far no further he made terminations that were turned on the credibility of the climate the respondent here those factual determinations were supported by substantive evidence you apply the law properly and what has happened is the b r b has a since they decided they don't like the result and they want to change that the judge tried the case initially i don't need to get too much into the the facts but i think it's kind of critical to know at least interesting that the judge held in his opinion that the claimants demeanor during the hearing failed to create any confidence in the accuracy of his testimony or even his motivation to at least attempt to tell the truth and goes on to say in short the record demonstrates the claimant has a clear history of saying whatever he believes it is a financial best interest therefore i give his testimony and any medical evidence based on his history or subjective reports almost no weight all right so let me ask you this what happened factually i'm having a lot of trouble with this accident is this guy's in like some sort of basket and there's some indication that he's like drop or ten feet and that doesn't seem like your typical i bent over and pulled my back and now i can't work anymore workers comp claim and i and i put i'm not saying that all workers comp claims are like that i'm saying that those are the ones that typically yield this kind of derision about it's sort of a fake injury this sounds like the kind of accident that could create a real injury just didn't agree that it was a ten he said something happened he didn't necessarily agree that were  other people there i mean this guy didn't just get dropped in a basket by himself what what was the evidence about i'm just having trouble understanding what happened with the i mean there anybody to tell us besides this guy that nobody believes what happened i didn't necessarily have to bring anybody in for i don't believe there's nobody else or testimony test to try to testify about it we really don't know was he dropped in feet or did he just kind of stumble or you know pull his back or whatever but what we know thing mentioned the trial basically he takes a position that's the only time the man told the truth so whether it was a ten foot fall if i can hear an accident you may not realize me there was a guy who is on everest and he went out to relieve himself and he falls down or they went to pick him up and got him up and he thought he was fine and two hours later he died of internal energy injuries so we know that you can think you're not you're ok and you're not and so a lot of it to me is what happened like what ha condition occurred at work or it was created it works it's not my burden to prove either one of those things necessarily we take the position that didn't happen as he described the judge takes a position didn't happen as he described to be that may that was his burning he didn't need it to the extent as you say you're asking about what might have happened what could have happened to do you agree there was an injury at risk to the extent of how serious that injury was i mean for him to intreat i don't agree that he felt in feature obviously but i understand he says that because he sends a lot of things overturning the well that the court should affirm the in this case the the l g s finding provided that it is a good also supported by substantial evidence unless the eight unless the court finds this court finds that there was not them on factual issues where in less and less the court agrees that there was no substantial evidence to support the a l j and that's what the b r b s come back and said there's no substantial evidence but they know that and there is just the substituting their judgment saying and the substantial evidence that they say robots are is inconsistent with the l g s finding is the fact that this man with his third party action in a separate lawsuit who's already testified and prove that he will do whatever it j found that there was a story that resolved and that was it so there was an event not necessarily a ten foot drop the judge doesn't know because the facts don't they're not there to establish that in that burden is on the claimant or in this case respondent and what he had as a result of anything was a back strain as diagnosed by the first doctor he saw and evidence of significant significant a substantial preexisting conditions nobody's arguing that he didn't have  conditions he had a lot of had a bad bout a lot of other medical problems with the us it may there was an injury but that injury resolved from whatever the event was both of those are his burden now there is an argument being made by the respondent that this panel should change the fifth circuit flaw in that regard and move from that placing the burden on the plaintiff to establish the elements to get his promise facia case to one where mere allegation of an injury  sufficient in the credibility determination is irrelevant to that basically he is asking this court to say if the claimant comes in and says i'm hurt the burden shifts to me as the employer or the carrier to absence of a presumption that's that's too broad of an interpretation doesn't really understand what twenty eight does yes you have the burden of proof when you have it you have a harm or an injury you have the burden of proving that condition existed then you get the benefit of the presumption of causation then i'm in a position of having your will but it's a very real benefit this is not some nullity just because you're right you have some burden is like any other plan of haitian kids you prove certain things and you should he have done it assuming that that we have to credit the a l j is finding that mr meeks has no credibility why should he have done to prove this a ten foot drop or whatever what what are we missing here i suppose are going to try to anybody testified and i'm reasonably certain there were other people in the past i thought there were handwritten statements from people who were in the basket that said the personal basket was lowered too quickly the boat was pitching in rough seas there was miscommunication between the crane operator and people on the vessel the basket smashed against the saddle rail the vessel and danced to hit the deck at least twice once or twice and tossed men from the platform onto the deck along with the groceries they had in the basket  in that evidence or not the statements were i don't wish to specifically recall the statements came and i suspect they did but again there's nothing in there about a ten foot flawless and hit something they went down to the day the judge had all