it please the court good morning my name is jim a leash on the attorney on behalf of centennial stevedoring services and home forty surance company we would like to point out that the administrative law judge is decision an order as well as a decision an order of the benefits review board lacks substantial evidence to show that an aggravation of an underlying preexisting several spine condition worsened attributable to one day of employment with my clients of tenniel stevedoring services on february nineteenth two thousand and one specifically when you look at the evidence in this case what we do know is that mr fuller tour the claimant in the launcher actually sustained a specific injury attributable to the employment with international transportation services that injury occurred in august of one nine hundred ninety eight after that injur spine surgery that was in february one nine hundred ninety nine now what's important about that surgery is if used to the doctor rather treating doctor only fused one level c six seven yet we know that from the prior memorized and the level above that the adjacent  cervical spine pain and was interesting is not only the cervical spine pain following the first fusion surgery but he had numbness and tingling in the in the pinky and ring finger of both hands the ensuing reports would reflect that those complaints gradually and spine pain was now constant to moderate he still had the numbness and tingling in his arms and hands but now he had accepted all headaches that were occurring on a daily basis the evidence would reflect that at this point in time during the progression of the symptoms he had still remained in a temporary total disability status mystical it was then released to return to work on september sixth one nine hundred ninety eight and now he securing employment off of the casualty board and why this is important is he's now in a light duty form of employment he's doing the job duties the signalman which require him to look overhead to signal the crane operator ninety feet above so that job requires a lot of the extended movements with the head in an upward extended position as surgery presumably to now operate at the level above which should have been operated at the time of the first surgery again because logic would dictate you now put in greater stress on the disc above what's extremely important in this case is in december of  that but it was the facing the spinal cord now why this information is important is that the administrative law judge judge paul mates placed tremendous reliance on this imaging study to show a definitive objective change in the diagnostic study to show that the work further caused an aggravation and a worsening to the underlying cervical spine condition judge makes use that analysis to implicate since tenia with liability for a long  foundation constructors and price that is that the employment aggravated worsened and accelerated an underlying condition constituting a new injury the fallacy with that rationale is that that m r i scan which documents the increase changes was in december of one nine hundred ninety nine prior to the date of my client's alleged injury which would be february nineteenth two thousand and one what's interesting to note is we know in october of one nine nine dr rao the treating doctor opined that he required revisions very we also know that the evidence shows that there were three different requests by dr rock to perform to obtain authorization from my ts to perform the repeat surgery it was in august of two thousand october of two thousand and december of two thousand what's interesting is in january of two thousand and one january seventeenth two thousand and one for the very first time i  authorize that surgery on that date the surgery is scheduled for february twenty third two thousand and one what the evidence shows in this case is the last employer with whom he worked with centennial on february nineteenth two thousand and one now when you look at the evidence in this case mr koehler atauro testified in a deposition on february twenty fifth two thousand and two that he had no recollection of his employment with centennial he had no recollection as to how he felt that day he couldn't even testify they hadn't increased in symptoms or a worsening of the cervical spine condition what we do know is mr koehler atauro did not report an injury to centennial he did not fill out an accident report he did not tell a doctor that he sustained a work related injury  discretion in credit seen those doctors testimony and relying on the general testimony of the claimant that each time he worked did hurt yes your honor however what the judge did was he placed great or if you want but in co leader that is true however you have to there's a presumption under section two to the act ok another words to show that an injury occurred something had to go wrong within the human frame ok and then with that  presumption and then the river presumption with the shift of the employer to rebut that presumption in this particular case though if you look at the totality of the evidence that testimony by dr rob was nothing more than sheer speculation and it's february twenty fifth two thousand and two mr cole a tour of comes into the court room and now says my recollection is refreshed i do recall my employment i said more in one thousand two thousand and one and that employment increase and worsened my symptoms the and so we do have a prior fact choosing to believe this me and once he chooses to believe him in spite of knowing of the by the administrative law judge and i fully recognize that you may be thinking it's a factual determination and a credibility determination that's not subject to review at the appellate level the problem is and how to get ahead of myself but if i go into this second argument well i know spine that predated michael the employment with centennial fairbairn one thousand two thousand and one so when you look at the decision on a whole it's it's flawed and i do not believe that it needs substantial either so that other that other evidence may have motivated to try refractor believe is that what you're saying that is correct on other words because the rationale was he when he returned to work in september of ninety nine and they wasn't playing from september to