i think on this point dr bush was did not provide any specific work restrictions related to the poem unary condition didn't the doctor tell him you need it and i'm looking at the testimony of the claimant i need to be told me i need to be disabled and go to social security and get disabled and he told me i had to go to a coma knowledge asperse so telling someone they're disabled and should apply for social security benefits why doesn't that in the case it's your correct in viewing the reason at issue when dr blows up provided that opinion he did not provide it from an unequivocal employment related disability standpoints whilst you apply for social security except to get money because you're disabled for mor correct correct around but the disability does not have to be work related and in order to get social security disability benefits and i am now sure you can you can hurt yourself out of the park on the weekend absolutely your honor but you have all your argument is not about how the cause when there's plenty of evidence this was caused from working in the shipyards are that your argument was he was not disabled on that march date correct it is your honor not the sable so how do you square saying he was not disabled with the doctor saying apply for social security because the act the fines disability as the incapacity because of injury to earn wages which claim it was earning at the time of injury and same or similar employments in one thousand nine hundred four that definition of law was amended it was added that it needs to be a sent him to dare doctor for a medical screening he passed he successfully obtained that job as a welding supervisor as he was working with biology and actually his testimony throughout the record you will notice that his job was not only the same it provided greater work activities he was working longer hours he was exposed to the same injurious them you lie plus additional injurious them a lie that he was not exposed to and ol the wages he earns at thomas c and that seven period seven week period were actually greater than he earns with biology therefore there was no diminish our new capacity and no well maybe you're right that he wasn't disabled but the problem is the question is just did the agency have substantial evidence from which they could have concluded he was disabled i think it's when they rely on a doctor saying apply for social security disability  even if you're right about dr was wrong it how is that not evidence that would have supported the agencies because we feel at the agency that not look at the substantial evidence and record they didn't give credit to his subsequent employment and what else is important to note when he left thomas c and i should use the word terminate a thomas e it was also not because of injury he was terminated for lack of a better word sleeping on the job so that that proves in our opinion that there was no disability and then he didn't file his claim until after his separation from thomas c that's when he contended his disability started  substantial evidence was taken into consideration the record what the lower courts did in our opinion is misapply the awareness standard for could dio the entire lower court's decision is premised on cardio which is a nine hundred fifty five case out of the second circuit the board in reviewing judge remarriages decision in order recognized that this honorable court the fifth circuit has never applied the awareness you disagreed about the data disability which is what you started off saying here absolutely absolutely did you say cardio is not the law cardio is wrong yes we argued cardio is wrong we all get it before th book did you when i did say you are doing to us not the cardio is wrong just that the awareness has to do with the data disability not the date of injury you rely on that first circuit case right that second liberty awareness really is about first circuit case it looked at cardio and i looked at it closely and essentially said cardio cannot be applied blindly to cases where awareness and diminished earning capacity occur at separate times to three come back if the board was right in saying borzois in march said he's disabled i know you disagree with that but you lose it if the board is right about that yes your honor on that issue in liberty mutual going back to the disability arguments it looked at the cardio standard and went back and looked at the legislative intent of congressional history of the last responsible employer case and because it was congress awareness aspect alone gives too much subjective review from a claimant standpoint while the data disability tends to rely more object of evidence which is essentially what even putting these legal test to the side for a second you've got this guy working for years and years at your shipyard under conditions that everyone agrees can cause this type of it pulmonary condition and then he goes for seven weeks to this other place even if it was worse there and it just seems to be hard to swallow that that's seven weeks cause that in years and years of working at your place then and especially when the testing was the same when he left your employer as when he was tested after working at the thomas e don't you think if you think it's it's that seven weeks the evidence only calls for that conclusion that it was the seven weeks and not the years and years that caused this condition very good point your honor and i would just like to back up and we're not or if i am i am arguing that it caused it because i understand the p f d tests that were done in two thousand and ten that were essentially same march twenty second two thousand and ten and july twenty third and with doc to go inside essentially the same continue to decrease and worsen dr gomez of the post again and he centrally presented the question of doctor before you said there was no difference is there a difference now yes there is is