please the court counsel jim roche would be if the employer will wait on the merits this case is very simple the only real question is whether the workers compensation commissions original decision on november fifth two thousand and seven finding that the defendants injuries did not arise out of and how often does a person have to go up and down the stairs for it to become formative but also i don't believe that's met a lawyer and i believe that's up to the commission to decide and in this case the only evidence that was produced on that issue quantitative risk was that there were two floors under still in the basement and up stairs that there were certain she was in the basement with her boss she testified she generally worked downstairs there were a couple things up there she had a clock and there was a washroom and that's it there's no more more testimony that was offered  walk up and down the stairs the actual testimony what she had to clock in and if you want to use the bathroom running up stairs had to go up there so at least every day to clock him he had to obscure shade of stereo because she went to the bathroom she had to go upstairs right and some other duties as well couple of parts of the office that works there that's it and the burden of proof here is on the pitch or the commission look at the quantity of risk and they decided based on the limited evidence that was presented they decided that the burden of proof to establish that the petitioner's injuries arose i will claim it was not carried by the petitioner all judge taylor did was look at the same facts and substitute his judgment for that of the commission and as we know that you can't do risk issue and correctly there's all kinds of evidence in the weapon establishing that the commission's decision on that issue was correct and why and certainly was not against manifest with the evidence so the bottom line is you've got the call to risk analysis by the commission that i wanted to indicate that there are three reasons why not counties distinguishable as it applies to this case first in knox county on like this case the commission awarded benefits so this court did not find as a matter of carrying a folder that's really the only difference as mine but i would argue that there are all kinds of cases in which you could argue the commission in one way or another that's their purview when they look at facts and that's why we have a manifest weight standard to protect their decisions on those issues as long as there's some evidence they certainly  want the other way on this case and they certainly could have went the other way on max but the bottom line is we have a minute this week standard and the supreme court and or this panel can substitute its decision on those facts for that of the commission i also point out you said there that clearly that increased the risk and what you were talking about there was three three four three inch long knives that were six and a half inches wide and together we over fifty pounds and you still didn't say that as a matter of law can mean something  itself creates a qualitative risk instead it's up to the commission decide that based on the evidence here you have a single file folder the other way that the notts county case distinguishable to follow a little bit i think we are going your honor is that in that case both hands were carrying things so the testimony and the finding of the commission was that the petition was unable to use the handrail because both ends head i assume here the record is very clear that she was holding the folder a left hand and actual testimony is that a right  and you know i will address judge taylor made some mention about the commission claiming some type of design defect in the sand only first of all i don't think that's in the record but i also think that's relevant that the bottom line is she chose what shoes to wear she was wearing shoes her employer there's no evidence an employer told her what to wear and her sandal got caught with a forty minute under the stairs she felt there's just no increased quantitative republic of risk here and we're dealing with a minute this week standard and clearly there's all kinds of evidence supporting the commission's findings in both relative to the qualitative and quantitative findings and therefore the commission's decision of the member fifteen thousand seven should be reinstated because judge taylor's finding it was against memphis where the evidence was incorrect i haven't made month's road which intent in this appeal could not be more clear and more focused were asking this court to do one thing to review the commission's nov fifth two thousand and seven decision to determine whether or not it was against the manifest with the evidence there are all kinds of examples in the record of always intent on that specific issue wrote was original appeal on october sixth of two thousand and nine and judge taylor's decision when this court system properly for being a law to read even mentioned roadways interest in having that decision reviewed after the commission entered its second order consistent with judge taylor's decision ruled we once again confirm this intention by filing a appeal to the circuit who are when judge murray issues decision to support level roadway again  reasons first this discussed roadway could not be clearer what its intent was in this appeal underline the case daryn the issue whether the defendant's injuries arose out of point was not an issue before judge murray sense once judge came issues ruling the only court that had the ability to review that decision is this court and here we are two years and eight months later to have that done finally so to make an argument that somehow something was waiting for the judge mind a judge might could have moved on doesn't it it's just doesn't it's not logical that in this particular case not only did he petitioner have increased risk of going up and down the stairs because her office was in the basement and all the other facilities were upstairs lavatories clocks vending machines and in fact at the high end of her accident she indeed was holding onto the braille her one hand when she was holding work related folders against her chest with the other hand therefore when she tripped for whatever reason you don't need to defect in order many times a day the claim a head traversed the stairs other then she you know had to use the stairs to go up stairs and that much was clear of the debts of dispute was there any testimony as to the frequency of which she had used the stairs in the course of the  at the other facilities that she really had a routine had to use for up stairs but wouldn't it have been relevant in the issue of whether she was exposed to a greater risk than the general public was exposed to the number of times she had to go would n relevant and that it shouldn't be relevant should be known but not necessary because there was evidence at the other facilities were up stairs which he necessarily had to use as part of her point that i am clock the lunch room things of that nature she was taking in the matter of fat work related fall her to a terminal manager in the upper floor responded to one who chose to put her office downstairs and increase their risk of employment thank the only thing in this record establishing how many times she used the stairs that day was was that that she this one time she was going up the way her boss was downstairs this was the terminal manager there's no testimony about this given the for one time she had to bring to the general manager just it's not there's no testimony about how frequently she's the stairs in the bottom line is the law is just one that's why you're no danger to the general public when using the stairs and are also if we probably use the stairs a few times there's got to be testimony about how frequently they use the stairs in order for the petitioner to carry the burden on the issue of whether or not there's an increased quantitative risk and that testimony just isn't in this record in b c even if there were two stories the whole frequently she used the spirit of it would be up to the