december and the words work they could have aggravated that condition very well i don't want to keep you away from circular if you search it maybe this is a good point but the point that we're making is if you really look at the symptoms that mr cole the tourer reported immediately following the first surgery it is a question that all the medical reports chronicle and documenting increased symptoms worsening he had constant headaches constant neck pain numbness and tingling in the hands any physicians would say he's a surgical candidate because he's going to have permanent  in this case the claimant really doesn't care how this case turns out and all of this is the new interim euro flight that probably is to the benefit of  participants collectively because what goes around comes around and someday this will be on the other foot and so rather than litigate these things to death at least they can all kind of tag one guy on this occasion and progression see the one of the other price came in and now price is being construed by all of the administrative law judge is as a last as last mere employment alone is enough to constitute an injury and that's inconsistent with a long line of cases  aggravated or contra contributed to the injury that's correct but the problem was it was no evidence to support that decision and that was opinion that could have any remember the claimant testified that he had worked he had to turn his neck and start a number of times and if it hurt and so even if he didn't recall the first thing i think that he was working the evidence that he worked that day and the evidence is that every time he lacks substantial evidence and and i'd like to just get into the second argument which i think will explain again some of the issues that we're raising the second argument were arguing that there was collusion between claim that mr kohler atauro and international transportation services to create or manufacture a last responsible employer claim now what happened was we had the administrative law judge trial and then we have the decision in order in the administrative law judge judge me for him to counsel for international petition at this point in time there were numerous centuries and with thirty entries that were very troubling and i believe could be characterized as eyebrow raising and it was suggesting at least a conscious and the relation of facts to create remember he returned to work in a light duty capacity that triggered the wage loss theory hundred thirty three u s c section nine a wait see twenty one of the act if his wages are now back to the pre injury level the weight loss theory doesn't get triggered number two there's an entry this says we will give information with submit information to dr ross the treating doctor in advance of his deposition there's also you on something else has to be considered the claimant entered into a settlement with international transportation services and harbor industrial services on july first two thousand and two harbor industrial services who just happen to be the last employer with whom he worked prior to undergoing the surgery in february of one nine hundred ninety nine they paid two hundred fifty five thousand dollars to the claimant payment of attorney fees above and beyond i c s at that time settled their liability they paid no money they paid no money what they did was they stayed in the litigation to further prosecute a last responsible maritime clause employer claim against my client centennial the only thing that i ts did was they advanced the cost for the first for the second surgery which they should have done thousand nine when dr ravi treating doctor said he requires a revision surgery and by all means august of two thousand october of two thousand december of two thousand and one dr rob me three additional requests for the surgery remember that surgery was miraculously recalls his recollection regarding the employment at trial he said i do recall that employment now my recollections refresh and those activities increase the pain in my neck those activities worsened the pain in my neck and i do recall that employment during cross examination claim that then recanted that yes he recognized his prior testimony he doesn't recall his testimony but the judge found him credible so run it by me a received a lump sum payment of two hundred fifty five thousand dollars and now he has motivation to show a new injury against another maritime employer the only one he didn't settle centennial and if he shows a new injury there on the risk for payment death indemnity benefits temporary total disability permanent disability benefits because now there was a surgery payment of attorney fees and future medical care and treatment for which he just settled one week prior so when you look at the totality of the evidence when you review the itemized attorney fees petition that was in counsel for i d s his attorney few petition the evidentially record should be reopened the evidence for the record the case pursuant to the second circuit's hold and  ake should be sent back down to the administrative law judge to determine whether or not there was collusion to create a last possible player claim one of those words will pay a premium suggest likely a premium in the context you just pursuant to the second circuit's holding in the late decision that the a l j order should be they catered to be or the order should be they catered the matter should be reminded back to the l j for further consideration for reopening of the evidentiary records to see whether or not there was collusion because the last possible player rule was not created to skirt liability it was actually again it was a judicial strike that it was created to allow at least the part funding and advancement of  very sure to allow for discussion with the court as it feels i feel as to the right thing in this case they saw last responsible employee a case from the very inception they put not only  carrier on notice they put all of the other waterfront of employers on notice this man is a walking lie billabong he's going to need medical care don't know what now and again states that the question  the entry may be found in the excerpts records page eighty one it's an entry part of an entry dated march sixteenth two thousand and one the pertinent part says what