injury on the job he was lifting about forty pounds of paper into a printing press and says he threw the paper heard a pop in his back and felt haim over the succeeding days and months he developed more and more back pain rated killer symptoms and i don't even have a problem saying that over time it was aggravated as he worked but the problem is that when you get to two thousand and three he suffers a discrete distinct injury on the job and everything is there to trigger the statute of limitations are running we wouldn't be here today if he had gone and filed his claim timely we wouldn't be talking about repetitive trauma our manifestation days if he hadn't waited too long to file this claim but it's interesting to me that arbitrator peterson and his decision i don't think i realized this actually kill her sitting here this morning arbitrator peterson finds against me but he says he sustained a discreet injury in two thousand and three but he claims that i stipulated to a different day the date of manifestation it was claimed by the petitioner but when i went back to his decision he never mentions duran or oscar meyer he never talks about manifestation dates he never says anything about repetitive trauma and his decision actually wasn't a decision to say i agree with the petitioner this is repetitive trauma case his decision was simply to say i've got to find a way here in the way i've found is that i think you stick related to the later date so you're stuck with it really didn't make too much difference with your retreat or did this as well and it doesn't but i guess what it goes to is talking about whether that it's clearly contrary to the law and opposed to whether it's manifest it was manifest to pietersen that it wasn't repetitive it was manifest to his to the creators it was manifest in his expert who said he obviously sustained a discreet injury in two thousand and three i don't see anyone saying and if this is the case it may not be a manifest way case i don't see anybody here saying that he of a preexisting congenital condition or whatever no i don't think that's significant at all i think the thing we're looking for is that point in time where the claimant knows what he needs to know to make a claim and i suspect many discrete injuries begin it begin as repetitive traumas that is over time your body's wearing down and one day boom something gives and you have a discreet injury and you're not entitled to ignore the discreet injury because you've locked yourself into a mindset that says this was a repetitive drama because the the commission i think was a little lucy goosey about this i'm not quite clear where they are agree that there was a discreet injury what they say is that he forgot about it well don't we have it continues working until you can no longer work right yes a twelve hour shift in the just you know hailing i don't agree with that i mean i think he kept working till he had the surgery took some time off to hooper a p came back he worked one day with limitations and then he walked off the job i mean that's one of my other points that's maybe you never get to if you handle it the other way but  had nothing to do with this it was one clearly specific discrete in theory that might continue when performing is jammed like there's no problem well i guess my point is what what's missing at that point when he feels the pop i mean i would he hears the pop he feels pain and he just threw a large weight of paper into a machine i mean i think if we any of us just out of the blue if you were given those facts would say the guy have a had an injury on the job that's an injury on the job and whether it's fully manifested in ridiculous symptoms immediately or whatever that's not germane to the question to my my how are you defining the manifestation of what in your opinion is the manifestation date under those circumstances well duran duran i don't think we've been taught i guess what i'm saying is i don't think we even get into the world of manifestation dates and repetitive trauma if you have a discreet injury the supreme court in duran said it's easy if you have a discreet injury the date of injury is the date that the i i have a case where a guy did just that that he was hurt on the job he walks in an abundance of caution and says i want you to know i just hurt myself i'm going to keep working maybe i just go away but he fulfilled the requirements of the law in terms of  colleague suggest if somebody feels a pain it goes away quickly and then it manifests itself some time later you're going to say in hindsight we should have you know considered the day to focus first paying the discrete injury well i think it would be the rare case where the employee went three years with no manifestation of the injury i guess i would start to question whether he actually had sustained any injury at all in the beginning but those aren't the facts here i mean the facts here are he feels pain he hears a pop upon doing a heavy action at work and it's within a period of a month or two as my recollection of the evidence that he's got back pain he's got ridiculous and he just continues to gut it out and work through it he had everything he needed within  well he had everything he needed to give notice and actually file a claim when it happened but he had plenty of time after that to do it if he had slumbered on his rights you said something interesting at the beginning i believe he said there's really no evidence in the record to work finding  so yes he talks about the rupa repetitive situation or had a wearing away of this congenital spider holes thesis over time but for our purposes i guess what i'm saying is it doesn't matter that's the situation if you encounter a discrete incident where the employer is a employee is able to put two and two together and say i deserve my back and i did it work i probably have a worker's compensation claim that's the problem i have there's a good reason to have an exception to the rule for cases like carpal tunnel and gradual insidious conditions that the employer just simply can't know for sure but the supreme court makes that a fairly bright line test it's an exception and it's not allowed to swallow the rule which is if you have a discreet injury and you realize you hurt yourself on the job and you trigger the statute and you've got a very generous of three years to do some so it's a very appealing argument in the room the problem with that is that the commission didn't find it they have to make the finding