practice workers compensation law know to be true it is very difficult to win an appeal based on an argument that the decision of the workers compensation commission was against the manifest w and let me say that it should be very difficult as a long time comp practitioner i think would be terrible for the system if the appellate court made it easy to win that if this week appeal the decision of the worker's compensation commission should only be reversed in a truly exceptional case where the overwhelming weight of the evidence compels the conclusion opposite to the conclusion the co everything you're going to argue that this is such a this is just such an exceptional case and i'm sure you have all heard other counsel say this before maybe maybe many times before but this is truly that exceptional case where the ninety eight there's no question that he sustained a significant physical injury as a result of the work accident and injuries to his right knee and right leg there's also no question that he suffers from a very severe psychological condition a major depressive disorder with psychotic features that has rendered him totally disabled for all purposes not only for work since t that yes he did apply and i couldn't accept that opinion there are two reasons why they did commission should have accepted that opinion first the opinion was based on that incorrect assumption a condition such as mr should we get had what he said in this case he didn't do so because the psychological symptoms can manifest themselves in will more than three months after the accident that they have to manifest themselves within three months or would you have this condition prior to the of the accident no i think that is that's an extremely important point the the wife and daughter testified unequivocally that mr shell good was completely healthy psychologically before this accident that he he was a happy person he was a family man he he he was absolutely normal  who went crazy after the accident and you have to ask yourself why did he go crazy the obvious explanation for why he went crazy is is the explanation given by dr brilliant in his testimony position was involved in a work accident and that is that after the work accident his personality changed he was not himself was the way the record put it all these symptoms manifest themselves right after the accident or germination three months after the accident got worse thereafter point where he is finally admitted to the hospital as was her general hospital in january of two thousand and ten  the the evidence there's only one reasonable conclusion that you can draw on the simple fact is that the petitioner was healthy before this accident and he went crazy he literally went crazy after the accident i think the the only reasonable conclusion you can draw from the evidence is that that he went crazy for the reason stated by by dr brilliant that is that the distress or worth of the accident accident and the injury but even if you don't do that there's there's plenty of evidence that that the the accident and injury themselves were sufficient cause let me give an example the second psychiatr suicidal feelings feelings of helplessness and and hopelessness and nightmares since the accident and this was these records were made long before this case was litigated you had every reason to believe that those records are true look at the records of luther in general hospital the first psychiatric hospitalization the their records state that the factors contributing to his major depressive disorder included the job loss but also included the good the workup the accident and the work injury and the operation of the knee so on the one hand we have all this evidence indicating that that basis for it is a single cat scan report that from two thousand and it shows mild cortical atrophy and dr harrington himself acknowledged that that is a slight abnormality that's the exact quote i submit that if one the one hand you have really powerful evidence the testimony from the wife and and daughter the medical records that consistently relate the condition to the work accident responses could feel at that point i mean he was obviously in severe psychological distress so i can only assume that he was unable to give it i'd like to begin by recognizing where council recognizes which this is obviously a manifest wait case that in only the rarest of circumstances ought this court reverse that these are obviously not the circumstances that the evidence is overwhelming at a minimum but certainly proper inferences were drawn by the arbitrator in the commission finding that the petitioner failed to prove causal connection on the fundamental question of psychological injury but i'd like to suggest that although counsel urges that this is just the manifest way case is free says just that issue is here before you and he's really urging something a little more which gets perhaps to justice holder's question as to arising out of on the psychological injury this court is pretty strict on its view of psychological injuries accept that this case is alleged to be a physical mental case the physical mental case most like this case likewise cited by counsel in myself is matlock a physical case resulting in mental injury matlock is actually only one of three cases cited by counsel the first being pathfinder the supreme court case which is mental mental but lays out a pretty clear groundwork for how we look at these cases and the commission should too but let's talk about the facts the map case the matlock case and hearing to pathfinder it here to the fundamental principle that a sudden severe emotional shock the company a physical injury even if that physical injury is relatively minor matlock was a case involving a overseas flight attendant who mid flight mid flight pre nine one one days had to confront and secure a very bizarre possibly hostile possibly violent hassinger the employee in that circumstance wasn't a passenger ten rows back that could reach for a rosary beads she had to confront and secure the individual there was a relatively minor injury resulting from the spraying of some kind of dental anesthetic that  claimant breathed other passengers on the flight breathed it as well the flight had to be diverted the flight didn't go where it was supposed to be going when it got to the ground where it was going almost immediately psychological care ensued for the claimant and other passengers but for the claimant ensued and was paid for by the employer circumstances permitted the employee to get back across the pond she got here the employer then declined to continue the psychiatric or psychological care of therapy and then the claim generated from there based on a denial that he initially had it we just don't have this  circumstance it's important to remember relative to justice holder just question that the testimony of dr michael brilliantly that i think the arbitrator of pretty fairly summarized says that the loss of the job in the loss of the social status is what led to the development of the depression ok so not the sudden severe emotional shock of the injury that the claimant in fact suffered here it could have been in different circumstances in this case but the fear of being let's say crushed against the wall and injuring the needy with a relatively minor injury to that need that eventually led to surgery might have been that particular circumstance yes is the answer to that now the next question that the court confronts is the commission weighing the evidence of medical x we have the testimony of dr brilliant which i just told you about and then the testimony of d carrington who is board certified who has opportunity over the years to have dealt with what the psychiatric profession refers to as stressors stressors in all kinds of different circumstances relative to the practice of dr carrington they were significant with the practice associated prior to his testimony in this claim with counseling patients a cook county hospital and inter excuse me inmates act a county hospital but the stress is a psychological and psychiatric term as it relates to this particular case for some racial separation