the given date of april twelfth two thousand and six as you're aware the allegation here is that it's a back injury you have repetitive nature subject to repetitive stress from the duties of ms swing during her work as a bartender or respond position she performed for fifteen years in the response argument is essentially based upon the the fact of the accident the as given an alleged is nine days after the employment relationship is said to it  when the repetitive injury was alleged here we have a ninety day gap in that case the court said that twelve day gap was not sufficient to render the claim stale and certain it's a myth that in this case nine days with airport not either  the fact is that manifestation day people talk two thousand and six in this case is reasonable and falls under the law this is the first data which the breakdown of her condition because of the repetitive injury was sufficient to have her that the accident days as given is correct and is not against the law and that the commission's decision unfortunately is therefore contrary to the law on this subject and what about the threshold overarching issue of notice date so that they can ascertain the facts and prepare a defense if necessary now in this case we have the respondents witness herself trish taylor testifying that as of the  the last time it's a miss when was employed with responding miss taylor in her capacity as a very rich manager which i'll get to in a moment was aware of the fact in this one was having back problems that were interfering with her work and that were apparently exacerbated by her work tryst taylor in her position as a beverage matter testified that her duties included checking on the bartenders including the swing making up their schedules and running the day to day operations for the particular event in question this is clearly a supervisory position you must assume that all those two looks assume that the supervisor notices she's having some back problems and let's assume the fire extent that the claimant says she's having bad problems the act requires and i think is sometimes a frequently overlooked issue that requires notice of an accident right and that notice even of an injury but in this case the problem is if you tell a supervisor that you have a back problem ok how does that put the employer i notice it all of an accident of an injury after i mean you know somebody could  is important because she testified that not only was she aware of this ongoing back problem but that this had been something that had been addressed by respondents during the course of his swing in performing her duties this was something to which they were responding they were aware that her work duties were continuing to affect this problem hand to make it worse and that she was having difficulty or would be going to do it anyway i mean you know there's what i'm struggling with somebody hurts yourself on a weekend activity exactly took place certainly if you have a worker who for instance falls off a scaffold and breaks their leg you can point to an exact moment an accident here we're talking about over head injury and so the the range of dates on which the court accident can be said case then we were saying that not only did the respondent have notice through trish taylor's knowledge of the situation but through her knowledge that's correct a bit of a how was that knowledge you know the boy well because you notice requirements have been interpreted by courts consistently to require that the person give you information about what has occurred to a person in a supervisory capacity here it's quite clear the trish taylor was in a supervisory capacity did have knowledge of the facts surrounding the the alleged accident as we're calling it even even even prior to here is there is here's the problem saying yes no this was given perhaps arguably of a condition mean the cause of the condition the accident happened at work does it yes and that's that's the point and that's why the accident date that was alleged in the application was context of the case so if it's a little bit unclear you know this wasn't the classic notice i think you sort of tacitly ignore list and so what are we doing here we're reviewing this is a matter of the commission decided that there was no no this so now you have the burden of showing that the app is it conclusion is fairly apparent where is the commission's decision clearly apparently wrong well in that state in that there was no notice within the forty five day requirement when clearly there was notice as the petitioner herself testify about her work involved the significant amount of lifting of the heavy bags of ice and bottles of liquor and so forth in cases of bottles and twisting and turning in order to reach the bottles and prepare drinks for customers in the in the nature of this repetitive activity her back throughout the course of her long employment with this responding began to have these problems he continued hand biogas by points in april two thousand employer candidate's them and gives them some light duty where is the notice that the accident or that the condition was were related how would the employer know it's worked really well that's in this record that's where again i have to  point to trish taylor's testimony where she was aware that there were a problem with her employer reported to her that her work was causing her these problems that's noticed that there is there's a condition only one serious was about the problem to the workers affecting her little trouble sitting because i put a cushion behind me when i'm sitting up there on the bench doesn't suggest that i've got a work compensable work accident doesn't well in their case it wasn't but there's no such allegation here that there was some sort of outside  please the court counsel of first and foremost i'd like to apologize they arrived late this morning and did not check in so you will not see my name on your check unless the recruiter kind of remember me in a new quest and i do april twelfth two thousand and six the commission affirms the circuit court goes so far as to state she has also failed to prove notice and causal connection counsel argues that it's somehow our burden  refute but it's actually his burden to try to convince you that all three of those decisions are wrong and that there is more evidence which leads to an opposite conclusion but there simply isn't this when he had a very longstanding history of low back problems with i'm going to treatment with her chiropractors in one nine hundred ninety four the fact that she was not working on april twelfth two thousand and six is not in and of itself determine it too because we are all aware of manifestation dates that kind of current after an employee ends his or her employment however i think it is significant that she was not in fact doing anything for this employer on that date although she was in fact still working her full time job as a merchandiser elsewhere but it sort of feeds into some of the problems that you then have with notice because if you're going to espouse the repetitive trauma culminating on april twelfth two thousand and six there's an even for on the part of the injured worker to then get something back to the employer letting them now i know think this is a work related problem if you look at what trish taylor's testimony and it is she says she does recall at some point that miss wing asked her for a stool to sit down sometimes that's the extent of it and when you you feed into they add or add to they have the fact that she had had ongoing back problems in one nine hundred ninety four it does it's nothing she in fact goes back to her chiropractor and receives the same kind of care she's been receiving he never actually makes any specific reference to a work manifestation or a work accident she's diagnosed with degenerative problems as early as september of two thousand and six she has increased low back pain without receiving trauma in january of two thousand and seven she is further increase low back pain after a fall outside of the workplace in december two thousand and seven and dr cole who is there examining position says she has one standing back pain made worse with sitting standing bending and walking petitioner now obviously there's other evidence to consider as well but the fact that these were i'm going back on this for many years all those years were during the period of her employment with respond as you take that into account and consider