most persuasive so knowing that you know basically that is their realm for them to decide that's going to be the basis from where we start with ok assuming that dr ules opinion was you know correctly turning to be the one to rely mine now since we're going to go with dr you all because that's what the commission and the arbitrator pretty much left a sweat it is the position of consolidation for company that those words make any finding within two years after mr hewitt left the mine perfectly impossible it is purely speculative there is no film he doesn't say they definitely have it it wasn't even they have had it it was within a reasonable degree of medical claim he can get benefits for based on the septic the third issue that we had on appeal it was notice that they basically said no specific this is another one where he had it when he left the just what they're saying based on the data filing were three years and three months after would be the first notice which certainly is an issue with as soon as practicable which is statutory language and then you have nineteen fee and the commission majority affirmed the arbitrator finding that section nineteen is an applicable now how you can find it to be inapplicable when you have a pulmonary condition that's caused by two different sources one of which is clearly an interest practice that is the petitioner own wealth won't give you the coal mine might be doing the other part of the coal mines not making him smoke so with that said you know we think that the finding that nineteen the isn't applicable me about it because global products is a guy who entered his back at work he went under surgery the fusion beo he was a smoker they said we're not going to get another surgery because you're a smoker so it's fail again you know his his claim was for a back injury ok he wasn't you know he had this other condition you know that he smoked and it might it might have affected the fusion i don't know that the evidence in that case pacifically steph that he was not a smoker it would have absolutely used he was filing her for an atomic injury but in all honesty it was not harmed by there was no evidence to show that his back was worse from his time in the case that bar we're talking about a claim for benefits for a pulmonary condition they specifically are saying he's got c e o phoebe that's a smoking fish it's a coma you know you got the coldest thing to go on and i'm not trying to belittle that but if you file a claim and you say i have injured my lungs because i worked in this pool mine and i have this disease then section nine hundred eighty eight which addresses and injurious practice which smoking under the evidence in this case clearly is if you're going to testify under oath that within a reasonable degree of medical certainty you can't state that he had the condition when he left the mine how do you get section one f that if that is the only opinion in the record saying that he was disabled in that time he further said yes it is c one hundred and and and one i want your honor basically all that testimony runs from ninety seven to one to what he didn't see in it and then he says it would be pure speculation as the number of passive anywhere on the but with regard to you know this a woman if that's the only guy that's providing the testimony and that's his testimony that's not substantial support that's incredibly weak support especially when the entire record says otherwise you know our issues are statutory i think all of these statutes need to be read together i think file a claim for a pulmonary condition you smoke a pack and a half a day fifty here that  something that is applicable you know whether the commission's findings themselves may have been right i think their interpretation of the statutes is it's absolutely erroneous and to say that something isn't applicable for a pulmonary mission because ok and i think you know it is certainly a decision that is absolutely contrary ninety eight and if you actually read the fifth decision nineteen d is not a draft i mean it's a great sentence and that's for every there's well if they had not put the words in their decision that said thanks tonight is not applicable so it is impossible for us to assume that they considered it and they gave them a lower rate their own language pretty much take care of that had they just said we think that's all it only needs because it doctor they didn't have that one little sentence on the fourth finding then yeah i think we could all probably stand here and say yeah they might have done it but this is a little bit lower than what these guys usually get i think that would be a fair assessment but they did they have a statement that put out that section one thousand the is not applicable for a pulmonary case for a guy smokes a pack of happen a day that's as far  be speculation because there is no objective way to do it in fact there isn't any subject of evidence in this case to base an opinion on no expert even tried mr hewitt started smoking at the age of sixteen or a number of things because the testimony went over a number of pages and i can cite the the i think period the page and get zeshan page twenty eight where he said if he's got it now he had it then because it's the only place you could come from that's what he was saying and i think one of the reasons that the commission livestock are you will and choose him over dr ira qualifications is they find him very honest he's not a professional with on the other hand as such it's like eating worms take his deposition when good counsel for the other side doesn't refer out all of his patients with colon or disease on olives and counsel asked a specific question have you referred some of your patients over the years to all nobbs to take care of some of your patients who may have deposition i could notice some patients with pulmonary disease over the years was going to be made to look like all patients or that it would eventually morph into referring his pace with actual with  for someone to say come in your past your work that's not the way they do they say here's a woman will want your zero zero zero which was your x ray look more like there's too many here too small there's no such thing as five thousand three hundred do not equate to what would be a one slash hero it's not a positive test and someone is determined not to have poll workers in the county offices specifically if you look i mean and it goes back is that the reader system goes back to the federal system that if you look at the federal regulations they know and i can't tell you within a reasonable degree of medical certainty that he had the condition not everybody's progresses so i mean you you can't just pick and choose pieces out of these experts opinions and that is what the employee is basically trying to do here and what the commission has done you have an expert who specifically specified within a reasonable degree of medical certainty i can't tell you that those opacities were there and that's the whole point he can't tell you that he had the macone osis only claim he can get benefits for sonoma county houses so as a matter of law based on that testimony saying it's speculative and i can't do it within a reasonable degree of medical certainty he should not have been found to be entitled to benefits pursuit section one you know if he said anything other he said i think it might have been there he did he says that in the beginning but when he's cross examined about it he then is like i can't tell you it was there can't do it and that is what dooms the case for mr hulett this guy was not sufficiently qualified to be able to express the issues that need it and for that reason you know if one at doesn't