history the problem with the commission majority decision is you can take each separate issue if they don't reconcile the twenty three if you're going to hear it here's what i'm talking about the main question that i'm asking this court to review is when was mr eubanks disabled for purposes of his claim because the decision from the majority seems to indicate that he was actually disabled in fable that's fine i can live with that but then we have to go to the second issue on appeal which is notice which says you're supposed to provide notice to the employer as soon as practicable after disablement so if you disable the nine because his claim was filed over three years after he left the mine so being that he filed it in the same month almost five years later all he can get benefits for is see that now if you look at his treating doctors who noted that he had shortness of breath you will see that his treating physicians attributed to his cardiac condition and once again that really doesn't help us trying to figure out when he was disabled and that event that's a fair question for the is not excel or a progress get worse you could consider that the settlement but there are you know obviously in this case he did continue to work and so if you if  seems to be right well the argument is when was it to say i mean if you've got three statutes sitting here in the occupational disease that that regulate everything that happens here and one says you got approve attention the opportunity perhaps in this case for immediate investigation if your position has been it has maintained from day one that he didn't help in that regard c w p what would be the difference then when you that knows commission basically has said we are going to rely on dr alexander and dr perper so i can't very well stand here and if you know that they picked the wrong ones your argument has that doesn't work so the issue becomes ok if we're go rely on dr current dr alexander who made the first diagnosis over five years after he left the mine and the other guy dr perper doesn't examine him until six years almost after he left the mine but then we're going to say oh but we're going to read this ninety four film and the notice doesn't come until two thousand and three they don't when the whole purpose of the statute says you need to prove your statement within two years of your last name exposure case you have to your window here let's be prudent we're going to extend the statute  phrase if the commission finds the failure to give notice as soon as practical after they do the same and substantially prejudiced the rights of the employer the commission then its discretion can bar the statutory definition as you say and have everything stem from the statutory definition of disablement and have all of these time periods are supposed to run from a finding of disablement that you have at and basically what you're telling me your honor with regard to why it and saying that it's not after all and my question simply becomes then what value does that statute even have in the occupational disease that it's very simple it has not been part  years oh you must give notice as soon as practicable if you find out she got the disease but you have to give that it was within five years then you have another bird which we are united ninety nine to last  at you then have to prove that you have to save them within two years now the question of justice hoffman asked is the key here and for the last five or six years all doctors testified to this because i you can't go back to their homeland and again this ties in with justice hotness hoffman's question there are only three waves of new mark on your skin progress the scars that are already there can keep growing whether you're short breath now whether or not the commission thought that the shortness of breath was due to the party accusation or to to me it seems like they have found that they are powers yes but without going any further into that the question remains the same and while i respectfully disagree with your honor that the white case actually had notice filed within the forty five day time limit in the event that i'm wrong then i would agree that prejudice would become an issue if as long as the case was timely filed and notice was given in the time frame necessary i do believe that if section sixty is to have any merit whatsoever that it has to have something other then we got a final in time in five years and there was it has no value and it doesn't do anything for anybody and it goes back to section one half which says you have to prove disablement within two years of your last date of exposure as mistress or stay here and says the chest found that was initially read was not read until july of two thousand and three which was over five years after he left the mine so when you talk about notice and prejudice if you're dealing with a case that's filed five years after something nearly five years after someone leaves the mine just film is read two months three months later good enough for one after all now we don't have one half has absolutely no statutory value any more than sixty does and as long as you file a claim within five years of your last state of exposure and somewhere down the road someone research has found a positive for this you're supposed to be awarded benefits and i don't think that's what our statutes intentions were i think they've set forth time limits for a reason and if you look at the from the chronological action in occupational these claims which change the statute of limitations from original time period of one year to its current status clearly some of these dates have to matter and you can't this do all of this stuff five years after you  and think you've met sad story requirements i mean otherwise you might as well get rid of section one at section one section six see and say here you go the songs you get filed within five years we're going to pay and that's essentially what they have done in this case and we're