the commission reports claiming he's i've stated in my brief first one of the errors in the case was finally sees i'm not going to stand here and tell you that there's not evidence in the records that supports i believe that the finding of disease in this case was against the manifest weight i base that on not only quality of the expert opinion that was contrary to the presence of seeds or the  with occupational receives we actually define eternal state and it stated in the alternative you either must prove a functional impairment related to that disease or and i'll quote from the the event of becoming disabled from running for wages at the work in which the employee missing games when last exposed to the hazards of the occupation seize by the employer from whom he or she claims compensation so now let's l there is no testimony or evidence of any functional and care that this gentleman suffered and as i say the commission did find functional impairment so now we're talking solely about the second prong of the definition  definition which we have to the difference is whether disablement and again we're using a statutory term to determine whether he satisfies it and it says the event of becoming disabled from earning always there was no event in this case this gentleman testified but for pig laid off i would have continued to work in fact he signed up on of even having in that seat or being able to act on that knowledge and tell after he had been laid off retired and took his pension as an example i guess i could drop below justice  the proposition that the event can be an occupational disease causing the disable me causing you leave work and all of those cases to claim i was informed of an injury or disease and act on there was none of that he had no ability he had at the time he heard he had an occupational disease no ability to go back to that job if he wanted partially temporary one on the form well to true answers to that number one that is what the evidence takes but number two the commission found no functional impairment that is not the basis for their reversal in this case said no one is taken there with that finding of no functional and error but we could do from the commission on any on evidence that's based  it's significant also on that issue but this gentleman was screaming for black and yet he did not present any evidence at trial of a positive finding a black but we were there is evidence that he or that would be contrary to the evidence in this case there is no functional impairment that this gentleman suffered clearly that is the case here that's what the commission that he could not to his job from a functional standpoint that that was not a consideration at all he got laid off decided to retire god bless but that's not an event of becoming this are found compensable beach things are passed on we want to make sure that limited resource is used appropriately to not require an employer pay for a disablement that was not present and clearly wasn't present when you read the definition that the legislature has given this or determining whether disabilit his decision to leave employment as a coal miner had already been made there was nothing in other words at that point entirely if the employer wanted to do something it could do this man had separated himself you tell us why that is that mr words are so i'm terribly wrong it's very difficult for me to describe it if you look at the deposition testimony each one says their coworkers  impairment may not be subject to being measured by momentary function testing but pulmonary function testing has a large range of normal one hundred twenty percent of your normal to eighty percent this arranger normal so you may not be out of the rang what you see on that x ray are many many very small stars and at the sight of each scar there's a loss of function i don't know anything in the actress's you have to have a certain amount of loss of function i also agree some time in their lives and it was easy whatsoever then his zero or one negative but close in and out then they had one over zero oz of x or nothing else and then it progressed you're seeing a still picture of this man at his time none of us know if that's going to progress or not but the award is for the disease it's the best we can do is to perfect law no but it's the best thing to do and the award is not because he left that there are two ways to measure one is against that range of impairment but the better way to measure it is against you you may have been able to lift a bench press two hundred fifty pounds for your injury now your  living while they can do it i always have the story that i tell the commission and others that imagine that joe coal miner sitting in his chair watching t v late at night thinking about going to work the next day cross not a question kind of quick to call him how he's going to continue as all of us would in our own way to provide for the family to do what's necessary at the age she is therefore i had to make it as simple as possible testified that this gentleman had no been on the tory limit to exercise and he testified further that he could not say this gentleman is pulmonary function was reduced from what it was thirty years for and that was on questioning by myself because thirty years before predates its employment as a coal mine if the expert  event you have to deal with are we going to say that if there is something that can be supplied after the individual leaves his employment as a recently why he left his some point that's that's really the crux of the issue here can you supplied that ex post facto the as i say the cases mr was sort of cited if you look at them they all are cases where someone's told you've got busy so perhaps it back problem you can't lift any more than fifty pounds and they say ok i'm gone in the case that you decided regarding the wage differential that was someone who i think had an arm injury and they were told you can't lift that much or more can't remember what his job was he acted up there was an event or we point to allow an event to be something that's created by going and getting an expert long after the individual leaves where to say you know you can't live more than fifty pounds and then allow that individual to say hey i'm disabled from that last job where i got laid off is that what we're going to allow is that what the legislature wanted but they wrote the statute the way they did shouldn't we reserve that type of award for those people should definitely are limited in what they can do when they act upon it in their job to their detriment that seems to be the