written late reporting a protected injuries even in circumstances when the employee cannot comply with a groundswell because the i'm sorry has not discovered the nature or extent of the injury until after the seventy two hour reporting day can i keep my job in a just ask you to respond to the other side's framing of the case because they are of course a that actually the issue is not we're not being asked to decide whether this particular workplace rule is reasonable or wall full already of that that we're not sitting here as some kind of shows you see the review board that gets to opine on whether we think this is a good rule for the board to have or not rather  what he was disciplined for was the late filing of the report as opposed to filing a report of self so could you maybe respond to their framing of the issue before us in that was there well sure i mean reasons for perhaps having time and manner rules for reporting workplace protection workplace injuries but in order for those time and manner rolls to comply with the federal government safety act there was rules have to be both reasonable and they cannot undo the burden on employees right and ability to report workplace safety rules so the agency last look at whether the rule is no exceptions made we're just going to discipline everybody if you follow your board a minute after seventy two hours we don't care what the circumstances were always going to you know does seem to me to be quite unreasonable and also be immoral but we're not really that's i guess i  started where i did we're not really here to decide that question we're here to decide whether your client was retaliated against and all of the evidence that i see in the record suggests that the answer is no there there wasn't any attempt to punish  for the mere filing of the report it really was because it was late and you know he filed all those early reports on time you never got discipline there is a consistent pattern of you know even in circumstances kind of close to this  where a person is just a couple of days late they still discipline the person right so there was kind of consistent evidence across in terms of how the employer what about enforcing this rule i think completely a reasonably perhaps but nonetheless consistently so doesn't that undermine your client's position that no i was really to be retaliated against for an agent of the protected activity of snow if an employee cannot comply with the rule because and in this case petitioner didn't have a literally cannot comply with the rule and will always be just the plans because they cannot comply with the rule then the rule and duly burdens reporting because that class of employees who just got her that they have an injury outside the seventy two hour window are just courage from reporting and the federal government safety act its purposes is to protect those employees from discrimination in retaliation for reporting or injury and that's exactly what happened here because those employees are guaranteed discipline if they report outside that seventy two hour window and although i'm in the lawyers here have had a good faith belief that they were merely enforcing a rule this poor helmand province that a good faith belief of enforcing a rule isn't enough because even if the and arguably your client falls in that even though we knew he did something on a certain day he hit is me on the desk or whatever throw in the construct of this case are we required to find that that war is on the lawful in terms of putting forward a defense in order to have a ruling in favor of your client circumstances our position is that it's a model as applied to a class of employee that's going to discover their injuries outside the seventy two hour because you know that that's a lot of words so i just want to get to the reality because the the st step is did they prove their primitive defense and i take it your argument has that because of this rule as a lie to your client they establish that defense but then that would require us to say that there's something wrong with the rule when the yes and no i mean there's other factors for instance i importing had an absence of retaliatory motive when that same decision a decision maker discriminated against or stands and petitioner here for filing a protected workplace injury employees that for late reporting that late reporting was in combination with protected activity it wasn't in any absolute checked and activity and the statute requires fiennes to prove it why it is you argue that the comparison evidence that the is and have gave is irrelevant and that's the wrong comparison can you explain your argument again i know you put it the protect activity and what b s that did here was only show that every time it took that action it did so in combination with the protected activity what it also did was and so under frost and under the sports case on you can tape an adverse action and that might be you know for another reason that's not  taken the just the playing area action here for late reporting absent a protected activity the railroad simply couldn't establish that and in brough they recognize as much by saying that the way prove its affirmative actions by busy by showing that every time it takes the other's action it does so in combination with a protected activity and that's not a way to prove that  well i think you have to remember here that that wasn't the only other the railroad here also all treated more harshly employees that said i'll time the reports including petitioner himself because he had the longer review period for filing his timely two thousand and nine injured a ons and a rb found that it had  mentor a policy of treating injured employees in ages from ensure a fashion by disciplining them more harshly even for those timely reports so even that evidence alone doesn't show that b s that doesn't just supplant employees for even when they filed timely injuries so that that timeliness isn't the distinguishing factor here you know as of absolutely was disappointing the deferential standard of review applicable in this or that decision should be upheld and can i ask you to just cut to the chase for me at least which is that this rule seems unreasonable  you're going to apply it to people who let's say that they didn't learn until after seventy two hours that they had suffered any injury at all so there just wasn't i think for them to report and yet when they do come forward once they learn that you c employer's foresman of this rule can be is consistent with the act and and so i'm convinced of that claim but then i don't know what what to do with that in terms of resolving this case of can you help me sort through those issues that you're honest so it's really is no explanation for the rule that you can put forward clearly it's not going to i mean i read that with the reasons you put forward in your brief but none of almost the concern of congress and passing the statue in the st place that grows her consistently discouraged and discriminated against people reporting injuries so when you're looking for reasons behind the rule you turn to the fact that this thing being inherently retaliatory because we can't find what other reason is there for this true that this is the justification for their role that they all hate considered are you know what has kind of just dragged in the ocean guidance you know that the railroad has a significant interest in making sure that their workplace than it would have otherwise been and in this case i think what you really need to look at is was a rule being needed as a pretext to actually discriminate on his protected injury r that i thought they were having is that we can hear all of that but it makes no sense and i'll tell you why how is it possible that you can have a rule that you cannot comply with and in this case if you're not required to report these changes and so of the symptoms of back to your work and if that's seventy two hours after the essentially just from an eighteen against the actual presented injury report and i think that the l j here properly consider this question as it pertains to mr parsons then which is that you know he had comply with a role many times before he did have pain following his great bend that became wars and wars over these three days so it's not as though it was an ill many years the question did he work during that time when did  application of the role in the way it was by here which