there a continued decline yes there dr if we told you that mr worthy experienced this here at bollinger as well as this for seven weeks at thomas c did that all contribute to his condition and the answer was yes as or get to the b or b and to your honor's here however even though i have been in my opinion the testimony that it did contribute to his condition what a what a case which is which is the sign of a court's decision and i will stand for the proposition that you do not need an actual contribution of course ation simply working conditions that could have and i believe it's undisputed and all the doctors have said that the working conditions that thomas see the inhaling of all those particles and toxic fumes has the potential to cause or aggravate a pulmonary condition going back to the disability argument that i'm making the liberty mutual case from the first circuit also looked at the ninety four eighty four minutes as they pertained to a claimants under nine thirteen including the claimants awareness of the relationship of business z's with this employment and disability and once again i go back to he was not the sable until after his thomas e employment that's what triggers a claimant's requirements for filing a time protected occupational disease case what made him disabled after is thomas e employment who are you pointing to because you don't think he worked first appear but for different time periods a total of i would say ten or fifteen years there were breaks when he went out for other injuries and the work of her or seven weeks seven weeks testimony further reveals that he said that he would have to use the inhaler more at the end of those days there were longer days at the end of the day see what coughed up black stuff out of his lungs his nose so to answer your question question it was a tremendous and greater exposure than he had apologized but i mean i could i could follow that in terms of exacerbation of a condition aggravation it's better still seems difficult is there a medical opinion somewhere that says is what you're arguing you know the word causation is not sort of this incremental long term exposure versus an intense short term you follow him same get is there i hear the argument but is there something in the record of some physician or someone else  opines medically what you say is the case the only opinion we have on that issue is dr gomez's deposition testimony that that was a contributing factor to his overall pulmonary injury all right bill morning honors richard valle representing respondants thomas e and l w c say we hear from an appeal for the vote of serve you board who up held the decision of the administrative law judge in this case where there were facts which the administrative law judge relied upon to come to his conclusions which are supported by the substantial evidence in the record and so so long as there is  stantial evidence in the record we believe that the ale jay's decision as affirmed by the best review board should be affirmed here this whole case deals with the legal principle of who is going to be the responsible employer in cases where the employee he works for a succession of employers or more than one employer  the time that he becomes exposed to injurious stimuli and who is the court going to pick to determine who should pay all of the compensation medical benefits doing knowing for that injury and employee during employment for which he becomes disabled and is aware of the connection between that exposure and his employment  is the last causative employer i have a question about the framework in light of what you just said which is how i read the task but what happens if that's the test why wasn't just the end of story when the board said when i supposed to be disability so that's what kicked it back the first time was the b r b asked jay what do you mean by awareness is that the same as disability because you can be aware that you're sick you can be aware that it's related to your employment but if you're still out there every day doing what you're supposed to be doing you're not disabled and that trigger is all three right but so when it gets kicked back gail jaden to say he was disabled in meets all of those when he was with bolen jerks but so then it why isn't that the end of story because even when it got kicked back gail jay still said well let's see if thomas sees also libel and they're not because they were bonded with this task but it seems to me if all those awareness components are met in march when you still wonder bull injures care that's that meets the test and that's that's the ballgame the judge found he was disabled on march twenty second twenty ten because the doctor said you can't work here anymore you have to go try for so security disability you need to see a pomo knowledge is and he was unable to work and that's when the economic disability occurred on march the twenty second twenty ten when he was working anymore  er wouldn't let him work there anymore and he started missing wages i argue that if somehow hypothetically bolland's or had excuse me that the claimant had not found the claim until march the twenty third twenty fourth twenty eleven more than one year after he saw dr boucher on the twenty second bolland you would be in here saying your claims prescribed you are aware of your disease being related to your employment and you were disabled on march the twenty second you need to file a claim before march the twenty second two thousand and eleven and since you didn't it's prescribed why they kept asking for the analysis of the twenty a presumption stymied me for a long time and the best i can do to answer that question is if i had been the b or b i would have said judge romero or remanding the case back to you because you kept using the word awareness we don't like that word you like the word disability so would you look at the facts in the context of disability then and only