that the director erred in denying his application and that in doing so the decision was arbitrary and capricious in that it was not based upon substantial evidence  did you have something more introduction no matter how can there not be substantial evidence if of least a number of the valuations in the record supported what the boyd said which is not completely disabled the problem arises when the public safety officer the benefits of experts don't agree  the first expert that they use the first medical expert for early on in the process and that doctor vindicated the claim its condition would not approve it would only deteriorate depression as part of his injury yes or they did and as we all know stress and depression and any type of psychological component is not the basis for the awarding that's based in part on a depression or these type of mental capabilities that doesn't that reduce a privilege in the opinion that a whole doesn't that go contrary to the regulations i don't believe the does if you can buy for kate if you will the the psychological component from this is a core component and only rely see i can see that point but that's not all the head he had is worth repeating surgeon saying these are the conditions these the physical conditions that he has  physical and permanent it is found in the supplemental appendix page thirty three thirty four right i mean this is the copy we have right so you might want to tell me what it says is ok what it says is the doctor is asked what physical conditions are we dealing with and the doctor he kates we're dealing with right knee surgery chronic pain degenerative joint to seize left shoulder libral tear period no depression the psychological conditions whatsoever for the very last question yes this is the one you're starting on  gainful point number two is your visit your medical pinion that of medical conditions identified above are traumatic physical conditions of the body ok but that doesn't the staff caused by  medical program with physical injuries identified above yes is europe is it your medical opinion as a direct approximate result of the injuries identified above that is permanently and totally disabled from all forms of for chronic pain d j t degenerative joint disease left shoulder labeled tear go through all of the line of duty injuries can i just clarify what dr i thought we were talking about dr don who's the orthopedic predominantly what you have and non fatal line of duty injuries is are some psychological component involved and it is difficult to get the doctors to separate that which can be the first of the basis for combat civility from that which is not these people do not suffer these line of duty injuries like most people do in it workers compensation a gang fight between two rival gangs in a prison probably knowing full well he's about to have both anger turned on him and pummel him and that's exactly what happened here is that anybody should make it you make a good point but but it seems to be a point that the criteria ought to be on the way i think it should be absolutely your honor but do i have the right to ask you to do that no one too right and so what we end up then with i submit to you is did the director have substantial evidence i submit to you she did not why not i mean they're all caracol opinion saying that he's capable of gainful employment to what degree the reports and he is capable of employment after we have the hearing and after dr elkins says he can do no more than seven terry work we are taking the vocational report th disabled if as you pointed out he also said i'm taking the consideration his education his work experience he held he held corrections officer make him able to have meaningful employment i don't believe you do your are he is saying that if you have a situation where you you have come to the point where this is all this man can do using the p s o be doctors he can't do anything even with leslie knows how to do what do you what would he have to say that's totally inconsistent with what the p s obese it's another doctor said but it's evidence as well correct if it's some evidence is a credible evidence well the question is it substantial or i don't believe it is incredible of the problem it is where we're viewing a decision of the fact finder if there is substantial evidence to support what the person found we have to sustain it and here i just raise pointing out to you that there is evidence from i've been ally and others that supports the decision of the director here and so are we not our job to weigh the evidence or to decide that the evidence should be discarded that supports the director's decision and if that's the course decision it is and sergeant van arsdale is going to go down fighting just like he did that prison well that's a that's i think congress considered this when when they changed the regulation he had the regulation not changed and taken away the notion that if there's if the question is imbalanced that we find in favor of your client then i think you'd have a we'd have a better argument but that's that's no longer in the equation here i mean congress decided that i could agree with you more when you're from the government which also it's a very good copy and that's from the same doctor dr james placing an irish history of present illness it actually says he suffers from post traumatic stress syndrome they're killed in action that's one thing but if they're not killed in action and they're injured as a result of a gang fight in a prison now they're injured there's got to be a stress factor in there somewhere there's how do you how do we discount that or our house how is that one of these individuals ever going to be able to obtain assistance post  if if if there's any showing want to wherever of post traumatic stress or any type of shock the psychological adverse results that