that all of us will face of significance most significantly death of a loved one or someone close that separation the other separation commonly experienced by population in general is divorce that's a sudden and that is a clear separation has psychiatric manifestations that sometimes reasons first of all of the d s m definition that the justices referred to dr carey and takes particular task when they must manifest themselves within actually three to six months of the stressor presentation for let's say significant and then ongoing psychiatric care that didn't commence until approximately fourteen months after the injury approximately ten months eleven months after the separation there was no mention whatsoever of specific as opposed to general suicidal ideation now we have a record the testimony in pretty unusual proceedings from the spouse in the spouses daughter as to suicide attempts that take us a little closer in time to the separation from one but even there that doesn't fit the d s  m definition chronologically and more importantly as dr harrington pointed out and is is the province of the commission to weigh and decide none of that was referenced when petitioner finally was  needed to alexian brothers at the end of january of two thousand for a prolonged period of psychiatric care in fact just the opposite and just the opposite as appended by counsel to his brief is a specific reference to the intake notes of the nurse in which the patient admits passive suicidal thoughts passive suicidal thoughts now again we're talking about a period of time it's removed fourteen months from the physical injury eleven months removed from the separation stressor there was no mention by either the claim and it is acknowledged it does come out in the depositions that there is limitation obviously for psychiatric patients as to what kind of history they have but there's also testimony from both that they rely they have to rely on collateral sources loved ones spouses and that that history is conspicuously absent when there was a presentation on one twenty nine and even if you wind the clock back yet another month went for claimant more significant psychiatry with a polish surname within that community that he may have trusted there was no specific reference of suicidal ideation what somebody else a posing council made a reference to the theory and it is well settled that to be compensable the accident need not be the sole or even the primary cause of the condition complained of cover could be based if it celebrates or aggravates a condition that a possible theory of recovery here if not  that it isn't in this case and it isn't in this case primarily for the reason that unlike matlock unlike other appellate court cases and one supreme that i mention in  wasn't the severe sort of emotional shock either at the time of the physical injury that then very soon after led to some kind of psychiatric care or if we accept the significant separation up please understand in the section twelve context and specifically in a very difficult section twelve context of this circumstance the examining physician was only able to do a limited amount of things one is review a mountain of psychiatric records one to conduct an examination under very limited circumstances so that had it been the case for instance that dr carrington would have been the treating physician for this individual and been able to do a full run up on whether that quarter call shrinking might have been so severe might have accounted for it there might have been more there but the important of the important point on your question is counsel is asking this court to substitute its judgment for that of the commission on that question it's saw first of all the testimony of the witnesses and also weighed the relative now eleven it's not just of the experts but in a record at random access respectfully think that the evidence is a little stronger than you used to be so was there but even if it is councils asking petitions asking you to substitute the judgment that this court has said time honored cases i don't need to cite is the province of the commission to decide and there isn't evidence that the opposite it's that the opposite result is absolutely compelling the only other case of the three cases cited by council in this brief is home or doing and it's specifically on the question of manifest how this court may feel as it relates to the actual psycho psychiatric injury again i urge it isn't about what employer feels with dischord feels it's the province of the commission to decide that  the likewise reference that there was no agreement to not present evidence on the basis for employment discharge it just percentage had been presented it is in fact reality that a sub trial of a kind would have occurred on that issue and evidence would have put up been put on but there wasn't a subject there was a  it just was not what this is an important point because in cases like the chicago park district case structures are the purpose of cases basically being a mental physical case in which the entire very hostile point environment was demonstrated and laid out by testimony as to an attorney that was physically assaulted had been mistreated before the physical assault which didn't result in significant physical injury and likewise was mistreated after the physical assault involved punching in chest psychiatric or psychological care ensued and that's why that's an important point made reference in the last point i'll make is that his client literally went crazy after the accident as an employer or even if i wasn't representing the employer i can't deny that temporally admission to a hospital and significant in severe psychiatric depression was diagnosed and treated that is a reality but also the reality is that there was a significant gap between before those symptoms began to manifest themselves in a very significant way in which loved ones and perhaps the the claimant himself was able to get himself in for psychiatric care  emotional shock and in this case there was not well get it there's testimony in this case from both the wife and the daughter that when mr shelley came home on the day of the accident  looked very startled and very nervous as if he was in shock that was testimony so i submit that there is no real distinction that regard between matlock and in this case as i explain why this accident affected him the way it did but it obviously affected him very severely from the beginning psychologically affected  second last let me say this that to uphold the commission's decision you have to do two things that i don't think it makes sense for you to do first you have to completely discount the testimony of fisher's wife and daughter and i don't know if i said this already but if i even if i did it's worth repeating the arbitrator who heard the testimony didn't question its credibility and they testified that we had these problems immediately after the acts and they continued right up to the time is his first psychiatric hospitalization the second thing you have to do go pull the commission's decision it doesn't make sense to do it is the equivalent of believe believing in the tooth fairy you have to believe that this perfectly normal guy went crazy by coincidence a year after the action if you can if you first discount the testimony of the wife and daughter that he was going crazy gradually from from the time of the accident up until january of two thousand and ten january of two thousand then you have to believe that all of a sudden in january of two thousand and ten he went crazy well all right he go crazy he didn't have any  would be that one i guess one possible hypothesis here would be after the job loss and completely distinct from the accident and the injury he went crazy because he wasn't working but again getting back to in addition to the fact that he was healthy before the accident and there's no family history there is the fact that there are no indications in the record family there's no marital conflict there's no physical illness that other than the knee injury that might have sent him into a tailspin so again to to to uphold the commission you have