basis and should be reversed the reasons are to first there is no requirement of black sputum to have chronic bronchitis and second dr ronan birds opinion that there was no chronic bronchitis was based on a feeling there was there i think that the key question are you getting to is the entries of cough in the record and what of treating doctors in small towns do it with cough i grew up on a farm and i remember when i was just a very young guy there were certain things you look forward to so you could be a man one was when you're all in the hay and those red ant reveals that when you're a man you've got to use a halo you know that you did you also when you were a man you ch find to answer that question and to prevail today i have to find the basis of dr rosenberg opinion if bad basis rests on no scientific fact if it's nothing but speculation then his opinion is no good and the opinion of the of the decision commission should be overturned and bess where i'm going the basis of dr rosenberg opinion was his feeling that it's meant truly had chronic bronchitis he'd have gone to the doctor about it but what about just two consecutive years that's all it is this isn't the talk every day these people don't go the doctor every day when they go to the doctor what they talk about when they talk to what to the doctor what does he write down in fact how to go to what  person can have chronic bronchitis caused by both smoking and i'm that of a person who leads the mind of chronic bronchitis and it continues to smoke the smoke is not going to cure the chronic bronchitis caused by mining and the coal mine desk can cause a clinical picture indistinguishable from cigarette smoke induced c o p d he also said that chronic bronchitis can be aggravated by cold us even if it was caused by smoking now he also said these things about the inaccuracy of rosenbergs that he said that not everybody goes to a doctor when they should what i was talking about he said if a person goes to a doctor for some other reason the doctor may not put down that there is talk and that would mean that they didn't have  and this was thought if he if the commission he had on decided in favor of the petition of these would all be good reasons of to support their decision but the fact of the matter is they didn't and rosenberg he did plane didn't have a chronic respiratory condition or impairment related to his employment in a coma now out one percent all they have now is the commission didn't want to leave name half but they did and so now the question dr rosenberg himself was taking apart the fact that the medical records aren't going to be able to tell you whether you got chronic bronchitis now what you can do is take that patient history and here's another it still hard to  exactly what he said my feeling is a feeling would be that if you truly had chronic bronchitis it would have been bothering enough to go the doctor more frequently than every four or five years well that is absolutely wrong he didn't go to the in this case it started out with dr cohen and dr platt having a patient history they're trained to do this they ask the right questions for chronic bronchitis we don't know that or streeter's it but after respondent moved that chronic bronchitis on the table he did not have the dr rosenberg from an example he had no patient history he had to be he never saw the man he never talked to him he asked no questions he didn't ask he didn't know what questions to treat or sas he just had this feeling and i think it's wrong for the respondent to be able to keep the court from having a patient history by dr rosenberg that could just telling you that even it feelings were a sufficient basis for an opinion on what would deny a claim the feeling should at least be based on some first hand knowledge this guy has any could have had to have a right for that exam but as it stands he'd have to be more than a mind reader he'd have to be careful or he never saw those he didn't know who the treaties were he did as he said he didn't know why they went there he didn't know whether or not he complains every time and there's a third reason and it has to do with the definition of chronic bronchitis it's a mathematically it's mathematically impossible for these writers to disprove chronic bronchitis gamma definition  most days of the week three months of the year two consecutive years now if you take that flexible temple and you can overlay it on these treatment records fifteen twenty times and have chronic bronchitis but but was he didn't go into that it's like i don't know if any of you are done but you swing that shotgun and you shoot the guy and you hit it you know you hit him except for one thing he flew through the pattern well that can happen here too the  so can they accept feelings when they have on the table the opinions of the off man who is the medical director of all the nation's black lung clinics who took the exam asked those talked about but it's a manifestly question doctor rosenberg did not examine this time and that's true and the reason why i didn't have an examination done is i usually don't in these a chronic bronchitis came from the chronic bronchitis and from the examining physician in this case my response to you is that i was not at all time to keep any evidence from the commissioner the arbitrator i'm the one to put in the treatment records at this gentleman so that they could see whether they feel and know where in the treatment records is there ever a diagnosis of chronic bronchitis made and i think  true there are i think i can remember who pointed this out there are entries where this man did have a complaint of off so it's not as if he just selectively every time he went i'm not go according to rosenberg well according to the treatment records that he relied upon yeah ok so so you're saying that a fair reading of the treatment records shows only hugh bronchitis not time it definitely doesn't show  misunderstood you there's not a treatment record and i think it's fair to say that dr collins not treated right no he took a history from this gentleman of coffee every actually what he said was coffee every morning since age thirty five the commission found that not to be credible they believe dr rosenberg and his opinion is supported by what we have in the medical records which is no diagnosis of  fact question for the record supports the medicals or it's the reason why i didn't have this gentleman examined is because the testing that was performed on him was absolutely normal so there nothing to be gained by me having met testing repeated i guess i could just send him to a doctor to take history for me and nothing else but dr cohen has the fighting picks up there on complete history and my  doctor that reviewed all the evidence has that plus the actual treatment records so i didn't have been seen to repeat the testing because here's my question for you in this case this gentleman playing the cop and beautiful in the morning of the test that he underwent exercise testing and he had a normal work pass in fact i believe dr cohen testified that he had to work its  capacity that you would expect of a normal healthy sixty four year old me he in fact denied any shortness of breath with the exertion that dr cohen so the other question here that we haven't talked about is it's getting up in the morning and coughing and bringing up some sputum is that disability under the when i feel the heat i see the light up here it came back to me i have page nineteen a freeman brief page nineteen i'm going to quote the commission's decision does not necessarily nineteen the arbitrator does not make it clear whether he found chronic bronchitis or not and i'm saying you could rule it out now well when you read a statement to be in your ears decision that leaves the commission it rosenberg talking this guy in finding chronic bronchitis but it's not really all over these records i just won't have them go there now so i think that's probably a good reason that they might be doing that now if they saved money