before the court today the first is when does the statute of limitations under section thirteen a of the longshore and harbor workers compensation act begin to run and the second issue which is brought by the cross petitioner they claim it is was the nature of his disability temporary or permanent at the time of his retirement on the first issue it is petitioners contention that the administrative law judge is finding as affirmed by the benefits review board that his claim for compensation benefits was timely that's i'm having some difficulty he tract as affirmed by the benefits review board was unsupported by the appropriate legal standard it was in accordance with law nor was it supported by substantial evidence here the administrative law judge found that the claimants march two thousand and eight claim for compensation benefits was timely despite the fact that the claimant had not worked had stopped working for us to say approximately five and a half years prior to when he filed a claim to need m judge further found that the statue of limitations did not begin to run until some six months after the claim had actually filed his claim in september of two thousand and eight the judge reason that the claim for benefits do not begin to run until the claimant was aware of the medical relationship between his employment with s s a and his injury so specifically he made a medical report that tied his work he will not our position is that he does not and specifically on the record here the claimant had tied his worsening subject of complaints with his employment with us to say there's a number of citations to the record so you disagree with the findings we do disagree with the so what is there what is there in the record that would support your argument that even without a medical report the claimant should have been aware that he  petitioners excerpt the records on that page the claimant testify that certain activities at work such as kneeling bending stooping climbing all increase his right knee pain while he was employed by s s a terminals but how would he think what they were saying is that common sense things that must be the basis for my claim well that's most pain is medical treatment sure but what we're looking at is where lawyers and he's not what we're  looking at is a claim for compensation benefits and section thirteen provides a specific statute limitations for compensation claims and once the claimant has the requisite knowledge under section thirteen the claim accrues in iraq was that knowledge yes focusing on it has to be linked to a particular employee not just be at an injury that is related to work but it has to be related to work with a specific employer yes and here he had tied his specific work with s s a to his disability and has decreasing earning power at what point what point in the record are you looking to to say that he tie his disability and to his work with s s that that would be at the time of retirement which was in february of two thousand and two he actually reported he was treating dr in march of two thousand and two right after he had retired that he had been forced to do increased work at s s a terminals and that increased work which was due to personnel changes had caused him to undergo i'm sorry it caused him to experience increased pain about his right knee where is that in the record that would be  zero eight zero and history undoctored actually told that retirement will actually help his niece symptoms and mr kerry one had testified that his retirement he planned to retire at the age of sixty five but because of his increasingly pain he was forced to retire at the age of fifty seven and that throughout this period he still receiving medical benefits somewhat it's yes and no  because he had actually seen his doctor a month after his retirement i believe madsen paid for that trip you know i think that was up through like two thousand and six right so there was no treatment from that march two thousand and two examination to two not a site specific injury so to speak it's this humility that yes he is different yes but his claim for compensation benefits accrued at the time of retirement because he was fully aware of the injury would also say that his work with us have resulted in increased pain and that that increased pain was due to a specific work activities for us to say and also that that increased pain is what caused him to retire and did ministry of law judge found that he needed to have awareness of the medical relationship between his work and his injury and that's not the correct legal standard that's not required what do you say is the correct legal it's simply awareness he could be subject  that his work is causing him an injury which in this case is pain but that's been true for virtually all of his work life how does he again will or is he's not obviously t were to my most recent employer if he's been working in this part with this plane what second remember what section thirteen a provides is that the claimant needs to be aware of the relationship between his work and his injury lawyer he has to be able to tie it to a particular employer not just his globally his work i don't think it actually requires that your honor that section thirteen says that if he let me state what the section thirteen standard is that the statue of limitations doesn't begin to run out of until the claimant is aware or by the exercise of reasonable diligence should have been aware of the relationship between his injury and the employment doesn't see what do we do with at least skidmore deference that we give to the position of the director of the office of workers compensation programs because it appears that the position of that office is in conflict with your position what do we do with that in this case it's our position that the directors litigating position is an intel that any difference not even skidmore deference because this isn't an interpretation of the act or of you can point to an instance where the where the director took a contrary position on similar fines substantially similar ones i'm not sure if there's any case with substantially the facts of this