submit that the administrative law judge erred as a matter of law because he applied a cumulative trauma standard mean in terms of the last response full of fire rule i realize that may seem unfair but that's the law i mean yes so the question is did he aggravate an existing injury if he did what what can you point t in the law that says that notwithstanding the apparent unfairness of it that your client somehow doesn't bear responsibility accumulated from cuba to trauma case is a repeated trauma that goes on for a period of time without any specific what the p d can short now the law judge found that this court's decision in two thousand and three in the metropolitan  stevedores versus price decision was on all fours and that was what he used to decide this case but if you look at the metropolitan stevedores case we doubt that case dealt with a man that was a forklift driver and a mechanic for thirty six years he had no accident with any employer and september of one nine hundred ninety three his surgeon orthopedic surgeon said your knees are worn out from your wark and we're going to have to do knee replacement of both knees he continued to work doing his regular war for another year in seven months were forming work as a forklift driver he was never poor for more by any doctor intil nineteen months later after he was towed he needed the knee replacement nineteen months later after he continued to work he found he went to the doctor and said i can't work anymore and that's when they did the new replacement that case is a troop well that the definition of an injury under section two of the longshore act is the injury in any natural and unavoidable consequence of an injury and a flare up and in pain we would submit to your honor is car otherwise live his life without causing an aggravation to his injured knee and that is the natural and unavoidable consequence of a serious injury to the knee that the claimant had with  and he has he he claims that he stepped in a particular way did something that aggravated it are you saying that the fact that you might have done the same thing or experienced the same pain not working somehow changes the liability in this can i do say that your arm because we don't believe that's the definition that congress intended in the section two for an injury the definition of an of an injury under section two is not only the injury was not would not have been disabled but for his accident with u c he made the claim it would not have needed surgery but for his accident with use and he admitted that the claima injuries with usin would have never heal without the surgery and he admitted that the climate was one hundred percent impaired as a result of his accident with houston and yana we would submit when you deal with a traumatic accident as opposed to an occupational hazard over a period of forty years is a clear distinction between the application of acumen to trauma standard and application of a single traumatic injury standard and we would believe that to u we also would like to point out that both doctors made it clear that the climate was totally disabled on january twelfth of two thousand on january as of the moment of injury on january twelfth of two thousand and nine when he fell from the rail car with use and they both said he was totally disabled until he had that surgery so he had that was a natural unavoidable consequence of what happened to him when he fell from that rail car that those were the tears that were causing the pain flare ups doctor system set then he thinks short of best of bed rest what are aggravated that bottle thank you good morning honors larry postal for used in terminals obviously by your questions you understand the facts counsel is trying to make a difference between accumulate trauma and sometimes called aggravation sometimes called two injury cases progression is no matter what this would have happened i think it's wrong to mention everything in some sense is every time you have a new injury it's sort of in that you can argue it's a natural progression because you did something that happened natural progression is that it's unavoidable what happened you work did not cause it it's the injury would have happened no matter what dr seuss no said sure if if you do what he said is if you do anything as he did if he put weight on it he would injure it if a doctor had in fact advise him initially the put the bed rest as it certain i have that in fact it will not progress in fact the judge addressed natural progression on page thirty nine o the record and he said this is not a case of natural progression so one no doctor in this record has said it was a natural progression and the judge specifically addressed that issue page thirty nine of the record and said it is not a natural progression and i think that fully supported by the testimony because he said if you work you're going to injure it in say no matter what this was going to happen in this case because the a l j explain the reason for the ruling and believing one for the shin versus another we have to defer to the l d s fact finding is that correct correct i frank that i'm not sure why we're here because the judge did everything he supposed to do as you've said in explained in great detail he said look dr said i understand dr del naja treating doctor but i said look first of all i just said there wasn't a permanent aggravation  he didn't buy the objective evidence he didn't consider the subject about it he then said look this isn't rocket science i mean even for non dr who said look you have a torn ligament so the knee is unstable it's going to move back and forth you have the shock absorber the which is judge relied on we were in the exact opposite his employer was first my employer was second and i got stuck with it for exactly the same testimony that based on subjective complaints of a u t r driver dr in at the first page of the metropolitan stevedores vs price decision it says if the workers ultimate disability is a result of the natural progression of the initial injury and would have occurred notwithstanding a subsequent injury the employer the worker on the date of the initial injury is a responsible importer and this is what the record says by both doctors they both agree a surgery the doctor delman recommended they both agreed that the surgery would not have been necessary but for the use an accident they both agreed that the tears of the a c l in the