believe that and i think the case of local is kind of instructive here is that the petitioner in this case claims that he worked for ace hardware for approximately four months was pulling an item of bird seed he described and felt the pinch initial he saw to media treatment and i have no issue with the fact that he may have felt pain at work the issue comes into play because prior to his employment of ace hardware he had another work related injury in one nine hundred ninety seven when he was working as a volunteer fireman swinging an axe he went to see a  he had recovered from the surgery and he was released back through to work however in the year two thousand he returned a doctor wallen with additional complaints to the same now  tear because of the prior surgery and my dear dr wolin sat in his deposition that there was no prior tear to that point later but if you look at his surgical report is that when you look back at the operative report there was a sole you know and that's an inconsistency and i understand that the commission and the arbitrator can say look at we don't find dr cohen credible or we do persuasive even though they didn't use those terms because he's inconsistent and dr cohen's a consistency was his first opinion in november of two thousand and five said it's related the second opinion in december of two thousand and five says it's not related to the two inconsistent doctors so the commission weighs the many food and yes to inconsistent medical opinion and goes with doctor won't so well were some incidents were dipping there was pain at work i'm not contesting the fact that mr buffington felt pain while he was working whether that's an accident or not i think we're you know now when you have a preexisting condition where he had ongoing problems and he told dr cohen by the way that this happens to him like five times let's assume he had a preexisting condition i don't even know counselor so it's going to disputed by your problems with the firefighter if it gets in the record right so unless caused by an independent intervening accident that breaks the chain of causation between the work related injury and the ensuing disability that would have been what was the independent intervening incident i'm saying there is not this is that other inciden whether work related or not may have aggravated the can claim this condition is irrelevant so if you have somebody this got ongoing problems because of a prior incident and then they feel pain at work that doesn't mean that that event bones testimony supports the commission's decision you know i believe that there is clear evidence in the record that his condition was preexisting and not accelerate you know problem additional problems for mr vogel wasn't an intervening cause whereas simply pulling a box of bird seed when he's had all these ongoing according to the commission all of the prior things are relevant because he said he had pain at work at mission and i don't think they found mobile in that situation lesley with respect to  there was never an award of prospect of medical in this case either by the arbitrator or by the commission in fact if you look at the commission's decision the form that is submitted doesn't have any indication that morning your honour's counsel my name is david o there i represent mr buffington the employee in this particular case i think there's ample evidence in the record for the commission to accept the opinions of will in the treating physician versus the section twelve examination physician and dr cone and his opinions and as this court had mentioned there were some in consistencies with d buffington is right shoulder even though the m r i showed it even though dr whirlwind testified to to his clinical examination that there was a labor in tear that's an inconsistency dr cohen gave an opinion in november of two thousand and five where he causally connected the petitioner's condition in his right shoulder to be that that occurred at work he didn't have to keep he indicated that he would like to see other additional records as far as treatment wise those kinds of things then he revised his opinion which i think undermines his credibility he gives a report a month later motorized razor so apparently it was so in consequential he didn't have to do any suturing didn't have to do any major surgery what have you it was something that he saw it corrected and everything as far as he was concerned was was fine when the m r i was taken in two thousand and five it showed a type three labor tear which dr will and said he can only have from trauma dr will in testified that pulling the fifty pound bag could cause the tear dr cohen also testified that that particular event could cause a tear in the labor of what's confusing in this particular case is mr buffington had a shoulder procedure and and apparently the results weren't terribly great so he continued to have these occasional periods where he felt numbness and tingling those are not the signs of a laboring tear belaboring tear signs are pain so they're kind of mixing and matching they're saying oh yeah he's always had these symptoms so this is really nothing new well they're comparing the wrong apples and oranges the symptoms for labor on terror are pain and when the doctor does a clinical exam called the o'brian test that's usually an indication that there's a labor and tear the gold standard is to have the m r i within us the gram down to see if there's actually a tear visible to the radiologist in this particular case after the invented we're here for they think condition so i think the commission based on the weight of the evidence to determine the doctor will in the treating physician who knows the shoulder better than anybody else was correct in his analysis that this was a new injury and i take  he mentions a particular pages in total dr women testified his deposition that this gentleman needs a laboring repair surgery so i think it's it's disingenuous to say well now we're not really sure if a prospective medical was feet was the fact that they had disputed that he needed any further medical care so that's why we went through the depositions the hearings the whole nine yards was to establish whether this gentleman needed further care the only for their care that this gentleman can get is surgery that's the only cure for labor on terror so i think it's disingenuous to say well we're not sure of that he needs perspective medical when they do they're revealed before the commission one of the check marks that you make is under medical expenses his perspective medical care necessary they didn't dispute it they've never disputed and so today now i think this is just the i'm going to lay in accepting responsibility for what appears to be a pretty obvious case they didn't  accept if they got a trace in level the commission level the circuit court level now we're here before you gentlemen and they're asking that well we we need some direction of whether there's going to be prospective medical this is just a further delay in a case that that didn't need to go as long as it did this is five years post when this gentleman first started his case i don't mean to get distracted from it but i think it's obviously clear that the commission properly weighed the medical evidence and determine the doctor when it was more credible i think and i hope it this project particular junction the result will be that mr buffington can finally get his surgery so we can move forward with this particular case but whether or the with the progress of this particular case i would expect that we would be back before you're treated spitting whether or not the average traitor in fact really meant to say he has the right to have perspective medical here was in a world of t t d d there's a word of m so i see this just carrying on to another level to be honest with you unless there's some specific decision on this court's part that yes that's what the intent was by the arbitrator the commission's intent was still the same there was never any dispute along this whole long by his patient was related to the one thousand nine hundred seven injury and this is after the surgery and shortly before he goes to work at the start again we would ask that the court reverse the