that to do we know if any of them elfs claim that they were injured and put in a claim i'm not aware of any other claims as i stand here i'm not trying to be cute i just don't remember anybody else making a claim on it it's i want to try and i don't think there was anything else no you don't have any that i've seen that necessarily they dealt with a small medical only he did have a back issue of some sort because he had surgery but but the issue is it was not related to the accident incident whatever  he a l j is based on his review and his opportunity to see the demeanor of the of the claimant his review of the medical records his determination as to which expert was to be believed all this falls with clearly with his purview maybe nobody like rb did not like that it came down this way but it doesn't change the fact that doesn't empower them to simply say we don't like your decision as long as he has substantial evidence to support the decision and he says you can't believe anything the man says always gets as minor strain he could go back to work he was good to go and were done then they said as the courts probably aware it went up wants to be rb you said you didn't consider twenty a although i'm sure he's crisis had he said i don't need to consider twenty has anyone heard it as it may he said i'll look at twenty eight if you tell me to he's not hurt right he doesn't have a back injury he might have a loose tooth or something like that he doesn't have a back injury of that beyond the streng deference to the b european the technical sense of standard view but they are and a board that's tasked with they do this every day and we don't ok every single day they're dealing with injured claimants and so on and so forth why would they so feels obviously that alle j was wrong to deny relief so how can we make sense of that and why are we in sort of a better position than they are to understand to the syria the law respectively observed that they are not in a better position than the way to determine what this gentleman's claim was and how the evil bully was no they're not letting in the l j but are they better than us i realize we're the the higher court so to speak so i mean i get all that but they are a more specialized court should we show them any difference in sort of a practical sense even not a legal sense not under the circumstances where they have decided that they're going to apply the law in a way that's not the way the law was intended to be applied and that is this twenty a presumption and how it's actually applied in this case what they did quite simply is say look we don't care about the floods even if you have substantial flags twenty a says he wins and they may miss the critical part of this and why so many difference they missed the critical p you still have to show some harm you don't get to come in and say we are beat oh we think that was wrong because that's essentially what they've done they have something to do on that critical factual issue their judgment there's no particular reason they should be given any difference in that they that's the can see that point and he had a surgery and therefore he must have had a home no it doesn't follow from that that he had a hormone when the facts indicate that with respect to here is complaints for what arose out of this  they simply are not to be believed and the doctors affably doctors are not going to operate on the condition without legitimate complaints of that's the reality of his thirty first year doing this they all say the same thing i don't operate on conditions i operate on symptoms are as consistent with somebody having pain as not having pain and the difference for the doctors is they believe their patient because that's what they do and they all day doesn't this particular patient that's correct there are lots of reasons people come and complain about pain it's for the courts aware specially if there's a financial literacy as a third party action floating around out there lots of reason doctors will accept that many of them perceive that they aren't like the advocate or the patient others like you very well could have had pain before the accident now here's his chance to fix it he may have we don't know but what we do know is that the finder of fact in this case at the first instance based on substantive evidence says no i don't think he would you have he hasn't shown the harm  after this injury this witnessed admitted injury admitted accident excuse me on the job presented no evidence that the the condition that his condition several months later within a month after that was consistent with offshore work or showed no injury in fact there's no evidence whatsoever to address one of mr smith's final points that the  as to what it was that happened in this transfer basket incident the a l j on page ten of his original decision purports to have an account of the statement by the supervisor who was not in the transfer basket and did not actually see the impact but his statement is the most extensive this is the employer's own witness and this is their exhibit it's employers exhibit number twenty two there's a short version which is one paragraph in a longer version that's just over a page long that contains a far more detailed and and different from the jays account of the course of events and the delay between the original fall it was there were two more transfers between then and the time mr meeks said you know my back is hurting too much i can't keep working and at that group and the transfer basket which was coming down as a swell with where there there were other people in the bass there were three other people with him through there is not a shred of evidence none of them was called those statements were introduced that support the dramatic the more dramatic story this is in fact the crux of this case it is a legal question whether the presumption was and that is not a question for the j exercise of his or her authority to evaluate conflicting evidence and make factual findings it is a legal question whether the presumption was invoked just as it is a legal question whether the presumption was remodeled by the employers of what i thought the question on the presumption is like could this accident have caused harm not did it but could it then we have to know what this accident is to know there we have his testimony about it we also have the that so it doesn't matter he can get up and say martians landed on this ship and showed me on the dank and i think now and then and you can go where yes that happened man that couldn't hurt therefore the presumptions invoked i mean is there any i know realize it's a