my name is press and usually represent the petitioner michael caliber east this is a long shore act aggravation doctor in case it's hornbook longshore logging any work situation that aggravates accelerates or combines not just in this case tell and face pain is an injury and i'm not going to go through a litany of that there have been various you know court made pieces of court made a law that came up through the long that people were resistant to and they didn't accept them and right now this pain as an injury it's got a lot of headwinds you know the adjusters don't go for it employers don't go for it don't go for it and the benefits reviewed or doesn't go so i don't think you can make a really helps your argument i think it does because it had to define what was an injury to get to a last response from a lawyer you had to figure out was there an injury or wasn't there an injury dispute that and we had medical testimony from dr lao that no matter what mr calibers was doing if you've been getting up out of bed sitting moving and you need some point the femoral head was going to break collapse and he was going to pain it just was happenstance that he may have been at work when it occurred because he continued working for a few months and then six months later before he had the hip replacement your employment need not be the well but you have a circumstance so what if you or your employee broke his leg or reason incl didn't realize it was at work the next day and started feeling pain that's now a work related injury und bath ironworks versus preston and bath ironworks versus fields which are on point fact even one of them they actually use the defense doctors testimony to establish  it went up and came back down you know several appeals in it and the doctor called them that was the defense doctor testified stress can worsen the involuntary movements associated with my own clone us but a temporary aggravation that any improvement of that temporary condition depends on the exact situation it was levels of concentration medication fatigue motivation and so there you had medical testimony on causation different than what was happening here where the medical testimony that they weighed in accepted which i think they all jason title to do was that there was nothing about being at work that caused this or made this worse just happenstance that he was at work when his feeling pain he was going to feel pain anywhere that he was it kind of goes to this question of inevitability where there can be preexisting conditions where as you know from practicing in this area there the work there's a causal relation between what happens at your last job or when intervening jobs bought if the in this case pain would be inevitable whether he was at a job or somewhere else it's hard to actually pin the causation on the job so that appreciate you said well you know response to judge maybe you don't know about that hypothetical but one of the things we have to figure out is where is the and point because if pain is inevitable and in your view that means there would always be causation a or standard and i don't think that would be an acceptable rules so i'd appreciate your comment on that but in the q i had a case of the th circuit defined repeated flare ups of pain as an injury testimony as to whether this pain that occurred while he was at work was somehow an aggravation which is what we need to get out as to how we define that testified that he never had pain in the in that hip before that one day at work that he was that he was going up and down the stairs and he's given testimony klein hundreds and hundreds of steps in and out of the dr so what we would assume occurred is what the doctors described where the the bone on the femoral head thins to the point it eventually collapses and perhaps his testimony supports that the collapse happened while he was climbing the stairs but does that mean that's the aggravation when it could happen did any time it was going to happen at some time in some place and there was nothing about what he was doing at work that caused it because he lived in a boat and he climbed up and down steps all the time on his boat he flipped on his boat from over a year before this happened but i think that's what it was about had one or two steps that's a lot different than climbing hundreds and hundreds of steps every day so are you now arguing that climbing steps is what causes the ultimate manifestation of the vascular necrosis that causes the general had to collapse and his hearing medical testimony i do not try to make this clear from the beginning we're not claiming causation and we're not claiming any change of pathology as a result of his work i think we have your argument in mind that you expired your time the i j a and the p r b both sound in your client or your client's favor on that issue that and weighing the medical evidence that the the employee did not come forward with sufficient medical evidence to show preservation so i don't believe that the employee is disputing that it wasn't in their briefs if they are disputing that now and i think that argument is likely waived but what's really at issue before step two is what aggravation means so the employees counsel argued that essentially pain should always be considered aggravation apiece experience pain at work that means that his underlying disease process was aggravated by my work and i think that's where you should focus your arguments seems to be the only issue before us very try to focus on the the second step how and the p r b also founded dr allows opinion was that there was no activation repeated time after time no causation no acceleration and no abbreviation he offered the reasons why of all the technical parts of the medical that i read and then talks about the doctor loud testimony and then comes back the same but nonetheless doctor allow testimony its entirety establishes this non work related injury l jase basis for the opinion was rejected by the board but board then says so we now look at it and we view aggravation differently so my question is does that mean that as the court of appeals we are precluded from going back to the a l j is finding on aggravation i think that would be sensitive issues be a way to repeal one could argue that but i'm assuming that even asking as a legal matter not a question of waiver it's a legal issue the issue to is not a question of fact but it is whether the employer presented evidence sufficient to establish that the claimants injury was not work related as a matter of law that's case step two is decided is a matter of law and the b r d has a different view of step two than this in the i j a where they alternate what does that mean for this court so the facts are clearly supported b a systems the law allows the judge requires the board of this court to give deference to those families are supported by substantial evidence structure evidence of the worst claims owners have for the employer care because you always lose this is one of those rare occasions where a physician who's even not submitted his report was not submitted to this court with the physician well your brief seems to rely on that the reasoning of the a n c rather than the board which i think raises judgment humans question as to what should we consider i'm not sure i understand your answer but please go on well i think even well thank you thank you employment combined with his disease so as in to induce attack of symptoms severe enough to incapacitate him or whether they actually alter the underlying disease process is not significant in either event his disability would result from the aggravation  condition next case marionette marine corp th circuit the longshore act does not require that a later injury fundamentally alter a prior condition it is enough that it produces or contributes to a worsening symptoms if those three cases are the law i think i have hit the bases on all three of those cases the and we're not talking about a small aggravation but two and a half months of climbing up and down seventy step and it was the same thing in the preston case that i just read on the other three cases they said and the end impressed and they did what i'm doing here is the defense doctors own testimony showing these temporary aggravations but see what happens is they're not really temporary aggravations because if you're always being temporarily aggravated then eventually you have to quit so they're not really temporary anymore and that's a series of temporary