and as i start out here i have to say that the pop quiz if i were able to make one would be to ask how many cases are being decided today with mr wertz and me doing two arguments and the answer is and so i can understand the commission looks at the one before it that's proper but i think it's also proper to look at that second and third one which is part stand wish if this is benign and the mile with an unlimited power of compromise the commission could say alright on these other two cases i have no evidence here's the big ones i know it's a latent progressive disease and given the guy a dollar so the guy knows that on his case he lost but that doesn't mean he can't come back if the other two happen how they take that into account i don't think they take into account not i'm not really sure that they understand it or know that a nd that's not a criticism of but but i think that that the farther you go up the the appellate chain the more the big pictures look at it and that's part of the big picture i don't know how the word persuasive can be used in there because at the end he just says yes or no the next thing is when they look at him as they should have recognized that it was irrelevant  to be read a radiologist let's say that's become the most qualified and wants his one over zero and one says negative zero or zero the first thing is that they can both be right they can both be right one looking at the x ray seeing some spots saying he was a tall man of thirty years i think it's he didn't beat the other guy looking you're seeing the very same thing and say you know what i think a lot of  coming for twenty five years i didn't hear this until yesterday or today what happened and the answer is well we respond different ways we learn things mr works very good attorney makes me think different ways makes me look at things in the day so that's back to my question so you have radiographic evidence that was the news let's say oh five last exposures all seven of them off right you have one that's done history is a sufficient basis that's a key word that's a sufficient basis to make a positive diagnosis of see that if you a negative x ray can never rule it out now that's just a medical fact it's  universal testimony and like with the two thousand thirteen case it's going to happen over and over and over and over and hopefully someday that will be recognised and it will provide us the bright lines we need instead of for let's say we have a negative  it is that the basis for that way was wrong and i think that and the basis being that you're saying was launched an aureole the wrong base the basis is that they relied on an x ray to say there was no c deputy that could be relied on as a matter of law because the universal testimony is that c w p as a latent and progressive disease can first manifest itself any time seven well thirteen no c w b that's a battle of the experts in the commission has to determine who they believe if they believe his experts and you have a failure parties is to find guidelines wherever i can so that mr wertz and i are coming up here and saying what p f t's mean and arguing about the lower limits and which one which predicts we're taking and are you about the x rays and what's on them and not every this one cannot rule out she'd have a pity because there is a statute of limitations problem or one of the problem here is it could be there and also the guy that gave it said it can't prove it out so we take look at at the case and the question is do we want to clear this up do we want to have certain guidelines because this won't hurt the employer in the long run because if we have if we recognize one app if we do this all they have to do is have their x rays taken in a timely fashion then my argument is gone but until then we need to make a rule are nothing would change and it's very difficult to come up here and look at these case after case and in groundhog earth trying all to the pond and that the first thing you do is you separate those and how are we separating them by recent seem the most recent prevails but the same alas not necessarily if you g wrote years ago he likes to make these analogies and he made an analogy to shooting a rabbit and i forget the point he was trying to make you can shoot this it or you can shoot it it and that type of thing and my associate was working on  brief came to me and said i want to show you this before we send this to the court because i don't want to do something that's wrong and i said ok let me see and she referred to his argument is we a hair brained scheme and so i don't completely follow what he's saying but let me try to answer and see if i have see your question in this case there were chest x rays that were taken as far back as may seven now that's three months before this gentleman was last known that was under the line nyasha and in this particular case that may seventh two thousand and seven film was in a chair proof life to be readers for nine issue i think we can the reader also read that zero seven film and interpreted the film five years later in the same way so what that tells this is that whatever dr smith and alexander saw net that give their opinion because if they're reading that nine on film that was interpreted by nine ounces negative as positive just like they're reading the film five year olds later kirsan it if he's positive  experts were negative now the question becomes within the film be relevant as to his condition on august so whatever all of them were negative well if all of them were n became relatives of the credibility in her writing and i will refer you to the record it gave chase thirty three which is the conclusion page for the arbitrators twelve were identical given the chest films read by ny offices negative in two thousand and seven the changes seen by dr smith were not in mccomb yo says that argue that his opinion should be given less weight because you have four positive readings by the readers and four negative three so i mean that's well i don't have a point but best you know a coin toss that's not evidence if what you're looking at here comes down to simply flipping horney i mean that's you know that it's that close call that's not a preponderance of the evidence mr was sore has in the past said well as many as fifty percent could have pathologic evidence that's a possibility but keep in mind that means that the possibility is that's not a preponderance of the evidence a preponderance is just a little bit let's say oh we understand that but we i'm just trying to figure out where the dollar so i think not typically progress in fact in this case and stocker hauser was a witness i usually ask him that and it's probably in his festa money that ninety five percent of the cases don't progress and i suspect he said  didn't say it was so to say that they would die from it so extreme so that and that would mean of course if he did die and a death claim was filed he would still have to prove causation of death which is it i don't know if that's the right word it's a requirement that the claimant most meet for his claim to go forward it's not it it's not a requirement for the employer and i'll just i'll just read it no compensation shall be payable for or on account of an occupational disease unless disablement is here and to find occurs within two years after the day of the last exposure to the disease that's a requirement for the claim it's not a requirement that the respondent show that there's no disablement within two years it's a it's a really wired element of the is correct that you could develop new macone osis later in your career in mind there's no question that so the most relevant x ray says to the individuals condition they would be the later x rays no doubt about that in this particular case because the set of facts we have where those earlier films were interpreted by negative in their expert interpret same as possible the same way they interpreted those later films that goes through they are the way to be given their opinion but in general in answer to your question i don't believe any of my experts would say that if you do not have using this gentleman as an example evidence of a black one in two thousand baht two yeah trying to put guide rails on things things we can know when we're developing things we can depend on for consistency when you look at this case it's not just the argument read he actually for dr hauser he's not in there for all we know they didn't look at him dr mcfarland a long time treat or he's not to be read but he looked at many x rays and he put fibrosis fibrosis fibrosis severe and i can say that without being pejorative but but when i look at this pile of evidence and i i judge the pile of evidence they say number one their stuff in there that shouldn't be but if i'm not positive that i say there's definitely stuff that should have been  oh they're here for the benefit of the miner that's a load of belonging a government can you imagine a government agency saying oh we're here to screw the company and to help that work they could do that  put the the purpose also is to save money for far the company by making it safer because under our idea of work comp we put the burden on the employer not the general taxpayer because they're the ones who are in the best quite little for their their readings which is why only a few of them do it and they know that they're being counted because the nih ash has a certain amount that they think it should be and if the reader comes in with too few are too many they get somebody else only thing they use it for there are only about five hundred of them in the country and they're only there because the first federal blacklock well not at all because of illinois when you look at the country but they do it to make money the only why no who did it was a guy named dr sued who was reached now but it's ten years later he's figured it out anyway i can prove something and this is not an emotional argument but i can prove something about us being here think about it it's an x ray only case which means as you know you can take judicial notice that at least eighty percent of this kind of case is settled never go that far and it's settle for five percent but fifteen thousand this one could have been the same way but it wasn't it was here and it's probably more than math i was getting paid for so you got to ask why is it that this employer brings this case to here they couldn't settle for fifteen thousand dollars and now they're paying added up i don't know how much worse makes sixty seven thousand dollars they're not doing it to save money unless it's to save money on those other two cases a good way now are to keep the boot on the neck of the minor i don't know which but but it