ridiculous example but basically the l j is saying that's what he thinks of history almost precisely the example i was thinking of as i thought about this oral argument  that there may be a point at which the asserted mechanism and of injury is the d c circuit put it in a few older cases a mere wisp of fancy and if if the asserted mechanism of injury does not rise to that level then ok perhaps the employer doesn't have a burden of though i don't think there's much consequence of saying but no will bloodlust in the statute as written there is a presumption as soon as he files a claim with enough allegations to make up if the allegations make out a prime aphasia case and this is what the supreme court has said and us industries if the allegations of the claim make out a prime location case the burden is on the employer to come forward with evidence to the contrary now that may not be very difficult for the employer to do if the asserted mechanism of the injury is little green  from the record or why the old j question the credibility of of your client i understand there what might have been a video that showed that he was not as healthy as are healthier than he claimed or something is that what set off the a l j are can we were view the record and she some cross examination or something that didn't question his credibility or conflict between him and the doctor about the occurrence of the injury and they were not about his condition they were but he was caught in several he was caught in lies absolutely and he had filed false tax returns the l j seemed to come so that know the false income tax returns were the earlier ones he had filed that said he was he had only made sixteen or twenty thousand dollars in a year the amended tax returns for filed with a lawsuit and when he had this conversation claim pending those were the ones that accurately reported his income no no's no suggestion that those were in any way untrue but but yes he had filed fostex returns previously he had been convicted of a drug offense that was quite a ways in the distant past but he had been convicted of a drug offense and denied that he had had past injuries and did not report that when  when he was interviewing for the job on the basis of those things they l j found him and those things and the lies he was caught in deposition none of which was central they were exactly such things as what you might have to live in front of the assuming he gets to the sim you got to the perception stage yes why can't we say that there's substantial evidence to support the conclusion that everything he told these doctors was and trade he's got the video he's got why can't isn't there substantial evidence that this presumption was rebutted the l g a himself agreed in his final decision but if the presumption was invoked there was no substantial evidence to there was no evidence that the claimants condition that in a remote remember again we have four doctors who testified here to the room were defense medical examiners defense medical examiners did not approach i can assure you or collision whatever caused anything other than a back sprain and chipped i think what you said is precisely correct they l j found there was no credible evidence to support that those were the facts what r but then evidence with everything he put into so to say yes the algae i disbelieve i mean it's sort of a catch twenty two you say you can lie about whatever you want to use an allegation and then what you get there in the in the about this this and this that's evidence yes it is but that he lied is not evidence to the contrary it's not evidence that the injury didn't occur as asserted and as admitted until the l j starts well i thought the negative yes that doesn't tell us anything about whether the herniated discs and all of the objective tests that were done there after i mean that that wasn't the end of the treatment and that doctor didn't say oh he can go back to work he said he needs a visible therapy and then in ten days he should be able to go back to work this was a prediction not an examination and medical opinion that he was able to go back to work that his condition was healed that it had been indeed as an issue as the doctor initially thought only a strain would then have an m r i that shows five levels of seriously disintegrated lower  discs and several levels of cervical disc her knee ations those are dangerous conditions that he should not be attempting any significant work he certainly shouldn't be doing transfer basket which is the kind of thing required by the offshore work he was doing  the the office of the presumption as the supreme court has told us is to control the result where there is an entire lack of competent evidence that's the supreme court's first look at the presumption that's what section twenty presumptions do they control the result whether it's an entire lack of competent evidence if the claimant's testimony is thrown out and there's no competent evidence in support of the c only a little bit not enough to to furnish a basis for a decision on the other hand there is no evidence to the contrary the employer could have drawn in the doctors who said it has all these herniated discs it's the it's at least aggravated by this on the job of the employer could have asked them in deposition or at a hearing would your opinion that it's the result of th injury change if you learned that the claimants account of what happened there was not altogether true if it had not been a ten foot fall if it was merely being jostled i think is the word that appears in condition brief even the l j didn't say that he just said well i don't know what happened but we do have this exhibit the employer's exhibit twenty two the tells a bit of a different story and still i not by an eye witness the employer had access to the other people who were there presumably they didn't bring in the other people to testify there was no ten foot fall it was just a bump it was incapable of having caused any told them it certainly was not true that as the ail chase said the doctors opinions were entirely based on his subjective compliance and description of things the m r i readings could not be faked the damage that the surgeon found when he opened up the low back could not have been faked those were objective indications that there was a seriously disabling condition and there is a complete absence of any evidence to show that his back before this event was symptomatic  us if we conclude that the b or b overreached in setting aside the ale j s findings and sort of substituting its own what is the right and i know that's not the outcome you want but if if