it has a preexisting condition limitation which does not apply in this case courting to their thirty six witnesses i don't think the policy is ambiguous i don't think that's what  twenty two the record in no way then we could be considered to have one more than one disability in same time the fact that a disability is caught by more than one injury or sickness or from disability results from sickness and they got a graduated scale from age sixty one to say to sixty five but it cut off at sixty five if the disability results from sakes now when i read judge barbour's opinion for the first time it seemed to make a pretty convincing statement that he just had a lot of things wrong with both knees traceable to arthritis so that he had there's if you if we had had a in an anatomical map of his knee judge barber seemed to be convinced that the problem that caused well and if you feel better sitting down reserving some few minutes for rebuttal i mean you're free to make whatever point you want to me but played pretty much what i mean all right well and i also so we're getting in touch with the nurse who's on duty in the district court over there so if you don't feel good you'll be able to get some help here i don't wan to arthritis in his knees which is considered a sickness or disease under the policy or from that sickness or disease and injury as you've heard mr cox contends that it is from but an injury a sickness he has the burden of perth which means obviously he has to come forward with evidence sufficient to establish that it is probable that it is more likely than not that the injury combined with the sickness to proxima like calls his restrictions and limitations so what is the injury that he continues is combining to cause this disability as you heard at the very very base of his case he continues that during this incident only december twenty sixth two thousand and ten when he failed or stumbled over some an even pavement he claims that he tore his that is whether it was as a result of the accident or whether it was simply degeneration license that from the jury then becomes the plaintiff has the burden your honor of coming forth with some proof to show that it's probable to show that it's more likely than not all that there is is jones is dr shelton said it's possible that's it i don't know why that isn't a jury question for the jury and i mean ultimately you may win because the proponents of the evidence may be in your direction but i just don't understand why it isn't a jury and a jury question thank him wasn't all medical experts and render a decision because none of the medical experts say that it's probable or likely than not and that the law coming out of this court as well as the coming out of the mississippi supreme court is that when it comes to compensation the plaintiff has the burden of proving tolls ation by th restrictions are limitations resulting from the take all i i dozed didn't read i didn't read this argument exactly in what judge barbara found well because i mean i read judge barbara pretty carefully and course i don't think i am and i'm certainly not an expert in the knee but it says he's saying that mainly the insurance companies relying on the idea that the fall did not cause the progression of osteoarthritis and any injury sustained quote had nothing to do with the progression of the  close quote in other words not that there was not a tear or but it was not cause that you're saying there's no injury you're saying it's question whether and i don't read that in the in the way judge barber analyzed the case that's own page nineteen of his opinion your honor he refers to some a plaintiffs argument  and he says cox argues that there's a fact as to whether the disability a result from the fall in then he goes on to explain in other parts of his deposition however shelton testified that while it would be consistent to a reasonable degree medical probability that can't sustain the tear there was no way to conclusively determine whether the initial tear was caused by the fall or whether it was degenerative in nature and not at all associated with the event he said just a moment ago can lead to a progression of osteoarthritis in the nate so we need to look at this from two uncles and i will get into just a little bit you know on the anatomy of the maid and those two angles of the while it's reasonable to believe that that could have gotten worse subsequently as a result of the taher and the minute secondly as the evidence is that it didn't in october twenty he was cleaning out the arthritis in the patella from one joint while he was in there he noted that there was great for bone bone arthritis on the underside of the kneecap he said there was some arthritis on the  he was still complaining of his name at that point dr shelton said i believe that all of his problems with his name is patella femoral arthritis great for authorize he did surgery later that month in december  two thousand and eleven that's a year after the fall when he was in there and he was doing a parson the replacement he shaved off the back of the kneecap and put an alloy prosthesis  groove when he was in there took photographs of the inside of the nation he went over those photographs with us in his deposition he pointed out own the kneecap to grade four patella femoral arthritis which he he said that's his white bearing articular cartilage which is pretty normal that's it page seven thirty four the record page twenty one of his deposition in is operative note found in his record he resulted in any restrictions or limitations instead all of the doctors are in agreement that the restrictions and limitations are deemed to mr cox's patella femoral arthritis in his knees the osteoarthritis you think judge barbara felt so comfortable in reviewing all this evidence and coming to this conclusion that there is no material fact because the doctors own agreement in agreement that this is a medical issue and the doctors contributed to the cause of his disability you know how do you get around something like what that it's proud of that the question and i think it's important to other all of cox's knee problems started with an injury when he fell in a hope and there's a couple of things there that the last one of interest first when he said when he wrote in his records all of his knee problems began consistent with the story that he tells that he's nice well that right something happened absolutely you are and women and i thank you for that because i don't we're not contending that something that nothing happened at that point he did have an injury and even saying it didn't cause the medial menace caused problems like no i'm saying we don't know if it did  or not right but at that point it didn't matter this policy pays benefits type sixty five if it's sickness or accident but only beyond if it's de to an accident or the accident what is his disability detail and that the proof is from all of the doctors it's not related to the any injury that he may have sustained in the fall the question so the question had a faulty premise to begin with second laid the question was relating the time it doesn't specify and the question that time but it talks about the initial m r i the initial second which was early on if that's the question of whether that fall contributed to his initial disability certainly there's no issue about that but the question is his own going fi years later what his is is is restrictions are his restrictions and limitations what did they do to him dr shelton gave very specific testimony about that which is totally in line with the other doctor he would have had this degenerative arthritis more what did you i mean he said this had something to do with the circulation of some novio fluids wouldn't you doctors say about that thank you to dr southworth it explained that their argument really defines the medical proof and logic as doctor sent work explained if that happened and it can't happen in twelve percent of the patients but it didn't here and we know that because if that happens what you would expect to find compartment but we don't hear it's only in the patella family compartment he's got very mild arthritis in the median lateral but he had that when he fell you know i read this correctly to say that the doctors that ten toss patella femoral arthritis moreover he said and other doctors have said it's almost a certainty if you have that in one the you're going to have it in the other that's what happened here mr cox head the injury now if you take that testimony we think that enough to create a genuine issue material fact defective judge doctor  language to those facts and the testimony of the doctors when you get to the end result that he's entitle been fits page to age sixty five because the injuries