the first hearing in this case was in august of two thousand and five the evidence and what the commission has made their ruling as a finding of him now being totally disabled is a comparison of two thousand and one and two thousand and nine or two thousand and two and two thousand and nine which does not encompass what the statute requires so it becomes a question of law as to whether we're going to go with what the statute says which is what was at the hearing or we're going to go as far back as we want and in this case you know we have the medical evidence that goes all the way back in one nine hundred ninety six before i even left the mine we have him leaving in two thousand we have him getting social security disability benefits in two thousand we have a continual set of facts when was he disabled or totally disabled how do you get more disabled if you are already totally disabled and the evidence in this case basically shows that even their expert man as a whole as of his arbitration hearing now you want to go back and say oh no he wasn't seventy five percent of the musical he was actually permanently in totally disabled and therefore because he's only permanently and totally disabled how you can be worse if your numbers are better and if your objective medical data shows that your opponent or a function studies have improved your testimony at the hearing is nearly identical you testify at the first hearing i couldn't go on vacation well amazingly this time he can go to alaska everything he testified to there are supposed to be a substantial material change in the condition and in all honesty your honor if you want to say he seventy five percent man is a whole then he still seventy five percent that there was a federal black one case that was filed as well and so in federal black lung you have a different level to find total disability in the one nine hundred eighty percent and dr hauser testify that basically once you got below forty percent of predicted on your  one which was the number being used to determine the severity of his obstructive condition you would be permanently totally disabled and what we've put in here was a table of all of his f t v ones from one nine hundred ninety eight until two thousand and ten and the worst value we have before the first hearing in august of two thousand a pop in two thousand and five is still higher or no worse or no better than what we have now essentially h your position our position is that he is no worse now than in the wire in two thousand and five and here and there the objective evidence shows that he's actually better and his own testimony does not show that he's in worse in fact the only testimony that he his testimony was nearly identical so we have objective data that specifically shows him no worse than he was before what about how he testified he was worse than he was before and couldn't do what he said it was worse than two thousand and one so we get back to the same problem so th hauser says he's currently totally disabled now and so you can't impeach the first seventy five percent in order for your argument to win you have to teach the first decision you have to establish seventy five percent pharisee biting of the commission and that is what i am asking this court to look at whether the fact that that dr hauser thought he was permanently totally stable the first time and the second type doesn't show a material or substantial and the worst is permanent total that's right how's you specifically say we need salmon in august to twenty to ninety was a permanent total he could not work if you can impeach the seventy five percent time no i'm not saying he should have been a permanent home the first time what i am basically saying that dr hauser who you're free lying on a he's now commonly disable said he would have been disabled in two thousand and thirteen and i'm asking you to look at that in light of what the statu state changed from the first hearing but you're saying samantha you can't have evidence of change when the evidence is the same evidence you have well exactly and the problem you get into opinion that you know five conditions is the same now as there was no five there's no change so to speak and so if anything hauser's in each in twenty two percent of predicted at the first hearing and that's for seventy five percent man as a whole then how do you get up permanent total which is worse which as you have very clearly pointed out is worse than seventy five percent as a whole you get that's correct you know how you found that it was permanently and to me disabled not that's right in the founding it based on the same facts that were presented to the commission they act when they found seventy five percent right that's right kyra but i can't saying that if his numbers and the severity of his condition warrant it seventy five percent manifold in two thousand and five which this quarter from and the commission awarded if his numbers have not decreased his disability has not increased and his testimony as to whether or not his condition is different has not changed substantially then i don't think the whatever the evidence was leading up to two thousand and five or six resulted in a seventy five percent of war that we know as a matter of law he was seventy five percent disabled on my face the commission then there was new testing i guess i go back this other question if i know he's disabled a seventy five percent of a man and two bob and the commission now looks rationally at these three doctors two of them being or can solve and they say he's totally permit disabled and the commission finds he's totally premeal disabled by the virtue of the two decisions i know he's had a worsening condition now lots of times i don't agree with what the mission decides however they decided and this was in the books without i thought it was seventy five percent at the time of the original board which is saying is accepting that the objective also i don't know that if it if he was distraught as i go back and try to remember i think there is some question whether he could still do light duty by dr westerfield however there's no question and now he says he's totally disabled and westerfield is can solve witness he's can solve doctor i don't see as i look at the testimony i don't see how he's not totally disabled how if i were standing here in two thousand and five i was i don't say i was not to totally has to be attached to some medical testimony gathered and something what is that something i would say it was the new depositions of the doctors the new reports they put him as analyzed by the commission telling us i'm sorry there's some objective medical evidence to support their findings i think there was but most importantly whether i did or not i think that the commission has to make this law they made this ones he was totally disabled we back when even though the commission said seventy five percent we affirmed it in today he's totally disabled he has no and yes in the brief they took out the two thousand one in two thousand to testing said hey he was totally disabled and one of the i mean in fact i think i heard some of the numbers are better i would take a look at those numbers very carefully your honor i can't i can't cite them for you for pronounce my fifth argument today the case is kind of blend together but as i recall these as in the record that's evidence in the record it supports the total disability now well put in the commission in two thousand and five is based on westerfield's testimony at a time when he could be sending terry work say he's not totally disabled but now westerfield is saying doctor is it right is saying he is telling me to say absolutely absolutely no this just on that one doctor's opinion so they can take it can decide they're going to correct me if i'm wrong but it sounds to me like the only thing that we can hang our hats on to affirm the commission's award is dr westerfield's opinion is that where we're at now because if we look at the commission decision they found that his decision at the his opinion is actually problematic way up there they're not what they were at the hearing again we have the problem of the statute requiring what the condition was at the hearing and the objective data is in the record that shows what his values were at the hearing and at the hearing it was twenty two percent in august of two thousand and four which is the closest one we have after that the values go back up again and now we we end up with the most recent values in the one thousand aged petition being  that he was asked to extrapolate the data out from two thousand and one is to determine when he thought that mr smothers would have been totally disabled and he said november of two thousand and three he looked at dr tutors data from two thousand and two and came to the same conclusion that it was november of two thousand and three and when you look at the actual objective data in the record and dr hauser is qualifying statement that the f t the one value needed to be below forty percent of predicted he was  actually totally disabled but they did not put any weight in dr hauser testimony because they said it was speculative but if you actually look at it with the objective data if it actually matched that now and sound an argument that says he was totally disabled before i mean if the evidence that's in the record i mean i i live in a world where the evidence is good the evidence is bad you get it all and that's what it said i mean basically dr hauser in the one thousand a cheering testified that mr smothers was totally disabled in two thousand and require this court to make a finding that mr smothers condition is worse than it was at seventy five percent man as a whole and based on the objective data in this case it is not and based on his own testimony it is not except that he can only walk