then if you disturb that the disability is after his employment with thomas c then you need to figure out who is responsible employer based on who was the last cause of employer to have caused harm to mr worthy in this case that would have been the better i don't know why once it's determined that he was where he was disabled and he knew of the relationship between his employment and the exposure at volunteer that's the trigger i mean that's patterson that's that's all the cases aside in our brief that's the trigger that trigger occurred on march the twenty second twenty ten which is dependent on the facts which the l j also found that the facts were substantial for that that the analysis should stop there i don't know why they said ok now we're going to do the twenty a presumption dance twenty a presumption first and if he doesn't he said he does that and you move backwards in this case the ael j also found that going through this exercise which i don't believe was necessary but when he did he found there was substantial evidence that the seven weeks of exposure did not cause him harm and he found that because of the p f t's and the to that even if thomas e had to rebut the twenty a presumption which i submit they did after do they did they did with the facts from duck to go nce in the p f t's which is what the edge relied upon to is the last causative and thus responsible employer occurred on march the twenty second then there should have been no further analysis in the case because those cases that i patterson say that it's the last cause an employer before the employee became aware or with reasonable exercise would have become aware that his employment caused his sickness for was disabled and once that occurs that's who the last cause employer shall be and in this case that occurred before he went to work for thomas e and between march the twenty second when he w bollinger said you can't work here anymore because of your c o p day and the claimant knew that his c o p d was at least partially related to his work out there that was the trigger date and he did not go back to work until seven days later and therefore that's the economic disability was during that period of time which which triggers the last cause of war in paterson that was one month of unemployment which triggered the the date of who's going to be the last cause of the poor and so i don't think whether it's one day or seven days or one month really matters it's not the length of disability it's when it occurred and when he was aware that that disability was related to his point in this case it was more so the twenty second again twenty ten actually  kept trying to think why they wanted the ale jay to examine the twenty a presumption if he finds that morse the twenty second is the trigger date and it's part of the exercise when you're dealing with this last responsible import doctrine which is judicially created and it's a way that it may not be fair this time maybe if somebody else will have to bear the burden the next time and it's economically feasible so that the claimant doesn't have to come in with doctors and experts trying to say well he was one tenth of my problem and he was one twentieth they just want to get it over with it's going to be the last man standing before he's aware that his condition is related to his employment and he becomes the save him in this case that was march twenty second twenty ted before he went to work at thomas c so ballinger loses this employer these the hearing loss cases and then they got the audiogram on that day and then work went to work for somebody else the next day it was the employer at the time that they had an audiogram was handed to them as that is that that date are well yes or they think that it's just you know what goes around comes around so if you're the one today maybe it's the poor down the street tomorrow but it's a it's been around for a long time it's been his disability and he stopped working for some period of time which is exactly what occurred in this case before he went to work from time to say thank you all right thank you bac one other important issue your honour's that you probably reviewed through the record is claiming himself agreed while he has not made appearance here today about the brief the route the pendency of these claims from day one through the appeals had counsel brought up the twenty a presumption between a presumption that in my view is kind of new to the ball game when it comes to last response when ploy years the best i think the best use of the twenty presumption come from the ninth circuit's and out of the ninth circuit both look at these multiple employer cases once claim an established this section twenty a presumption with mr worthy did in this case the courts do it reverse analysis of each employer storing with the last that last employer has the exit poll exit off itself from liability if you look at the facts in this case it is our opinion that thomas e denied do that and he didn't do that for various reasons claimants own testimony claimants lack of a diminished earning and the dr gollum's subsequent testing which showed an increased worsening of his pulmonary condition one other interesting thing about this awareness stand there is one claim that with the doctor boucher on that march twenty second two thousand and ten date he didn't go there for a poll marrieds emanation he went there because he was out at that time after undergoing bilateral any surgeries and shoulder surgery so essentially is a comprehensive exam and doctor didn't diagnose him the disability period here that we keep talking about there was no disability period not after he left bali injure because of that same day claimant went in apply for the same job he was not the sables disability requires as mentioned earlier more than just an opinion from one physician when claimant has already gone secure a job and has not suffered any diminished