that the employee did not face any risk greater than the general public and so his shoulder injury did not arise out of the point now as you know in in cases like this we look at the type of threats that employees is exposed to and i think based on testimony that there were similar type combination table invention used in various aspect of this and when you look at cases that that discuss quantitative risk such as at metropolitan water reclamation district i cited but also the oh i consolidated telephone company risk public would be exposed to this risk let's say you go to sam's club and you maybe buy a hamburger or something you want to sit down and eat it you know that's going to be something that's going to europe where he sit down at this at a table there was testimony from not only my client but also mr madison that they had complained about the size of the table to to their employers there there wasn't any defect in that there was a break in the bench or something like that that qualitatively make this an increased risk he increased risk is that a normal sized individual like my client who was five foot ten hundred ninety pounds couldn't sit down and and on a bench that's provided by lawyers for either use during their breaks for their use during lunches without falling off the back of that i think that's pretty good evidence you might get or something but that isn't what  conclusion it must be too small for the dump and what the there's one other bit of end of evidence that i think is pretty telling in this case and that is that despite all of the complaints that mr madison and my client testify that they well you know he was an employee here at stratospheres and he was he wasn't title to use the break room and he was entitled to use the equipment that or the the table that was provided by his employer for that you know wide being too narrow but there is the fact of the fact that i i think more telling your honor is the fact that my client wasn't a normal size individual and was not even able to step back just t cision as i read the law which i know you know better than i do is not supposed to be disturbed unless it to give some manifest way to the other so here are all of the tribunals upheld that that titian did not prove did not carry the burden of proof this but i always have to point out that the personal comfort doctrine does allow the petitioner to be considered to be within the course of this and why this isn't a rising out of issue only  court required prove of the defect that the curb was defective here the petitioner is claiming that a work place condition contributed to his injury and that requires the proof of th we've got two things one theory doesn't apply in this case which i'll go into number two is it wasn't crew truck which your questions point out exactly what the problem is the testimony was to the contrary in fact on cross examination i tried to get him to say that he had used this table many times that he is a group and said no i did but i did on occasion i think was one of situation under the street risk dr the employer is required to travel away from his from orders a place of business premises and the employee is subjected to a broader concept of risks this is where i read the cases and i've read i believe all of them that this is a this is a broadening of the concept of risk the risks of the stream of the risk becomes nebulous so that the lack of proof of the defect isn't so important for instance in the capital or case notice that the with her must be proved effective what the court said but under the street risk doctrine when you apply that and you phase over into the metropolitan water reclamation district then a six inch did in the sidewalk on the way to the bank is now suddenly a risk that can be quantif d as you point out and i see this broadening of the concept of risk you still have to identify risk here i in order to quantify something and i see here that in order to get to the street risk you doctrine other than it's got to be away from the premises those cases all said and particularly the reclamation you can see it in the in the metropolitan water reclamation district it talks about he says i have different types  power in that case that she was required to go to the bank she was required to do this here in this case the petitioner testified that he was never required to reclamation district case is that it's to use the theory to get rid of the problem of that then a fine and a risk for the what the quantification which is exactly what you asked me about in the record and the record does not show this he testified that he had used the picnic table on different occasions and head again i said a minute ago when i asked him i tried  that he was a frequent or regular user of the table in the bench isn't he just absolutely that's not in this record  was the picture of the table they had testimony that it was an industrial table manufactured and that it was ul approved and that similar tables were encountered in the is that something that can be considered by the of the court here and as proof of a defective condition of that table fact that it was moved out of that area afterwards i can't question about that and that's not the way it is in the end and this record ok that i mean i i don't understand why you would have to have an explanation that there was a causal connection between the d ones too big ones too small ones are just right i mean this these are statements of personal opinion there's no there's nothing to do to show that there was anything wrong with this record from the employees that they had made complaints about this table to their supervisor and the only and there there was no evidence to the contrary other than the  in those employees testimony with regard to how they felt it was too small and yes you see in you you can see the picture and maybe they do use this exact same type of table at sam's club but it doesn't take away the fact that if someone sitting on that table on that bench rather they can and they can't move back or scoot back enough without falling off of it i find that to be dangerous and basis would he have had to say yes i use that table every day three times a day in order for him to make the quantitative basis certainly and we just look at the fact that this is a table and bench that is provided to the employees to use by their employer for their breaks that occur three times a day and that it if and maybe it didn't happen to somebody else but it if it was moved after this accident and maybe under personal injury law that's a post remedial measure but there was no there was no objection to that line of of examination in in the in the records so so the the evidence did in the the the street risk case where i'm not trying to make this into or expand the street risk analogy i'm just saying that in that case there wasn't any defectiveness of this of this sidewalk it just had a dip in it and she felt the the caterpillar case that opposing counsel was referencing had to do with a deep they're not being any kind of