we missed to consider it a bonus of cosmo gets earnings back to his earnings back to the level of the employee well there was no actual offer here it's a willingness to consider ok is it unusual to be willing to consider the payment of a bonus  that's one way of looking at it but but why can't you look at it from the point of view that it's being done for purposes of starting up a situation or two to pass the buck here i dreamed that there should be serious concern whether we were the very trap process has been contaminated and i think that's a basic question here what they presented to the trial court was what these two attorneys were talking they were preparing the of the trial court understood that they were arguing that we were working in concert that we were preparing our witnesses and so for the trial court as late static here's acuity and a wonderful place to observe the motivation of and had a wake up call that after these events which you were to his benefit there are there are a lot of there's a lot of smoke here i'm not saying this fire but there would be something that it would seem to me to the doctor and so forth that there's you don't see that there's a lot of smoke here that would reasonably be left up someone's conscience here to say well maybe there was something in progress yes this court was involved in the proceedings as a truck or was and i was my characterization of the defendants arguments are they are hogwash when you are familiar with all who had a geisha but the courts concern is should we preserve our process and somehow and how's the best way to do that the best way to do that is to ensure the litigants present their arguments first to the trial court in the trial court have fair opportunity to rule on the merits of those arguments in this case they presented they they work together operation to the trial court they presented that same argument to the  if they now want to introduce the new or argument that these entries indicate contamination of the test like they're not without a remedy the remedy is to file a section twenty two modification if americans tell me what difference it would make to the claimant that this so called offer of a premium or bonus was was in the works  difference would it make to him he seeks the same thing in any event does he not overhears or what difference would it make you know i'm trying to fathom that for the moment well i don't against the other employer no there's no suggestion there's nothing in the record that says that the this isn't all in any way connected to any other claim except that it's on the payroll folks for full pay right away if he goes along payroll for the full folder for full wages she doesn't have to set out partial temporary whatever they call it well you know the evidence the evidence here is at the time of this discussion he has barely a mon post surgery and the question is is he going to go back to the hiring hall and try to get employment or not if he does go back to obviously the climate has been operated on four times may not go back to work yet may be very difficult for any of us to prove that someone at his age with that many surgeries really should be back at work but if he does go back to work i see ass was willing to pay him his stateside schedule disability rating without fights there was no question he had a surgery there's no question he's going to have a big state separated there was no money ever paid there's no evidence that there was ever really money  uncontroverted line is limited to we paid for his medical care as required by the law we paid for seven months of temporary disability at the statutory rate at trial everyone reason the two hundred seventy five thousand dollars payment totally overshadows our payment of semi months of temporary this vote of thanks there's no evidence here that there was any payments beyond the mandated minimum payment for seven months  these policy arguments employers in these cases should be interested voluntarily provide benefits the party should be encouraged to settle cases see litigants should present their arguments to the trial courts not come up with new arguments of the court of appeals if you frankly remember this case or other than a poll these cases you are going to s and certainly see not provide any medical benefits when your liability is not clearly established the overwhelming purposes of his facts are supported by i p s his actions and conduct the mudslinging bicentennial litigate this case on the merits however a ways out and that other pursuit but here they just argued at the trial level my working with another counsel tainted the evidence that was a summary of their arguments i'm just visualizing and it's not novel for litigants to team up with each other against a third live again or whatever the case it is them that i take it is all it was for save or to the to the lower court was the fact that parties or parties are cooperating with each other against somebody that they want to see day somebody else they want to see us m record is generously on how their challenge was presented to the trial court and unfortunately only one of their items is actually in the excerpt of record that wasn't they never filed a formal section one twenty two requests for decided to treat as a motion for reconsideration now because the trial judge had no jurisdiction i had already issued an appeal of the decision or to the benefits review boards you know jurisdictions with benefits review and but your on if i may there's one point that is want to briefly get in i have twenty seconds counsel for i c s for the first time well there was state liability concurrent claim we had liability there you know i'm not aware of them making any payments whatsoever to offset permanent disability liability with respect to a concurrent claim david atlee esquire never files concurrent never filed concurrently geishas there was no payment of p d there was any any agreement collusion because it benefited the lawyers the claimants lawyers by increased attorney fees get multiple employers involved many return to work in a light duty capacity temporary partial disability liability was doing knowing then and then once his condition was p s in october permanent disability liability was doing they never paid those benefits and yet he appears before this court