contributed or caused him to have a surgery the second one was the work might have you know contributed third one was i can't say that the work necessarily caused it with any certainty i think and as i indicated there is no way to tell when the rotator cuff develop so basically what we have here is a doctor saying it might have contributed i can't say that it necessarily caused bennett with any certainty they contributed to what was april twenty ninth two thousand and three section six c of the workers compensation that require sped notice of the accident be given within forty five days after the accident as soon as practicable b prejudiced there was i don't believe the prejudice inquiry comes into play your honor because the note that was given to candy once in the nurse at the plant only contained his restrictions those restrictions were the same restrictions he had in two thousand two thousand and one and two thousand and two they were the same restrictions he had after his previous injury which was a commission in which he could was granted in a war there would be no reason for my client to necessarily make an inquiry as to what the cause of those restrictions were they could have naturally assume that based emanated from the that's obama contention during the course of the trial he says he was for three or four months after he came back to work from the prior injury but that after that  testimony was all over the place i had help when i needed help but i had to live things i had to pay it's not real clear what he did and what he didn't do but yet the testimony he did because it still is the same restrictions he had ever since the one nine hundred ninety seven claim now with minute late he says he wasn't working within those restrictions my client was represented by ruby presley oppressed supervisor who'd worked away from doing all the jobs that mr sanchez did who testified there wasn't really any heavy lifting involved in that job and she's worked there for forty two years and knew every job at that point inside now and that there was really no heavy lifting in that job and with the confusion created by mr sanchez's testimony i don't contrary to counsel's brief where he accuses me of causing the kid confusion during the trial i don't think he can give it a lot of crew dence to what mr sanchez said and and i don't think just giving that notice a note saying that someone has restrictions does and i don't think and three he said he gave the note to candy once and and he and i asked him you didn't tell me anything about your condition and whether you believe it was related to work did you he said no influences but i don't believe that you can draw these inferences that there was a new way and just because he has restrictions there is no credible evidence in them that he had met the industrial incident or believe that is condition was related to an industrial one today we believe that he failed to give timely notice as required by section six pain in the decision as against the manifest and well reasoned decision of the commission why didn't his name give his leave them when the arbitrator excuse me why did they believe him when the arbitrator didn't i believe they believed him because i'm viewing the testimony they providers as well that when he talked about doing overhead work he was doing a web work and it's reflected in that and they also were the commission was very cognizant of the fact that apparently to pick repeatedly in dr collins notes that he should change his work lifestyle in other words stop doing this overhead stuff that is aggravating his shoulder and that's why i think they believe him is because he was corroborated by what he told his doctors it his provider so it wasn't just him standing alone also there's nothing coming back the other way contradicting what what mr sanchez had to say the only person they tried in the way of a person to contradict him is a supervisor he didn't have to look twenty five when by his own admission he was not do we deal with head work anymore this lady was not his supervisor in twenty three when he returned to dr collins previous restrictions were not served so listen don't sort of put them on some degree of notice second of all he did say the testimony of page ninety three ninety four the commission record i don't recall what that translates to in the appellate record that he did on a small term might have existed but his testimony his deposition it might have been a little bit of a partial thickness to the undersurface rotator cuff but we didn't really see any real evidence for that tear so it was more specific what we discussed earlier is a stage two impingement so there really was no clear evidence and even if there was a small tail which is more based on dr collins speculation there wasn't anything approaching the large chair which was seen acknowledged it was contradictory says although it sounds contradictory i think it more likely than not that mr sanchez unable to follow my restrictions he more likely than not would not have ended up having surgery on the right shoulder in twenty five and he also stated i believe this is his deposition i do believe the rotator cuff tears more likely than not related to killer stresses of overhead activities and labor through the years but i got think i could related to anyone's particular injury well as typical of  of a repetitive motion thing that's not going to be one bent that caused it but the repetitive stresses of the overhead work that he was doing over over the years and clearly this is a new injury  that took place since this two thousand and one surgery from his previous injury and a new one and that took place this terror developed some time after the twenty or one surgery and his surgery in twenty one the only person they could bring in was a lady who was not his supervisor told twenty five where was his supervisor and twenty all three if if there really wanting to say that he wasn't doing over at work anymore out everything that would be appropriate for this court to young to understand why he did what he did and that what he did was only supported by the evidence particularly the not just and it's not just the testimony  without trying to beat it that horse excuse the expression on the notice issue yes mr sanchez did testify that he gave it told randi he told candy but that was two thousand and five not two thousand and three i quoted to you from the section of the arbitration transcript where he said i told them not think that randy was in there turning the mess to the argument to mr co made that their worst changes to mister sanchez his physical condition well yes there might have been but the only evidence my client had when he came back on april twenty ninth two thousand and three was the same restrictions he had been given in two thousand two thousand and one in two thousand and two that they were aware that there was a change in condition he didn't testified that he discussed with them what that slip mean t additionally they say we brought in no way of events to challenge mr sanchez it's credible testimony that there was no overhead work i think misunderstood what ruby presley was there to talk about ruby presley started out as a pattering pack that he she then became a set up person she then became a super person and became a supervisor she's been there forty two years she's done every job in the facility she says there is no overhead work mr sanchez by his own testimony said work with it shoulder level or below he didn't testified over him lifting and again his testimony was very contradictory but how do you pick out what to believe and what not only is their burden of proof on this  my client and i don't believe that the decision of the commission is well supported by the evidence and we would again request that you reverse their decision by knowing that it's against the manifest weight and th