we'd be good we wouldn't have an argument here at all the problem is that all these people have cross examination in the cross examination came out it was very clear that nobody really knew what any of the dates were apparently ms hankins and ms heard of it i don't know if i have it i might have it i don't have it i did tell my employer that i might have it and this report was like you know what no the fact that you thought you might have had it really isn't going to work here you know i'll be in there with the statue of limitations issue thing the difficult thing in duran years the woman said yes i thought he had it yes i thought it may be work related the supreme court turns around so this is a fair issue to be decided by the commission the commission you look at what people soft cross examination patients own lawyer asked her at the hearing did you know this was a work related injury on this day she said so how do we get out the petitioners testimony supports that's not really hankins isn't in there either and the reason this becomes an issue is when they are benched you have them getting seen by the doctor they finally get a diagnosis that's right you know we're all dealing with now dr hooks it up in may so we have it just as clean as can be she doesn't get surgery for over a year after that so now we're going to have her off we're paying t t t at a prior jobs rate that was actually less than what her r was at the top she was back because we've now pushed it back and you kind of get into this quandary of well should we be paying them what they were actually making if that's their injury day one year before the member station day that makes sense because that's what they would have been earning but i this case i think i i truly believe that it's a man that's why the evidence you cannot just pick and choose what you want out of the evidence you have to take their testimony in in full and the initial questions were very leading questions and that's fine that's how it's done at the docket but with that said when they actually have to answer the question it should probably be close and in this case it wasn't i mean we have the petitioner filed out saying no i did not know it was a work injury and it's her she is the reason a person according to theory and it's the reasonable employee it is her thought that matters as maybe ms shirley may have patter certainly what the average employee would have if she sees him or so we can't really a preview but she knows to the reasonable person either i mean in this case she sought medical treatment in april she goes  she gets the testing the doctor says it's positive but doesn't say anything else about it he says you need to go see dr brown so she goes see dark brown may twenty first says you know what you got bilateral cubital tunnel syndrome thank you go shoulder injury and i think they're related to your job and i mean it doesn't get more clear then it is spelled out a b c not this picket date from october to mark and that's what we have it's like a go fish update and a some point it should be the most reasonable it should it should well it's an eight minute best way but in all honesty it should be the most recently the one you know right before they're going to take off work so they get paid what they're supposed to get paid while they're off and so it's our position decision and if you look at the entire testimony it doesn't stand the other issues that we have on appeal is whether or not she actually had shoulder injury and there's no doubt when she would see dr brown on may twenty first at the time we get right back to it he said you've got shoulder pain maybe impingement maybe a laxity thing ok i think it's related to your job that it ok if that's all it happened i would not be standing here he gets an m r i there might be something there but again you know  apparent to the reasonable person which must be the difference between thinking you have it and knowing about it because it's not plainly apparent you know and in which case based on her testimony she didn't know until dr brown told her she told him that no hankins which was supported by the petitioner and this hankins went all over the board like ok let's pin her down when was this paperwork done well that was done horsman doctor's office that was a problem that wasn't december which is when you're in november when you thought wow where we have today and all of it it's you know it's the manifest way the evidence vandar is there something in the record to support it yeah but you're really cherry picking to do this and if you're going to do that there's no point to cross examine the witness and that's the problem with it it's  was worth related probably she'd seen it before but we can attribute that to the position or it's just it doesn't add up it's a if that house of cards and the bomb parts are real story and that's a problem that we have asked that manifestation they move back to the may twenty first two thousand and eight because it is absolutely clear what happened and by using that she will also be in the job that she was working when she was off work so she would be paid at the rate of pay that she was making when she was the cases is fairness and flexibility to cater first string of cases are mentioned here but it comes down to this you can't pick one thing and say it has to be the first state she knew about it has to be the last day before treatment you have to look for fairness and flexibility consider what happened in this case she started talking to them in november december saying i think i have this problem i think it's work relate i think there first of all there's no indication that she was not a reasonable person she put the dots connected the dots in around january and told them to the point that she filled out the paperwork she testified that as of january she had made up her mind to seek medical treatment she did go to the doctor on april tenth i believe it was not the testing and yes it's true that on may twenty first that's when she went to  very funny that day is incorrect i don't think that's supported by the evidence the evidence was it was a round january sixth when she filled out the paperwork so looking at it for the fairness of the employers and it's not just insurance two different lawyers here she was working for sam's she got the symptoms under sam's she connected the dots every port to were having trouble getting they went off her eyes apparently i don't think you'll find any evidence in there as contrasted with other cases that the condition was worsening i think the rant is quite a bit different in duran the person claiming had symptoms she reported that he was two and a half years later before she went to a doctor and said i've been having these problems off and on for a year and a half he had our case you have a steady stream figure how it is to get into i i believe that it's clear from my client's testimony at trial that's back in january two thousand and nine she wasn't sure what condition she had she wasn't sure whether it was related to her work or not and i think that if you look at the jury and case i think we deal with repetitive trauma cases frequently in my office and iran's a case that i i work with a lot and i would say this is a case that is maybe one of the most similar to iran that i've ever seen and particularly if you look at the testimony of the employee injury and her testimony the employee's testimony in duran was even more strong and surely it was that she felt that she probably had a work related vision and it was probably carpal tunnel and even in that case the supreme court said your understanding of your condition was sketchy and equivocal you could have a basic claim on what you thought you might  because i think you don't that we're getting into a very slippery slope here but what this case law in duran actually is that would essentially be requiring employees when they're having symptoms to report a claim right away otherwise they're playing time art i'm having symptoms so therefore i must know something's going on in my body therefore i have to report it otherwise my next time mark i think that that's not what transcends and i don't think that that is a enough they don't cite any case law to support their decision in this case so i'm not exactly sure what they were lying on other than what they tell us which was simply the testimony of my client and her supervisor and i think  read their testimony it's pretty clear that january sixth of two thousand and nine you don't like thing that occurred you know of is that they potentially had a conversation in which my client told her supervisor that she was having symptoms i throughout that entire procedure to keep the pressure on dr brown said yes i believe that that's why she's having these symptoms in her left shoulder and all the courts thus far the arbitrator the commission the circuit court found d required to diagnose cure the effects of an injury so even if the procedure was diagnostic in nature that's still something then lawyer is responsible for under the act to find out what exactly is going on in this woman's shoulder and why she had these problems and she hasn't gotten any better with all the conservative treatment she's had so with regard to the shoulder i do believe that the commission's decision affirming the arbitrator's decision that's a causal connection between to or after january sixth two thousand and ninety three when asked what she told her about her condition the paperwork she said you know i'm not for sure ok that's the petitioners testimony and then we have this hankins who recently testifies that the incident report was filled out she thought in december of two thousand and eight she didn't she reviewed it didn't remember what was in it that was fine so to try and figure out when all this happened she was asked if miss shirley had received any medical treatment at the time the report appreciate your trying to work from memory i get it but in this case it's not there i mean this arbitrary date is not working when they both say i don't know when i do and i didn't know then i thought i might but i didn't know duran that doesn't work the other issue with regard to ms rich's argument with regard to the shoulder yes diagnostic surgery employer would be responsible to pay that there's no question about it however it still has to be a work related injury dr brown's finding of causation was at the may twenty first two thousand and nine point he never says it again after that he doesn't say it again after he looks at the m r i he's definitely not saying that after the surgery and misprision who breathe on page twenty four she's got the then there are the highlighted portions of it make it real clear that what they found was wrong same thing that was on the other side that wasn't and her body part they really it's a genetic thing for that reason we say it's against the manifest way that