causal connection between the may twenty five two thousand and eleven occurrence and his need or subsequent surgery is against the man in this way that the evidence and by the law we have been before the same party's national  and mr smith before on a injury that he sustained in two thousand and eight prior to two thousand and eighteen he had an injury that fisher lumber in two thousand and six we raise the issue if if you remember read the fire decision in two thousand and six you work for a different respondent was diagnosed with a herniated disc and was scheduled to have surgery one day after the first national freight accident on december or we appeared before you and argued that volvo lied in that case you disagreed with our position that both who applied in the case because the nature of the surgery was changed from a micro sec to me to a fusion in between that time actually your decision was the the initial national freight injury was december five by the time we got to the appellate court the first time your decision was in june of two thousand and thirteen prior to us getting there mr smith had this occurrence on may twenty five two thousand the lap and in this occurrence he was driving this truck a tornado struck and caused his truck to turn over in two thousand and ten dr kennedy who's the treating care he stays the night i think in a local hotel another truck driver for him and i drives him back to his location and he works full duty on restricted until june thirteenth severe we took dr kennedy's deposition and dr kennedy testified that none of the findings neurologically were different they were same damn findings on may of may nineteenth six days prior to this x he testified that that he thought his symptoms were worse but that your position that he only needs to show that it was a causative factor in terms of when you have a prior condition of bill bean is incorrect accident which aggravates a condition of care ready we can buy in time global sad for an employer to relieve the liability by virtue of an intervening cause the intervening cause must completely break the causal connection chain between the original injury and the suing condition and if by is not saying that this person shouldn't be entitle to the surgery you seek what in by is saying is we should be responsible clearly in this case he was still treating and prior to this case he was diagnosed with a severe spinal stenosis having progressive pain that was controlled by their conduct medication and saying we're not going to pick up the surgery but we're going to pick up we what we think that the proper way to pick up the surgery is under the first case because this intervening accident then completely break the chain that there has to be something more that intervening accident doesn't completely break the chain then you're still responsible for them on the first and that's our argument and when you look at the case life think it's clear in a few vocal and you used in in the initial decision the but for argument and in this case dr kennedy made it clear on may nineteenth that his problems with spinal stenosis and but for the original injury that occurred in december of two thousand and eight he would have had the surgery which dr kennedy says caused the spinal stenosis and is the basis for the current surgery now so but for the fact that he ha condition that's not part of the record but yes the question ok he is heart condition is clear and he's now able to have the surgery for the spinal stenosis and we're not going to stand in the way of him having the surgery but we think under the case law the clearly belongs under the samberg of two thousand and eight because the injury didn't break the causal connection and then you apply valvo the four but for the fact that he had the original injury what os he would have had the first surgery and the first surgery what was because of the spinal stenosis and the surgery now is for the worsening of the spinal stenosis now dr kennedy did try to put a little distinguishing thing in this set of well he has a herniated disk too but i'm we took his deposition and in counsel's brief page five she set forth i think correctly so and that's and this is why i don't think there's a distinction he testified that that's the gnosis in was in part produced by the discrimination in part ok but it wasn't solely caused by so again he didn't break the caus connection even if it aggravated or in part it in if you remember both though he had a person who had a fusion had three car accidents the fusion was almost solid because of the car accidents he had to go in to get other surgery they went back to the initial condition may nineteenth report in part doesn't the causal connection chain so it goes back to the very first one we're not saying we're not going to pay for the surgery but it should be under that case of we're going to buy a local is good law and all the cause must completely break the causal connection chain between the original work related injury and suing condition in global and she talks about global here it's a bot for analysis and for the fact that he to the point where dr kennedy six days prior to the injury said that he has significant stealths and he hasn't changed the fact that it's significant in a after the injury it's significant before significant now and yet maybe the herniated disc played a part in it but it wasn't the sole cause and under the case law it has to be the sole cause to break that positive connection we should be responsible for the surgery under the far as what i just want to point out looking at i think most of the family we have a study on that was done forty one days prior to this accident and i think significantly looking at that and its side and our brief  on one of the links i plead that i look at some pain down the right leg when he returns to see kennedy in june of two thousand and seven he has the lumbar pain but down both legs recommended no follow up treatments you know after this visit so i think that's that in my mind this is significant and i think that was you know subsequent to this accident you know i think this accident because that as long as say it as long as it is a positive factor i think we've got you know i think we went on on that analysis as long as it's you know as that accident as it is a causative factor then you know it's it comes from two thousand and eleven it showed that the fusions an l three four an l five were solid and complete so i think that that can distinguish as our facts definitely from bocas bogle he was three months for us and they said and vocal that he did not have a solid fusion at that time so i think that helps us distinguish our case from both all of the fact and we're sixteen or eighteen months of surger that's i think that's significant because we've got it's i said we've got a s levels the surgery that he is recommending is not to redo the fusion but for the spin gnosis and dr if the case was clear you have to completely break the causal connection chain and again but for that our first injury in december of two thousand and eight he would have had that fusion surgery which dr kennedy contributed to cause he missed the gnosis which is the surgery that they want intervening accidents because that initial injury put you in a weakened condition caused you to have that fusion and this the gnosis so this just per nation i think is a red herring it's clear that he says only in so i don't think and i believe you gentlemen should find that under vocal that we're still responsible under the first we're not opposing any surgery under that first we should