radiologist dr alexander and the existence of those two experts is enough evidence to support the commission on question z so basically your position is the second or substitute is be against the manifest weight of evidence and in all honesty i can see why the circuit court got that pollution but not allowing the commission the opportunity to fit in in this case there was also a dissent this case so you know that might have had factor play in this as well but i mean we'll never know what the commission what i've done every man because it was appealed up here and certainly there was more to do than just i mean they baked hated the decision but they didn't say and you need to deny benefits which in that case then absolutely appealing up here would have been the correct decision because there would be no doubt that the commission would be denying benefits in this case they simply said we find it against the manifest way the evidence we're vacating the problem we get into without specific findings from the circuit or because certainly there were five statutes at issue in this case before the circuit court and he want to vacate their decision and they technically still could have found on  that he had overheard them upon the houses they could have been all that he met one out but he didn't meet notice they could find that he didn't leave one they could find that maybe as a matter of law they should have considered section nineteen it not found it to be applicable which is kind of saying we're just going to pay for this statue ever so there were a few things they could have done on remained the on just denial and certainly the circuit court said issue a decision denying benefits when it gets back down there then yeah benefits and it all ended up back up here your first step would be to go back and look at the original commission decision to see if it was against them and could you tell us what you think again that would be a helpful  thing to have happened in this case given where you are but at this point you can only speculate what the commission what you can speculate what the circuit court really meant and without sending it back down we really don't know  with that said when we were in front of the circuit court we we had numerous issues with regard to the commission decision and basically there are five statutes that are played here section one day the finding of an occupational they found over say he met that based on his timely home unary complaints right now the evidence in the record shows that his pulmonary system was excellent his fifty's or well within the range of normal they improve hauser saying this here we find credible and we have some medical records which this isn't like the hicks case where no one gets any treatment so it's not this positive of whether or not the conditions finally he goes to his treating doctor and sa i don't have any shortness of breath both before and after he leaves the mine so this is the only piece of evidence you have for her want it because that's what they base it on it's not you know anything other than it was timely file faced on his highly  that you cannot reconcile a finding of section one half for november third ninety ninety nine with a finding of notice for november november third nineteen or november third two thousand and four which was the date to b s did improve despite the fact that he was smoking two packs a day the the problem with the commission decision is they simply say that section nineteen isn't applicable and while it's within the commission discretion to decide if they want to apply it or use it or you or reduce the benefits because they find that someone's you know doing something that's imperiling and retarding recovery or imperiling their ability to get better in this case you have to go back to the original complaint that we found for want to shortness of breath he is smoking two packs of cigarettes a day he has filed a claim for pulmonary  i can't think of a more applicable case than a case for pulmonary benefits and a two pack a day smoker where nineteen the should at least be consider not saying the commission has to do it but the commission should  considering it in these sort of cases and in this they just say well it's not even up it's like oh the statutes are applicable now if you you know if you choose not to reduce the benefits for some reason fine but they are all so there's nothing there so you have all of this evidence in the record which leads to a conclusion that some of these statutes are either being ignored or blocked over because you can't meet but the definition of time gap means yeah there's five years or close to it between when he left the mine and when he filed his claim but there was only sixty days between the time he got his first diagnosis of pneumonia hosts and when he filed his claim so it i don't think it's practical to assign the coal miner the responsibility the know he's got the disease before he gets his x ray in the hopes and so my definition of as soon as practical would start to run