that is our conclusion what is the judgment obviously i would prefer that it be picked back rather than that the procedurally the right thing to do if we conclude that your opponent has basically said look the b r b way overstepped what it's supposed to do it kind of turned itself into o j and that's not right if we were to agree with that then procedurally what do you do you certainly would have to vacate the board's decision on the ale j s decision on bream and i would suppose you would either you would take it back to the board to take another look under correct legal principles which the cord court might articulate to say under those principles which we now are taking late there's only one possible result the board could have reached and whatever that is i really doubt however benefit i'm going to other ways or any benefit to hearing more from a o j and i gotta get the feeling to be or be thought let's not mess around with a third version of the a l j where is you know i think judge barnes was saying send it back again you're correct in what you're saying but send it back again the other two said second decision for not taking it back to the a l j again the l j didn't say if the presumption was invoked there is no evidence to the contrary to buy they don't care who sent them so you know that's why i think the critical question is what does it take to invoke the presumption and if you can invoke it with the claimants direct testimony plus his doctor saying it's causally related and the employers want to defense medical examiner which he obviously had prior back problems and the disagreement is the degree to which these prior back problems are really the cause of the surgery etc etc or whether there was an intervening incident that caused that and it can only be speculation that there was there isn't the slightest evidence that there was and there isn't any evidence from the doctors that that's a possibility i mean of course it's always a theoretical theoretical possibility but there's no evidence of anything like that have but just as there's  evidence that he got in a fight or fell down or whatever in the intervening incident being this one in other words you you pretty much x ray anybody or m r i anybody who's fifty and they're going to have a completely messed up shoulder back neck you know whatever and they're still living their life right and so a lot of it is as your opponent said the subjective complaint of the person and we know that nobody believes your client and he says i was minute he was bending down pulling weeds now that you know i thought that point i think they all jay is get is really stretching the bounds of what's reasonable already but what's to say that your client wasn't in great pain to begin with and was looking for something to say oh ah ha and now we have the jostle i'm going to claim that because it is not unheard of in the history of workers comp for somebody to latch on to a seeming work or work related injury to now cover everything that ever happened to them he had cleared the employer's pre hire physical with the same doctor dr goodman and he had been working off shore and not for very long on this particular job but it did been he had been laid off previously been on unemployment for a couple of months but before that he'd been making fifty sixty thousand dollars a year doing strenuous work again what it is that's necessary to invoke the presumption that whether enough has been done to invoke it like whether enough has been submitted to rebut it if it has been invoked is a question of law it is not does not call for the assessment of the relative weight of conflicting evidence that's what's for the a l j once you get there but you don't get there until step three of the process number one is the but it's a legal question as the cases we've cited thank pages twenty six through twenty eight of our brief from the first circuit on the ninth circuit recent cases that are the first that have actually addressed this and have said no that's a quote that whether the evidence to rebut submitted in rebuttal is substantial evidence to the contrary is a question of law and forty or the question whether whatever it takes to invoke the presumption whether it's just allegations or what do you say to the herniated disk argument that can't be faked and therefore he did have prior back on planes he lied on his employment physical for employment applications that's one of the issues that the judge looked and said like a lot he lied about his that that gets worse because of the accident he's entitled to benefits if it gets an aggravation with that as a finding aside and the judge specifically said there was no aggravation you can't get past that as much as they try to and there you the concept of the keep dancing around this issue of the presumption under twenty because it's critical in this case in order to have the benefit of the twenty a presumption it's not enough that you  you have to prove your plan a facial case it's well established a circuit law is due to reach on the supreme court where they didn't really talk much about her directly on that issue but did he did receive treatment in tipper all vices he went he went through physical therapy was he was worse after whatever happened on the boat than before so isn't that a promise i should case of aggravation of preexisting injury no ma'am that's a series of events based on his credibility necessarily because all it shows you if you don't get it temporarily when he got those examinations and those tests they prove that that was condition was there before the yes no matter what he had snow says he had all kinds of dinner degeneration he had all that before points out you did my back over like a disaster at this point but i get to life and i'm not symptomatic the way he becomes disabling and compensable and harm within the act when it becomes what back up and down on his income tax any immediate and under oath that he lied about that becomes if you answer this isn't the question that had he if he in fact was not experiencing pain would your opinion be different no ma'am because it pain all of this treatment was unnecessary no ma'am i guess i didn't i didn't necessarily have to i didn't have to prove that it was i mean our last months maybe the second p s assuming we disagree with you on the provocation case then what other doctors with afterwards because they operate my argument was look that saddam had them to the us and that's why we didn't have to go after he still has that burden he didn't carry and i understand you're asking me i think that well if we find somehow he did carry it despite the evidence