the issue really comes down to stop and think about it is is there any evidence in this record to support the commissions that well and this is why i was saying i think it's a case where it's clearly contrary to law to the extent that they want to say there wasn't an injury in two thousand and three then i think it's against the manifest weight because you've got the doctors you've got all the experts you've got the arbitrator below all basically saying yeah he had a clear discrete injury in two thousand and three as i say i think your decisions a little money i can't obviously i honestly can't tell whether they're clearly saying he sustained a discrete injury in two thousand three months say they are wrong on that ok and let's say there was a screen where isn't the law that you have to are they connected with well if i understand what you're saying i mean that the real question here is about the petitioners knowledge is ability to make that cause a connection to when his employment and the injury that he  experienced or his feeling right and so let's say all three happened i think so although i worked in the strip mine i don't know how many potential claims could have been filed every day sure it's they say you know it's not til he goes to doctor hurley and quote dr hurley dills deeper into his history that he states that he remembers a time two years earlier when he heard a pop in his lower back that's not even repetitive trauma i mean that's just i forgot but yes i had an injury i can walk in and tell you about this injury i can tell you about the pop and the pain and the throwing the paper and all of this would say that's an injury but what the what the commission comes back and says this but he forgot and he didn't realize till the doctor questioned him to your leaders he did he didn't realize that he had forgotten but there it is that's not and that that's not a repetitive trauma situation my point is simply that once you get to the point where did we believe the reasonable could say in his head i just hurt myself on the job that triggers the statute and all that flows from that and it doesn't matter if what you had up to that time is a gradual wearing down or a repetition a rep of repetitive trauma up to that point once something happens whether it's going to the doctor and he tells them this was work related or whether it's yeah i just hurt myself on the job once that happens and in his mind he knows that he had an injury on the job then there are certain consequences to that there are certain things that flow from that and it's not pretty in this case were well as long as the current condition deal being the phrase that incident but oh well ok but i but i after every can this consider the commission says based upon the factual situation we find that the manifestation date is february seventeenth two thousand and five that's based upon what couns the fact that on february twenty two of zero three he felt a pop in his back but did not receive any treatment and continued to work and the pain went away the fact that he continues to work and the condition continues to worsen and get worse and worse as he goes on and works and works and even goes to a doctor for an unrelated condition because the man is legally blind and he's going in for eye surgery and he explains to his eye doctor that he's got pain in his bag and the pain is great radiating down  his legs and the doctor doesn't want further assessment maybe you should see a specialist and then sends him to the specialist and he talks to the specialist back to early and explains to the specialist what kind of work he does and that the special says that's work related and that's when the injuries occur is noted as a work related injury he continues to work until he can totally breaks down and can't work any longer based upon all those facts and there's numerous facts for the ten to fifteen years that he experiences the pain he's employed there for over thirty years and continues to work every day and describes his workers lifting paper and bending into to put the paper into a machine all day long and he also does work on the machines tool does a lot of bending and twisting based on all those threads and the conclusions of the doctors even their own doctors so even counsel mentioned  yet at the very beginning of his argument that his work could have aggravated could he have aggravated this condition that establishes enough in my mind to be factually sufficient for repetitive trauma injury now those are the facts and the commission adopted those facts and based its finding based on those facts and in my mind that's a man to persuade argument pure and simple i guess what i want to say to you is that it seems to me the emphasis shouldn't be on whether or not the gentleman continues working every day with pain if you are going to decide that someone who chooses not to get medical treatment and experiences pain and suffering every day as the result of a discrete injury that every day is a new injury that every day is is a repetitive trauma then you can say goodbye to the statute of limitations and notice requirements were did  well what he had to proof for repetitive trauma i guess he would have to it would have to be a situation where he never had a discreet injury and didn't know that he'd been heard on the job that's the classic repetitive trauma case i've got carpal tunnel my wrist just hurt i don't know why i don't know what i did exactly that caused it the doctor says well what do you do it work well i saw or whatever well guess what that probably happened at work that is not this case and mr wish next characterization would have when he went into the doctor isn't correct if you look at the medical notes it says first thing up a patient history patient says two years ago we heard his back throwing paper into the machine you know this isn't an exploration of the facts in a finding out that it was work related he tells them that up front when he walks in so you know the problem is just that the rule is if you know you were heard on the job you've got to follow in a certain period of time and the only reason we have a repetitive trauma exception is for those cases where you never would realize that because you never had a discreet injury and if you go with this you really allow the exception to swallow the rule and you make it immaterial that there's a statute of limitations anyone can come in walk with mr wish nick and claim it was repetitive because he heard every day thereafter