come from that from the incident  how do we deal with this i mean i could just seems to me that if you're going to you'll be able to get up here almost in every case and and when and that strikes me as odd that that's not what the act was it designed to  do you write your honor and it is something to where it has to be based on the physical evidence component of it and mr worthless argument was that perhaps you could buy for kate some of these medical opinions except here in this record him from working from any type of employment i believe that the doctors are for he was referring to his doctor don and that was back in two thousand and five and so there is a matter of recency here to where for instance the purest doctors dr well but you also have with dr elkins and dr paul you know it's fairly looking at the orthopedic standpoint where they determined that he was not totally disabled and that he was capable of sedentary and light employment and so you do have two instances where  evidence log for the different evidence that the director considered where does the ruling now depression p t s d come promise that the statute of the regulation and that comes from the regulation and defines catastrophic catastrophic injury as that meaning an injury at the direct approximate consequences of which permanently prevent an individual from performing any gainful work and within the actual definitions within that subchapter  it it seemed to me that there could be you could look at this two way then what congress is saying is that you can look at p p p is free as the sole cause of the of the disability but i wasn't too sure that it said that anytime you find a stress related disorder you know it is part of this overall physical disability or in connection with a part that does not qualify but somehow it appears to be an interpreted to mean that if you have any time you know i'm in new show or stress and it just seems to me that if your farm man or a policem or responded to a terse attack you're going to come out of there with with a bit of stress and somebody is going to say you have some stress and i can relate that to your inability to get to work  i'm not too sure that's a that's a question but do you want to let me phrase it as a question there's a regulation create a a per se rule that if there's any type of stress related and in these cases there's any type of stress factor related then that the officer is not eligible for benefits under the act i don't quite know how to answer your question your honor i do know that for instance it there with the regulations when they were amended it you know now includes like heart attacks and things that could also possibly come from the stress or context that does the regulation cover a situation where the risk physical injury and the p t s the secondary to the physical injury other words that it results from the physical injury and here i  regulations are consistent with saying it has to be a catastrophic catastrophic injury that is directly approximately copy you know the injury whatever it is was directly possibly caused by whatever the you know this case the correctional officer officer suffered and here he was the catastrophic injury once the two or three juvenile inmates roughing him up in the hallway and hurting his left shoulder and right knee and we don't have evidence in this record at least that the catastrophic from that encounter on i believe it was december tenth two thousand and four that it with the injury was that he didn't go to the hospital for stress or strain he went to the hospital because he hurt his left shoulder and right knee and at least on the evidence before this court there are three doctors as i mentioned and one functional capacities of that report from as i've been on that support the director determination of the finding that he was not totally disabled and again it's not disputed that he's permanently disabled from these injuries but the question  at the end footnotes six seven and eight she cited to the regulations where the definitions are but so those sites are actually two twenty eight c f r thirty two point three and when disease and the second is any condition of the body because for occasions by stress or strain and then further and the definitional section stress or strain is defined as stress or strain includes situation where the entire disability is alleged to be based on a stretcher straight tend to be talking about a physical condition that's caused by stress or strain rather than stress or strain which is the result of physical condition and i think i would agree a theory you do agree yes well but so that's a problem here isn't it because his physical condition led to the p s p t s d and the depression include so any occupational disease i imagine that might be something like carpal tunnel syndrome all of those go hypothetical trouble he loses a leg someone loses a leg as a result of an injury and by stress or stream be a consideration that the board would consider and whether he would permit thing totally disabled i do these regulations the director had to apply them as written and again to weigh the evidence did look at the various doctor's re benefits of the law no it's not because he had no contemporaneous physical injury it's a crying shame but that's what it is but what we come back to a situation the physical therapist says that slowly as the physical conditions he is permanently totally disabled i submit to you it's a matter of quantity versus quality substantial evidence needs to be quality evidence and here the quality evidence comes from the attending orthopedic surgeon who says purely for the physical conditions he is permanently totally disabled me that public safety officers who suffer a catastrophic injury don't have stuff i would be amazed that they didn't pay off some sort of psychological impact upon their life