is the real question the real question that was in controversy at trial the employer did not obtain any medical testimony on the issue of causation but  claim on the basis of whether or not an accident had occurred on july twenty third the commission in making its ruling in this manner stated that the worker did not meet his burden of proof there was no specific finding by this commission while there is argument by the respondent in this regard or the employer that the petitioners testimony was not credible or that his lack of credibility was the basis for finding that an accident then occur the commission did not conclude that no accident occurred because the worker was trying to avoid being transferred onto the line as stated previously the commission concluded at the end of its seven paragraph statement that mr bond did meet his burden of proof and then that commission outlined a number of reasons why and i understand that the manifest way  instance a very difficult burden to meet don't come here or the score lightly in that regard in many cases but in this case i think that the reasoning is set forth by the commission in the facts of this case more  aren't even supported on the record but in specific reference to what you're talking about your honor mr bond testified was asked about his demeanor and was very outward appearance when he talked to supervisor about his his injury and mr bonds testimony was that mr well was in the near vicinity and he had talked to him he had talked to him he didn't know that there would have been anything other than i hurt my back the petitioner's testimony injured workers testimony is that when he got to the medical department that's when he was sopping wyatt and the excruciating pain wanting to see the doctor mr bond never stated that he had those types of manifestations at the accident scene so i think that's one of the arguments i had that was coming later where the commission made that conclusion stating that's what mr ralph testified to i'd agree that's what mr ruff testified to that mr bond never said that he had those types of manifestation preexisting condition and had an m r i in two thousand and want i don't know what basis in the law there is for that to have any effect on whether an accident occurred or not clearly preexisting conditions are compensable it was six years prior to this incident the same doctor that treated him a no one treated in bed all seven we're not dealing with someone that had back in like pain two weeks before this occurred two days before this occurred it was six years early earlier so this isn't a mis representation or misinterpretation of the evidence this is just an incorrect statement of what the law is it should have nothing to do with whether or not an accident occurred i don't see the relevant basis that was made by the commission dealt with whether the fact that he had a preexisting condition from six years earlier so obviously that must have been something that the commission relied upon in coming to that inclusion or why would that be and that criminal well for example the commission in this case said it's puzzling given that he did not seek outside medical treatment until august sixth would have been two weeks after the accident well the testimony of mr bond was that he went to the cat medical department the doctor would see him there he went home he called dr miller's office that day dr miller perscribe if i can then so do some therapy exercises if it doesn't get better come back and say me that's exactly what he did that's documented in dr miller's note of july twenty third then there are some statements that the employer are use in the letter to dr miller about he not allowed to fill out any forms well they're taking a license again with the record not stating what the actual testimony and evidence is even taking their witnesses testimony mr bott stated in his letter to  dr miller it was written by is why that he filled out the x in a report but that he wasn't given workers compensation papers he never disputed that fact there's a difference they get a sheet a caterpillar for workers compensation he never think that he didn't fill out this work accident report he testified that he did that in the letter to dr miller who said he fill that out but he didn't get worker's compensation papers the employer in their  well mr byron wrote this down and said he wasn't allowed to fill out any papers and that's not true filled out this accident report well that's not what happened in this case that's what the commission found that's what they're arguing but if you actually read the letter itself that's not what it says it says he filled out the accident before but was not given the compensation papers or a loud to see the doctor why did he write that letter he got hassled at the cat medical department that day he had a previous problem years ago were wrong boxes checked and so he put in there believing that it was work related when you fill this form out check that dr miller testified  did he say he's made up his own independent mind or judgment in that regard so i don't see how that water is germane to whether or not he injured his back that day lifting any type of bought another argument that was made by witness is on that accidental or not just to help mr bond but to help the employer because that allows them to investigate these accidents the employer had it access to mr mcclure every day and and some of the questioning regarding mr mcclure and their route in that regard i think is fair in terms of your craft he was asked about this witness and then he was shown the document and then recalled mr mccloy or they could go to his memory go to his memory or inconsistent testimony there become mission is making an affirmative statement that well he's listed as a witness on there if he was favorable to mr bond on this accident dispute he would have testif testified because he wasn't going to support mr bott and then you're asking make that inference well because this testimony wasn't going to be favorable you isn't going to support his coworker that's that's the purpose of that type of statement there and you the statement that mr bond's testimony is incredible and there's no conclusion to why this accident didn't occur i mean you look at he says he lifted the boxes his back hurts he has left leg pain in the m r i he's done a month later they corroborate so symptoms exactly now because they are educated in say you know what it's due to all these you know this letter and this that this accident didn't happen we don't have that type of affirmative statement things that are completely inaccurate about when he first sought treatment to move water when actually he's been trying to get out of there for months if not a year when they cite the preexisting conditions being a factor that an accident occur and then there's no specific reasoning from the commission as to why this accident case was denied i think there is significant question in that regard and that's kind of the reason for making this argument coming before this tribunals not one factor itself but it's a combination of all of these things that i believe supports mister grounds for appeal thank you both of you may please the court counsel my name is mark peters and i represent the respondent applebee caterpillar corporation in this case i believe this case can be summed up in no one sentence or one thought rather appellant in this case was not a credible witness and his testimony was not supported by the evidence i went to great detail in my brief as to why i believe this is as opposed to that conclusion and third the arbitrator specifically and the commission specifically found j ralph the supervisor credible and i think when you look at those two sets of one one brief example just does that and i think there's many