one your honor it's a at the time of retirement moving forward was supported by substantial evidence none of the medical experts in this case found a condition to be at max medical improvement and all the medical experts agree that the claim was in need of a total knee replacement to improve his condition and they all agreed that the total knee replacement would help mr carry ons condition once he had the surgery that just seems like such an odd construct to me that i mean if you are disabled if he didn't plan to have surgery they kept talking about when he planned to have surgery but if he didn't plan or something happened or he has a heart condition and he can't have surgery is he somehow transformed and that seems to me at odds with how you define temporary and permanent i just don't understand how a contingency in the future changes the fixation of your disability well i agree your honor and you agree with what i agree that in this case it wasn't necessarily a contingency surgery he was a candidate for knee replacement surgery as of two thousand the year two thousand because his condition was bone on bone at that point right so it was essentially up to him to have the surgery once the subjective complaints were struck point that you can no longer take it so you could have had that surgery in two thousand  but that but you can't so so it is a contingency of having the surgery well there's nothing in the record that indicates that he wasn't going to have the surgery but why why would it matter that's what i'm having some actually improved his condition to a state that would be better than it was at the time of retirement i know but that is you know just walk into any orthopedic shop and there will be they'll be looking at redos of knee surgery th didn't turn out so well you know was not as they say expected results not malpractise not expected results so you know i just i'm having some trouble from a legal standpoint figuring out why either is temporarily disable henri's permanently disabled if he is permanently disabled it's possible if he went and got the surgery then you would reevaluate correct that's true and if so why wouldn't he during the period when he is actually permanently disabled up and to when he does or does not have the surgery and it turns out well why isn't he permanently disabled well in this case what's missing is we don't know what the normal period of healing is for this injury there's nothing in the record that indicates that the treating doctor when he retired thought that his subjective complaints would actually improve following retirement so if you consider the chill of trauma injury up to the date of retirement as an aggravation and an injury then there was a normal period of healing following the retirement that had to  before it could be deemed permanent did you want to save your remaining time government i don't think i please the court matthew boyle on behalf of the director office of workers compensation programs hours i'll start with the time when this issue which is pretty straightforward section thirteen a of a long shore access that he claimants time does not begin to run until he is aware or should be aware of the relationship between his injury and is now that is a statutory standard obviously but whether he knew or whether he should have known is a factual determination the day and what the l g a reasonably found here is that mr carr didn't know and should have known of his of the relationship between with s s a i was injury and as employment with s s a until two thousand and eight because that was the first time that anyone told him that he had actually experienced an injury with i continued to pay his medical for his medical treatment not only while he was employed with as i say but for five years after he retired from s s thousand to count it was just go ahead please if it your position that until there is a  he simply didn't know as a layman what cumulative trauma was he assumes i injured my knee with mattson i mean if i you know if i injured my knee in high school sports and every once in a while it acts up i don't think of myself while i'm having a cumulative trauma today hero what he what the reason he said he retired was because he was having increasing pain but this court on the board of both held that increasing pain alone as a matter of law is not sufficient to give one notice that there is injury so that sort of defeats the pain is enough argument going along with that the l g found that mr kerry in a reasonable believe that that increasing disability when he fully reaches maximum medical improvement a maximum medical improvement is the point at which normal and natural healing is no longer likely a kind of can also be permanent if his disability appears to be of a lengthy period or a lasting or include with the assistance a surgical procedures based on the case well yes it does or so what what is your position and what is your response to opposing counsel's argument that it but there was not  permanency until after the surgery that was contemplated well the what the case law says your honor is that if there is a surgery imminent then the per the person can be considered to be temporary until that surgery has occurred and until the recovery period after that surgery they can be reevaluated there was no surgery image here in two thousand and two fact dr caldwell specifically said you should not have the surgery now because it won't help your functioning as such they need only last replacement is only last so long do we need a special rule for joint replacements i don't think so so so if you'd scheduled surgery already your position would be slightly different so maybe we'd have to the the one month that i just came up with is the boardwalk or decision the edwards case out of the board said where the claimant had three knee surgeries in two years and his condition was improving by fifty the the monta case was not a surgery case but it said whether clint was having pain management and is and was improving his condition was approving over the course of the year until that treatment was arguments and he said that he hadn't actually need condition