of mr tribalist current complaints are related to any level of the spine because he's not a surgeon  interesting twist of fate dr cultura even testifies that he wanted to refer mr tribal or to midwest orthopedic for a consultation which happens to be exactly where dr phil so i think we've got a different situation than we typically see we've got no other orthopedic or credible opinion at all but dr phillips and dr phillips isn't a section twelve exam it's a commission ordered exam it doesn't go so far as the impartial medical section one thousand see one talks about it i don't think i've ever seen one because my understanding is those were doctors the commission paid for and as we all know they don't have funding for it but it rises to higher level because it's something that the commission previously recognised was not being addressed by the doctors who were treating him it is a doctor who needed to be credible and if there was an what dr phillips has testified to and the fact that he establishes that that problem probably intents and purposes is solved then you look at what mr tribolet testified to he's got a subsequent back injury he's got back pain which the orthopedic expert says is from the of the other levels of the spine not in any way touched or aggravated by this work incident he's got hearing difficulties he's got difficulty gripping the steering wheel and there vocational expert says it's the totality of these circumstances which prevented him from being gainfully employed mary smith testified that if you simply looked at a man with a fused alpha or five with the work level that he would be released to for that condition he's not permanently in totally disabled so we've somehow circle back around to the bat that we've got an individual that from a medical standpoint cured for lack of a better term from the ill effects of the specific injury and keep in mind every one of the doctors the time of that original one thousand the decision testified this is a unique circumstance it's this teeny little bit of damage out four five that allowed the infection is the infection and the infection of course was cured with antibiotics so it was philip's opinion that it was no auto used and therefore symptom free and i think that's what we've got to focus on the doctor corporal ever released him back to work dr coltrane testified that he had maps and he also testified that he really was not in the position to judge medical opinion that he would have continued to hear some kind of guilt thing from this on fusion my understanding from the doctors is that when you fuse the spine it results it eliminates the pain but it levels of the spine we've all seen it i don't think anybody here can stand here with a straight face and say that this gentleman doesn't have some problems but then you flip it around and you say what is the basis upon which the experts concluded he couldn't return back to work and it was his testimony regarding all of his complaints he can't walk he can't sit for very long he can't stand for very long he can't drive none of those are because of the  these other areas for aggravated in fact the earliest testimony in the original one thousand be involved the fact there was and plate damage going on at both l four five and l five s one even before the infection at zero or five so this is a guy that's got these advancing changes i had never heard of as you go pro says you know a man of this fairly young age resulting in fractures which was another thing that dr phillips had said this is a guy with a very very bad advanced low back and it's that constellation in addition to all of his other health issues and keep in mind phillips was of the opinion that there was some market for his employees and mr tribalist specifically testified again getting into the permanent total purview he has never looked for work at all these apply for social security disability and he's got these other health problems now which are impacting his his function and his ability to do to operate around for you a lot of time on ripple thank you very before we even get there you should bear in mind dr philips was supposed to simply determine the need for surgery instead when he asked what am i supposed whether or not surgery is needed or feasible and in order to make that determination dr phillips need not get into the notion of well there's he have a current and make a determination if surgery necessary or not and that's it that's what he was supposed to do no he didn't because they asked him to when he contacted the claims people he got into the issue in his testimony of well what's wrong with this man now is all something of a creator exists in nature that simply continued to progress yes he believe that what we're looking at there and he said i looked at the various studies and as you go forward in time first there's an abscess that resolves and then you have bony remodelling and bony reformation as a second decision concerning causation and the idea that the man was still suffering from the after effects of the infection  dr phillips and i believe that he became a bit of an advocate for the defense position but then said well no the only thing that happened is he had this beneficial auto fusion take place and  everything else came and went and he's better off a simply from this infection which was right in the end plates of the al for l five area and those end plates two fourteen zero three an x ray showed that the end plates had had some irregularity an x ray gun at the hospital where it was taken them urgently from this fall and then in twelve days later another x ray was don yes there's moderate irregularity it was dr phillips somehow arrives at the conclusion that he never saw these films he just read those very same reports and looked at the same language that he says that irregularity then be advanced and aggravated and he just there's no explanation for he says no not not in this case but theoretically yes it could happen but it didn't happen in this case  but he had taken care of a patient of mine a client of mine and done a decent job of surgery on him and i thought to evaluate the need for surgery here i see no problem well it seems apparent from the letters that went back and forth which are the exhibits to dr phillips deposition exhibits two three and four he starts out in those letters and then his testimony seems to shift in life towards an up a biased defense type position the so called fusion is not the auto fusion that he talks about this is not remarked about about as many off his testimony philip should it's like as a matter of wrong because i agree to let him come up with an opinion about surgery therefore as a matter of  what i think is a glaring misrepresentation of the record here trying to say essentially that while he was on light duty for three weeks before june fourteen zero three because of his background and this concept about the idea that when he's got all these other problems well you know when he started working for this place and to his credit and then had a fusion in his in his neck three procedures on his low bad just briefly i think yes in fact dr phillips testimony needs to be taken into consideration in a different buy than that of a section twelve exam and further and following just as holdridge questions there is no worth of opinion to the contrary dr cultural testified mr travelling has had low back pain and has been on medication since one thousand nine hundred nine his right current right like pain sing at l three and you cannot relate any of the gentleman is current symptoms to any particular level of the lumbar spine i think that it has it with ability to every case but the difference is is the permanent total disability award is the award of any additional benefits to this gentleman based on the work related condition which the doctors all agrees it out for five or is it based on other conditions which is on treating physician acknowledges he has had since before june thirteenth two thousand and then you look to the words he took surgeon the only orthopedic surgeons opinion that we have in this matter which says the level that was damaged in the work incident is now stable i'm not saying is the stress just pointed out that he doesn't have some problems and some symptoms but does it rise to the level of a minute total and the answer is no thank you very much the wor