his doctor had said that if might be company related that will do some conserve the treatment and eventually might need sort of surgery the issue here is that activity was seeking medical care for but job related injury the second element that the opponent must show we employ is that the railroad knew that he was engaging in protective activity now that is the big issue in this case all along the railroad has said you're  bilateral carpal tunnel syndrome is not related to any of the work it's it's just not you didn't get it here you didn't get it from us and they maintain that throughout his case within the three years if he knew or should have known that his injury was related to his work in the f r s  he has to show that the railroad knew that his medical care medical treatment was due to an injury that he received at the workplace now how does he show that the railroad knew that this was a job related injury when the railroad all along the nice that it's related to the job now  factor cotes said that a reasonable degree of medical and surgical certainly be bilateral carpal tunnel syndrome is related to his activities at the workplace salt then in october of two thousand and thirteen dr cults evil of britain prescription for a specific surgery for the bilateral carpal tunnel syndrome k and at that point in time that is when because of what dr testified in his deposition we have proof or we can show the railroad knew that mr sweat was engaged in protected activity that is he was seeking treatment for a job related injury and dr cults where dr said it's related to his job activities then the relevant and then after that the railroad still continued to maintain proof we have to show that the railroad knew that he was engaged in protected activity and we they didn't know anything engage in protected activity until they knew that his work related injury needed surgery and that's when they came forward a covert twenty second two thousand and thirteen seeking medical care for the job versus the provision of the f r a say that applies to intimidating or retaliate against employees when a railroad is charged with intimidating or retaliating against an employee that's where you have to prove that the employee had engaged in protected activity when dealing with the provision that's at issue in this case annihilator interference with medical care there is no responsibility or notice requirement that the employee is an aging in protected activity indeed that provision applies to medical care that relates to on duty or off duty injury so the argument about notice to the railroad for farting the work related innocent the condition does not apply to the provision at issue in this case additionally while it was raised on opening argument there is no question before the court today about whether or not the determination not to pay for surgery was a violation of the f r i say the only issue before the court today is whether or not plaintiff claim is timely and based on the record facts that plaintiff admitted to at the district court level well there is no question that his claim was untimely mr sweate admitted during his deposition in two thousand and twelve january of two thousand and twelve dr coats recommended surgery for his bilateral carpal tunnel syndrome he also admitted that in two thousand and twelve the request was made to union pacific to pay for that surgery and at that time that request was declined he also testified that was seeking damages in his f r s a lawsuit from two thousand and twelve onwards related to lost wages and other non economic damages that related to the failure of having his carpal tunnel syndrome at that time he he made that request and that request was denied that position has never changed and therefore in two thousand and twelve he was on notice of the alleged violation and it was incumbent on him within one hundred eighty days in that first denial isn't one i mean two zero zero one zero nine c to apply only when an employee sustains an injury during the course of employment so how can the statute of limitations one hundred eighty days start until the defendant knows that is violating the m r s a and knows at this is a job related injury they maintain all the time that it wasn't and as i mentioned before repetitive trauma cases are hard to prove when they occurred how they occurred and we think that it doesn't make it a there is when there is a certain event and i certainly would disagree with counsel in saying that the defendant and defendant knowing that the plaintiff