but the most critical one on the date of the alleged accident the accident was alleged to have occurred at six thirty five the work shift started at six thirty so this is five minutes into mr bond shift there's a five to ten minute meeting held there after mark on approaches ralph and the first words out of his shows it's not where mr bond wanted to go then for the first time that day mr bond states i heard my back bet is in direct contradiction to mr bond so for we believe mr ruff which the commission did and stated so specifically i believe on for example on that fact we just critical in this case those are irreconcilable in those cannot be reconciled and i believe that would be contrary to the leak case and in effect evidence going backwards in time and saying that petitioner is credible or more credible than mr ralph and therefore i think the arbitrators findings are provide plenty of detail in this case  just think again and i'm not going to go through all this i've documented it certainly go into it farther earth that the court wants to go into it let's address the outward appearance of the petitioner shortly after the accident and petitioners appellants brief and argument that there is much about this suggestion that in effect mr ralph can't tell because he's not a medical professional that the petitioner i pain that you have to be a physician or somebody a medical community the court is probably reviewed the petitioners letter to dr miller in the first paragraph that letter he talks about the very moment this discussion with mr ruff shortly after the alleged accident is how long and he said quote i can't stand up this is not a first date this is shortly after the accident and why somebody has to have a medical degree to look at somebody and determined that they are not coddling which is what you ralph there gig was an all turn they were not sweating there was nothing unusual about his demeanor he did not render any medical opinions but somehow mr bottoms coworker is in some sort of heightened position that that person can if you're to believe that petitioners testimony skew the petitioners letter to dr miller which i'm not suggesting you did but i am suggesting it creates an inherent contradiction medical condition them the main reason i'm in my opinion the arbitrator brought up the medical condition is not so much that this is a causal connection offense but because it's an accident and i think to discuss the accident you inherent in that discussion is you have to discuss the physical condition of the petitioner before and after the alleged accident the m r o that the petitioner powell puts so much stock in is actually the best piece of evidence portion of the petitioner appellants brief that he suggests that the m r i probably it's the symptoms because he has a ridiculous pattern of going down his left extremity which should be noted is in two thousand and one the petitioner again had similar  there was other than the subjective complaints and that's all we have here is subjective complaints there is absolutely no support whatsoever for any change in condition with regard to this letter from the petition to dr miller in reading  petitioner palin's brief you would suggest that this is common practice in the work comp industry and i don't suggest in any way that i have remotely as much collective or calm experiences as the justice he's here but in the years that i practice work comp i have never inquiry as to why would a person send such a letter the pretext for the letter if you recall was why he had problems with this in the past based on a disability form that was not completed correctly but once again mr obama directly contradicted on this issue specifically mr bond said well some doctor in the past that we don't know and this piece of evidence was never introduced never once in this mystery document suggested that a disability form was completed incorrectly but which normally would be of no significance at all but on this specific issue i believe it's very relevant in that dr miller completed a form seven years earlier and he marked the box that says it was work related so mr bo related so he specifically asked the doctor mark the work related box he also wanted to mark that he should either not work or not have restrictions which would go back in again to his agenda or his goal that lack of testimony but the accident report or incident report which is a caterpillar incinerate court was in completed by mr bond and specifically listed mr mcclure as a witness to the accident and then again the july twenty seventh two thousand and seven letter to dr miller and i'm forty from that mother another coworker was standing right beside me and i knew i was in and knew i was in a lot of pain there were no other coworkers  would accompany of five point zero one instruction is the auto accident where one of the cars is alleged to have run a red light we have a third party witness that's interviewed by a police officer and render it as an opinion one way or another is the color of the ride whether it's a red light or a green light and the other party calls that third party witness and one of the parties comes in the closing argument and jury trial pursuant to the ellington case the court found that if there is no objection and in that case was a closing arguments i realize it's distinguishable for that reason if if there is no objection that party cannot sit on its hands and say not object and then later suggest that that was inappropriate evidence here and in this case inappropriate evidence or in that case an inappropriate argument so in some i believe that there is that and i think there's also a question with regards to applying this pattern jury instruction there's no cases that i would feel could find to suggest first of all that we need to be going through this analysis as to whether a pattern jury instruction applies in a worker's compensation case there's no case law on that further the only issues in dispute under five point zero one are two and three the second element of two and three i've already addressed and i believe if there's a question based on the spin our case as to whether it whether the witness was truly unavailable and again that goes back to the address one issue with the bradys of the employer and some of the questions here intrade jack in opinion on this case they credibility was the basis for denying it accident occurred here there then you have to go back and say all right we look at how they came about with the conclusion and then i go back to these various points and it is it's very irritating to have things and decisions from commissions why testimony what was your why are your gate affected when you have four pro choice mr ralph it was a small area i might have been standing there and just move over to jay say why to that wall to say something like that jay you know i hurt my back i was going to first say that was the actual testimony in that case now they've already knew that he said he was sopping wet at the scene in public over to him it was on the way to first aid in this large plant and then when he got to the medical department so what i'm looking at is i understand the argument that he's not believe i understand the argument here but my whole point is if they don't make that finding then i have to look at what is the commission done in this decision how did they come up with their conclusion when we go backwards through this and look if it's against the manifest way and i look through the six things that they point to could have been some ball when the better hair make that finding and say you know what the guy was incredible i don't believe an accident occurred because of these and consistencies but that's not there they cite these other reasons and never make the final leap or conclusion thank you