hadn't reached the maximum medical improvement as an alternative argument what does that do to the argument of record where he says that mr kerry and told be told not to call well that he was getting more and more symptomatic in his present job because his work at lay off i'm assuming a bunch of personnel that he had to do some extra work and he says that this statement evidence is the fact that he was aware that his present work was responsible for his i don't think it does your honor because like that again that just goes to his may please the court i'm joshua go on appearing on behalf of mr cobb i join of course everything that has been argued on behalf of the director we fully agree with the director on both points as the director fully agrees with us on both points the if i might add one thing to my brother boyle's final answer i think the the critical distinction between permanent disability and temporary disability has got to relate to disability not medical condition if we have a climate whose spine has been severed and who is has no history of any work except manual work in the past that claimant is virtually certain to be permanently totally disabled they're not going to be returnable to employment they're going to be bed bound in fact but their current condition may involve intractable pain for which surgery is expected to improve their condition yes they will get better yes they will be in treatment yes they will have a period of recuperation from that surgery but the outcome of that treatment and that healing period is not going to be the least amelioration of the disability and if what we're trying to determine is not whether the physical condition the overall condition is temporary or permanent but whether the disability is permanent the question answers itself that climate is not going to be returned to employ ability by that treatment and recuperation period so the disability remains permanent despite the fact that that treatment is undertaken i'm having some trouble with that argument because i understood your colleague and everyone else to say if you did have surgery and things turned out well you might actually change the determination on disability is that not true not in this case no there's not the least evidence that you know i'm just saying let's say he had the surgery tomorrow and it's like amazing and he runs out of the hospital now wouldn't they we have value a absolute ok there is always there is always under this statute the decisions at can always can be revised if it turns out contrary to the expat expectations that the claimant does become employer will again absolutely but if the treatment is not expected to return to result in any disability of the ability to earn then the disability permanent even though the conditions are not how would you apply that in this case because if he ran out of the hospital with a new knee he could go back to work well to two points first the analysis of permanency or temporariness of mr koreans disability has to be judged initially by what that condition was in two thousand and two when he retired and at that point there was i  two thousand and eight that's not quite true it's true in the sense that there was no actual treatment proposed but mr kerry and continued to have to see his doctor and had annual evaluate revaluat of his in the each year between two thousand and two and two thousand and six and those were the bills that the previous employer mattson continued to pick up paying within the yes i had is not sufficient to put a claimant on notice of injury i remember that case rather well i was involved in it and was sitting in mr boyle seat at the time ok so would you tell me that precludes reliance on pain it's an indication of injury at a particular implying i can't and i wouldn't actually go so far as to try to support quite  has a an underlying condition which he has as here been told to expect will get worse he knows his knee is a mess every day he goes to work his knee hurts every exertion on the weekend his knee hurts he comes back from work every day and has to ice is neat he knows perfectly well that he has an underlying derangement of that need he's been told to expect that it is going to get worse by natural progression and that i think is the key that saves this case from any possibility of a time limitation barring him apart from the fact that laypeople do not understand the whole concept of cumulative trauma as an injury so i don't think any worker under the action be charged with recognizing that they have sustained an injury by just performing their duties with no  identifiable traumatic event but for in this case we don't even have to go so far as to say that that's not enough to make you aware of an injury because he had been told to expect that his condition would deteriorate over time and therefore of course if he continued to work his knee was going to hurt more and more so the fact that he knew his knee was hurting more and more with that work did not make him reasonably aware that it was the work that was causing further degeneration of the need he only knew it brought brought on more and more pain as time went on and therefore that his new condition was getting worse and worse but he had reason to understand reason which was bolstered by matheson's continuing to pay his medical bills that this was the natural progression of the arthritis set in motion by that traumatic court in that case was talking about when they talked about an awareness of pain is not an awareness of an injury they were talking about in terms of section thirteen requirement that the claimant have an injury that impairs this earning power so just simply being aware of pain of course does not tell someone that they are suffering an injury that will result in an earning impairment here what mr carry on had was increased pain that caused him to retire and thus he had direct was that awareness of an impairment of pleasure to have lawyers when all of your so well versed in this particular area and so familiar with the law so we appreciate it the case just argued s s a terminals versus i guess it is submitted and we're joined for the