see causation and significantly the petitioners as we would put it lack of credibility the brief raises several issues and for the purposes today would we largely like to stand on the brief but focus on the causation in the credibility issues we're asking the court to reverse the commission majority on the issue of causation because we believe that the arbitrator was correct in that setting commissioner was correct that the petitioner lacked credibility and we think that an opposite result is clearly a parent in this case and we would we would acknowledge that the did amenophis wait standard has at times been been characterized as his or some evidence to support what the commission has done but what i would put to the court any time that you have the consideration that an opposite result is clearly apparent that the standard isn't that all evidence must support a reversal the standard is that a majority or actually it must be clearly apparent from the evidence right i think the wording of the standard itself acknowledges that there will be some evidence that might favor the claimant and in this case it's our opinion that the record as a whole shows that the arbitrators findings should have been affirmed by the commission and it when we look at this case we can really summarize it is this that the claimant had a preexisting condition with his low back this was documented pages ten through twelve of the main brief and documented by the arbitrator he has  think it is in this case because here we don't have the need for surgery rising until after the october incident we have a gentleman who who sustains his work accident in june of two thousand and six he undergoes an m r i shortly thereafter it shows the degenerative condition of the both gene disk a herniated disk depending on how you want to look at it but he receives an injection he was doing well he returns to as we would put it he returns to a baseline condition but then he goes and go off thirty six holes in a two day condition as he has ongoing low back pain ongoing pain radiating to the lower extremities is documented dating back into the into the early two thousand and late one nine hundred ninety s and if you look when we look at the kind of packet records we see those complaints can continue and continuing continuing and so we think that that is the baseline condition that does have some residual problems that continue on and so it's our opinion that prior to this golf incident he did reach his baseline which may have but i work at a checkout counter and i also use my wrists i developed carpal tunnel at work a contributing cause would be the fact that i was a piano player on the side and used my wrist that wouldn't take away into the kernel my standards my claim for carpal tunnel against my employer as a as a cash register a intervening act would be something that takes place that changes the the condition that the individual has and requires that superimposes a different type of  treatment or a need for a change in the condition of the treatment to take care of that condition and so i think that's what we have here that's how i would just find that to put in the context of this case the why couldn't the golfing incident be a contributing cause as it we can define it to a specific time not tobar of two thousand and seven and we can say that his condition changed at that point and also i'm reading the record wrong that there was no real need for surgery in this gentleman until after that time commission majority relied upon him and found him to be more credible it's our position that we cannot consider his opinions as credible because when we look at what information was given to him by the petitioner the record is clear that he did not have a full set of facts he was not told about the prior back problems to back injuries he was not even told about this golf incident and we think that you cannot look at his dr bernstein's opinions in vacuum and he did look at the situation here in a vacuum so we think as an arbitrator found the petition was not truthful in talking to dr blessing or some other doctors in this case about what is real condition once you get interesting point that runs with the move all these cases what you're saying is that in his  intuitive feel was that the doctors or any medical opinion is really only as good as the underlying information or data exactly on which it's based yes but you have many cases that say that the commission cannot rely on it unless the foundation is true or accurate did at the at the deposition but i think he also acknowledged it was a very christian examination of them i don't think there was any real study of them but i guess you know in a realistic practical sense i guess at what you expect to see that of the golf audience and i believe this guy now that brings us to the the argument that we made in a brief about alternative standard of review and that we've had many discussions that i think i know where the court stands but we look at the r and b feel case one of the things that you said was when the when the industrial commission reverses a arbitrator on the issue of where there's been specific kind of credibility and they don't address that credibility in their opinion but that the court should remain on their backs and commissioned i would say in this case i would have to say i wouldn't ask for a man but i think in this case there's no real explanation in this commission decision as to why the bypass in this whole assessment of credibility they make some comments outside of addresses before my time gets up here they make some comments on why they want to change remember they never address the issue of credibility and i only answer is that the guy's doing great the better he's finding that the answer is that we just couldn't get our hands on it you know we don't have discovery there's no way we can send errata trays and say who would treat with we can't do that so i think that that two thousand and three to two thousand and six again i don't think it means anything the second thing the commission looked at was that symptoms never went away after the injections right completely one way we talked about that i would point the court to dr maggie's tobar twenty second two thousand and seven entry where he discusses out a little bit we talked about dr bernstein's opinions that they said were credible and we've also talked about the fact that there was a that the commission found there is no indication that he reinjured his back we think again when you look at the october twenty second for good of dr maggie that he clearly did sustain a substantial injury in trying to get sanction it's not eight alternative arguments to support what was done below the asking for additional relief in most cases that that situation the cases have been consistent over and over that they have to file a notice across appeal or in original those questions of the problem to try to has in the past made the same argument that in the court should exercise an extra degree of scrutiny when the commission reverses an arbitrator on the credibility of a witness and this court has consistently hell that it does not have to it does not allow for extra scrutiny for to do so would be to legislate from the bench now my opponent who's consumedly argued and painted a picture that conveys the impression that my client has treated for back pain up until the date of his accident we know that's not true how do we know that the council wants me to prove a negative he wants me to prove that my client did not have bad treatment i can't prove a negative but what i do know is those medical records that they had from the family doctor returnable directly to their office shows treatment during those three years before the state of accident and nowhere in those records when we know that my client has diarrhea when we know that my client has the flu when my client has an infection we know that he didn't complain at all about his so to say bet there's a gap in the records or a gap in treatment is to say that i'm june sixth two thousand and three my client decided to treat for his back elsewhere and play and his june twentieth two thousand and six accident with enough time between the doctors and he made i stand here today and i tell him my client does says growing through the airport on a plane my back was hurting but i have a problem with that is my client really isn't the best communicator and when you look at the physical therapy records thousand and three for it in five when he went golfing it's a red herring and it's a fact question for attorney's fees and penalties would be correct but i have a hard time reconciling the case walk with section nineteen account which states shell by summons to the commission have the power to review all questions of law and fact presented by the record it doesn't limit it to cross appeals so i believe that the entire record is you need to file across appeal i mean this isn't your stating cases that say well we can affirm on any basis in the record but you're taking the cross appeal right it's something that i beat myself up about right and we see the dilemma i do continue died and that because of the burden baz they had no right to take the family back to records and take the subpoenas and we don't know how many other subpoenas were issued to how many other doctors because they argue that they can be returned to the defense attorney's office without giving anybody notice that's just wrong just absolutely wrong say they don't have discovered this whole case is about their discovery we did not try and keep any records from the respondent the first ten pages in a transcript were before  only one who reviewed those records and the petitioner didn't keep his history of a prior back condition from the treating doctor from doctor to calls he even told the adjuster we're he's going his testimony i also ask that you question why didn't dr werner be given an opportunity to review those medical records that they had regarding the prior treatment or maybe well maybe she didn't review them and they didn't ask bad question because when that deposition was taken those records never saw the light of day those records saw the light of day after dr  it explains this process when you look at one thousand f one it it talks about the circuit court shelled out by summons the power to review all questions of law in fact presented by the record that's a different question than whether it's this court and we cited numerous cases roughly bogus clay city of one me ten although support the position were advocating the landmark case that they cite is a case where they were simply arguing to alternative reason to dismiss a complaint happen to be standing that they had lost earlier is a different situation than what we have here today never quite other other come i want to make his can we win this case if you don't find the golf incident to be an intervening accident i think we can because this there's a substantial element of the arbitrator's decision the focus is on the lack of credibility and that has to do with what he told dr bernstein asked to do with how he responded to the direct questions of counsel and arbitration about what his prior record showed arbitrator didn't believe the guy and i think that's substantial and the