e permanent disability award and whether that was proper also medical expenses and whether or not they should have been awarded and penalties in attorney's fees i'd like to start with the award accident when a trench he was working on with a jackhammer partially collapsed there was no surgery in this case it was the same treating doctor dr lamb the diagnosis sort of a working diagnosis by d three four and zero four five of course when the prior injury another rescue was performed and once again mr work scored at the medium level there was a discharge of hearing the two insults to this person's back had become one disability the commission when they look at cases they look to the present condition of that is the medical condition on the date of hearing and not the number of injuries or such this case involved an arbitrator's award with the same testimony same evidence two separate decisions at the hearing the petitioner testified that he had pain in his legs that he had numbness and that he now had begun grinding his teeth due to pain but he did not distinguish where the pain or any of these disabilities that's come from or whether they were for the first or second incident there was no attempt to distinguish between the two injuries by way of medical testimony by report or deposition point which you're saying is we have one condition of ill being at the time both these cases were presented to the arbitrator correct and that the condition of bill being is attributable to the same area of the body and the exact same area of bodies right down to the same disks of the brain and it was there any delineate was there any evidence presented at the hearing that permits a delineation of a separate condition attributable to each accident no it's our position that that's not the question is whether some of the things he testified to weren't as i would say whether he was testifying in present tense or wh restocking about in other words when he returned to work what was he talking about sitting at the hearing and it's our position that he was talking or testifying in the present tense when he was at the hearing and counsel for m testimony with this question could you tell us today how was your back feeling the responses as i stated by mr worker in the present tense mr works case as it was your analysis the only difference it would make if it was separated by a certain period of time world of the petitioners trains always ask their clients what do you notice about yourself today if there was if we were talking about a different period of time we reached the result because on the date that they were consolidated for hearing the testimony could only show that on that particular day he was unable to return to work and he was suffering from a wa the supreme court has expressed a preference for wage differential awards over scheduling warrants in those situations where either is available the one we're looking for partially incapacitated from pursuing his usual customary line of employment was mr old world so incapacitated and then the second part of eighty one is with an impairment in earning power and that's where they direct their attention to towards the drug impairment in earning power worse eighty two it suffers injury when mr work suffers an injury that partially incapacitates him from performing the usual and customary duties be the ones that were not marked paid was there any evidence that the bills were reasonable or necessary from the doctor yes i would say so so some doctor testified it was all reasonable in the old good based upon the for instance some of the treatment that was given on that day particular day with the medical bills but otherwise there was no testimony from any doctor about cite some of the cases normally this issue comes up when it's two parts of the body or but it not two different injuries but that being said in freeman cole which we cite now brief the court rule that you're entitled one of the other but not  court said section eight prohibits the commission from issuing an award based on person as a whole in wage differential so what we have our opinion on the day that this award was made we have a medical condition that cannot be separated between between the two injuries on the day we all sat there he had disability which entitle him to a wage differential and that is all and we would ask that that eighty to twenty percent of me and be reversed but i would just note other medical expenses as i mentioned to justice hoffman that  matter that occurs as a matter of law on the statute specifically says if one of the parties asked for the consolidation if it's the same of a ploy or then it shall be granted there is no opportunity for the petition step up and form a type of protest in this matter with respect to whether or not there is a differentiation and mr works medical condition i submit to the  o you to the justices that in this case mr worked after his first accident was released by dr land on july tenth two thousand and three at full duty he was given a full duty release and in fact went back mercy works the city of chicago's company clinic on july thirty first two thousand and three and that will do the release was again noted by them and it was he was discharged from care at that point and he went back to working with back to work for approximately ten months  and he worked as a laborer any testify that he was doing what i was doing before him in that job so that i think clearly that's the best evidence of that his medical condition had had reached a state of permanency and but for the fact that this new accident occurred he would have kept on working he suffered the second accident and as a result of that accident landed up with current restrictions put in place by the doctor that led to a change of job they accommodate him as a night watchman at a lesser rate of pay and it's on that basis that the wage differential was awarded how do you counter the argument that the evidence at the hearing established only one condition of  being a bill being there was not a delineation of a separate condition of ill being attributable to each separate accident but i think that on the stipulation sheets there was entered into a stipulation by the parties that there is a causal connection to the old being and both of those cases so that's number one number two i think that there is an argument that's being made here that you can only show the person's condition of ill being at the time of hearing and strictly at the time of hearing and i think i've alluded in my in my brief a couple times that creates some some kind of awkward situations where whereby if if i suffered an injury at age twenty and chose not to actually try my case until age sixty that all the sudden one testifying to after forty years would somehow be the standard it would be applied to the case in terms of my pregnancy level seems a little extreme to me and in this case again ready to go back to i think the commission considered is the fact that in this case he was given a full duty release to go back to his job and in fact he did go back to his job and was able to perform a at that time he was having some issues with his life as he certainly testified that after the second accident that he noticed that the numbness in his legs was a that was worse was a worsened condition lower salary but they didn't paid a wage differential and they didn't pay it and until march thirty first two thousand and six so you have from may second two thousand and five you march thirty first two thousand and six and there was never an explanation offered as for  delay and benefits i think that's what the commission picked up on you also let me ask you this what specific case law authority can you call to our attention that supports the war in this case under both eighty eighty one and sec that the other side has has cited to i know that in those cases in general electric galley anti freeman united those are all cases where there's just simply want to accident one accident and that the person they're seeking recovery under the two theories man as a whole and with no wage differential the only thing that can really be pointed to in billman trucking as is mr cooper had a point on his brief the supreme court said that they were ok with a an award of statutory print total disability along with a permanent award under section eighty for for the damage to the arms again that's not specifically related to our case because again that's just one simple accident but the reality of the situation is if this man's first case had been tried we wouldn't be here today there would have been no work the world would have been justified that situation would have been eighty two  the suffer an injury to his back they would have they would have contemplated the fact that he returned to work and gone on to work in the full performance of his job and so they would have calculated that when they did the the percentages to be  and then we would have the second case some ten months later a brand new accident and in the middle we have decided to cases the facts are in the record as in this case you suggested we can sort of go walk and decide well at this in this happened there the commission found that basically there were two separate distinct cases and as such the they were able to make an award for an eighty two in the first case and i suspect that they base that largely on the fact that he was the facts of the second case which is that he now after the second injury suffered from restrictions the preclude him from going back to his job the situation to change the unit and as such i think that's what the commission considered when making the room do we still have the same injury no no no we don't and i suggest that we don't have the same injury because after the first accident he was going to fully release after the second accident there's a chip there's an obvious changes medical condition because now he has only restrictions of a medium medium restrictions that prevent him from going back to his usual line of work there's a definite change in his medical condition had balances on them and there was an entry made on the stipulation sheet there is a feeling by the parties that the bills have been paid pursuant to contract and that there may be some balance bills that are hanging out there specific schedule of loss and that's somewhat we're talking we're here talking about section eight the i would note to the court as mr collins states again that during the trial of this matter they went so far down the