is that if there's any symptom of a you know following any kind of incident and they they had divided they believe they need them to be discreet incident and he had would get so rather discriminatory and retaliatory conduct because you report every every day you bump into something something happened so that would be a realistic but why why do you actually encourage him and with that it be that my time  report symptoms unless the effect of his work had to do with the fact that he had been released for work from a prior injury it did not have to do with enforcement of the injury rule at the outset right so the rule at be  f is that if you are injured at work you have to report that promptly regardless of whether it affects your ability to work that's the rule that was being enforced here there is no mention from the ala jay of the other circumstance and that's because mr thurston said on his employee doesn't know here what you have is an employee who goes to the doctor and says to the doctor hey i hit my knee at work and i think it made things worse that's what he told the doctor that's what the l j statue of finding is and at that point remember that this is not some complicated process all he had to do was pick up the phone and call his manager and say hey i had my knee the other day wait a minute he had two visits to the  doctor all i did was give him pain medication they did not tell him it was a serious injury and that should be not going back to work it wasn't done till the nd visit to the doctor and that if he filed his notice i think it was the same day when the very next day which was well within seventy two hours of the time even became aware that it was a serious injury and let me mention something else from the facts of this case is a man from the record he actually mentioned it to a couple who were other people and strain manager or something and they told him that they would consider it just a continuation of his former injury so that's that's right those notifications were all made on november nd but it's not again the rule does not reach into report only when it's a serious injury or only when it's going to affect his work that it was at that stage appropriate for him to report be able to also found that he knew quite well if he was confused exactly what to do make of the phone call to his union to to let trainmaster to anyone to say headway do i need to report this that would not have been a not a reasonable thing for him to do it would not have been a difficult thing for him to do and it's also not an unreasonable thing for us to require it doesn't make sense to require timely reporting in a situation like the railroad where there are house or just conditions the managers often don't see because they're not out you know we have we might a manager one hundred miles away from his or her employee right and so that there's a reason for that rule there is and then and it's been acknowledged again by the l j b l j looked at all of this the l g listened to all the claims by mr thorson's and that he didn't know what to do and the elegy rejected tho and to your question of the outside judge wofford the way the statute is set up it is to resolve individual claims of retaliation or discrimination it is not to bring a broad based claim against a policy it's not to determine that a policy is somehow unlawful is to determine whether or on the facts of this case this individual was retaliated against and the administrate of law judge went through a detailed analysis that included odds of facts and against your point judge what for if this rule were so on reasonable and so unfair you would expect to see that most people who are injured get the discipline for violating it you don't see that you see the opposite what you see is that most people who violate who report injuries do so  and reported an injury he was not disciplined for that no question about that about that and what he did is almost exactly what happened here to a point he injured himself he didn't realize he was injured right away two is put there and then carried over so that within the twelve month period there was a nd violation and that's why he was terminated so isn't that st violation that's put he was out for some period of time he then came back from that injury had injury number eight which is the one for which there was a level asked in a record suspension we call it which means as a special no time off and he received that's that record suspension for reporting late but if he had done exactly what he did in two thousand and nine which is go to the doctor on the th tell the doctor i banged my knee have a doctor provide treatment and remember we are also obligated under federal regulations to report within seven days when we have an employee who has no work related injury for which he receives medical treatment that's another reason for the problem from reading the book the purpose of this is not to go after employees for reporting injuries because again your factual record will look very different if that were the case and the rule would probably be significantly more on reasonable right thinking i can i just jump in i know we're over there might be a finding by the fact finder a pretext for example i am which would be discrimination right your if your you got this rule you knew he couldn't comply with it and you nonetheless and forced it against him there might be there might be evidence submitted by the railroad that they thought he could comply for some reason and the facts finally might have to reject that right and if but with your in your view the critical thing here is that he went to the doctor within two days a is is that decision so bad that it is not supported by substantial evidence and i think the answer to that is clearly no there isn't there is an abundance of evidence here and again all of these arguments were made to the ets of the administrative wright and the ministry if one just rejected them the ministry of logic is that the rules not unreasonable he didn't know what to do he didn't talk to his doctor and can you explain why you think it's pronounced breuer brow it came out so differently all the way including the administrative law judge and the board all of it went just the other way in yeah and look not being not being judged i can't necessarily  into her head she came out completely differently in the mire case same rule right she herself came out differently i think the error it may very well be that she did not accept the companies they spun ations in the way that the fact finder did here again these are the folks who sit and listen to the witnesses they determine credibility they just i do i believe this person or not do i believe this employee when he says he didn't know he clearly didn't believe mr thorson's and when he said he didn't know thought he didn't know he thought there was enough information provided by mr dorsey isn't particularly given his seven prior injuries that he was the miller with the process he's clearly questioning he says he was updating people on their symptoms yet point and the question we ask now is is it so bad is the decision so bad that there's not substantial evidence to support it and again i think we have your argument in mind thank you i appreciate it the policy requires reports of injuries not reports of changing symptoms and that the forces that had no obligation to report doctors appointments for changes in symptoms from ms prior injury unless they affected his ability to so what's your response then to this to the argument on the other side that will that's not this case because it wasn't impossible he didn't have enough knowledge within the seventy two hour period to make the report and he simply didn't and that's the only reason he got his but those are bunches me many times before and i had never manifested into your report of the injury so you know she and he had not reported that and you so much he thought he'd already reported and you know these changes in symptoms by reporting h medical nursing staff they tell him they're going to treat it as the same injury which he's already reported and then when he goes to his supervisor his supervisor doesn't even know whether it's something that he has to report and yet he's heavily punished for not not reporting something that his doctor doesn't tell him it's not an injury that the n s a data isn't going to treat isn't even injury that his own supervisor doesn't know whether it's