good morning your honor roy axelrod on behalf of petitioner national steel and shipbuilding company your honour's with all due respect i believe the briefs adequately advised the court of the issues and the law presented however i would like to emphasize if i may that a key issue in this case is whether a summary conclusion from a doctor which ignores uncontradicted evidence in the record constitutes substantial evidence in the record considered as a whole in this case that on an contradicted evidence establishes that claimants work at southwest marine swim as a rigger for approximately eight months required daily and repeated kneeling swatting and climbing and frequent walking and standing but didn't documents sweeney say in his first two report in indicates he knew the kind of work that was being done there so why should that just be ignored your honor with all due respect i would submit that when that's not big nord but rather dr mcsweeney acknowledged  at trial that his initial exam focused on the left shoulder the a l j criticize documents we need for in effect indicating that dr mcsweeney should have been aware of  again as he indicated at trial he was focusing on the left shoulder and in fact you're on it with all due respect dr davidson acknowledged in his deposition that when he initially examined the claimant he focused on the left mcsweeney in his initial opinion report fails to take that into account and basically ignores that so the question with all due respect is can a summary conclusion which ignores an contradicted diktat evidence that swatting the elling climbing was involved and that those activities aggravate and make a simple minister here more complex which in turn acquires more removal of the miniscule which in turn he said just basically living could do that and there's no medical evidence to show that that is exactly is what happened i don't think anybody here testified other than in response to hypothetical questions could this have happened is that the type of thing that could happen yes but nobody screwed say to a medical certainty that that is in fact what happened davidson alludes to it but then later retracts and says there's no medical evidence that that's what happened if i may your honor guy quote from the southern mental excerpt of full record page one forty again just to essentially retreat from that position and says there's no medical evidence here that that's in fact what happened and so then we wind up with the situation i think you may be right both experts are kind of all over the landscape  frankly applied an incorrect legal standard issue isn't whether there was a significant aggravation as found by the judge it would be anomalous to conclude that one day one day of light duty work aggravates degenerative knee as in do you have a time allocation of a few minutes or on average my name is jeff which represent the claimant and if i may just address it more from an outsider's perspective if you will simply because the only issue at stake for the claimant in this is side decide which employer would be responsible if in fact i do not decide which employer may accept the responsibility we have one employer are going against the other as to who is going provide medical treatment frame to the last paragraph in the collated decision the l j correctly applied the last responsible employer doctrine to the facts of this case and his findings that working conditions existed in general that could have aggravated collate his injury is supported by substantial evidence problem as we also have mcsweeney's testimony to times that he didn't he states unequivocally that he didn't and in price relied on knew what the work was that s w m so i'm not sure i'd agree with you if it was basically uncertain what happened where in there was no a contradictory testimony and someone said if we have that last day rule that that would be causation however in order to make a more clear line and for employers to be able to more easily it determine their liability we don't want to put more emphasis on the natural progression i think than we do on could have in other words could did the last employer expose the claimant to injury of stimuli in this case the answer is yes in response to that injury stimuli have contributed or accelerated the answer is the could have done it but there's no medical evidence that he did and if that were the testimony that it didn't happen if they're really not saying the fact that it could have would override that well if we look at the clear language of clay i think yes the answer is yes however if we are if we want to make a clear or lying i think when we look at it it has to we can't just say for a doctor say well there's no evidence like dr  evidence that the employment southwest marine did well there's no evidence that it didn't and we have that kind of a situation where in this case we have the only m r i the only determining factor of a torment has occurred after the employment south west mornin there is no way by the facts of this case we can determine that the injury actually occurred at nasco because dr davidson's of all the swelling and other things that occurred show the torments because if you read his deposition more clearly states that's what would not naturally  wifes and so with his own testimony it's a quizzical at best in the rest of the testimony but the clearest testimony that he gives is what mr axelrod quoted to this court just a few moments ago and with that test of could have it makes a much clearer lying for everyone to make a determination and because of public policy in trying to assign things to the last responsible employer so that there is less litigation so the climate is not stuck in the middle between two employers he  not denied medical treatment for a long time i think we have to lean more heavily towards the last responsible or even in the language played it if it could have and with that being the test it makes everyone that a little more easy in their position thank you  explains it is the men it's repair surgery which is the really precipitating factor on the generative arthritis and that clearly that procedure was done as a result of the injury and i'm also surprised to hear swelling he has symptoms on the job at southwest he's doing a job that even common sense would say you're going to aggravate this prior injury by squatting lifting climbing all the activities he did at southwest you have good aggravate given that harsh rule stock not really because in the collator and foundation constructor cases when they stated the two injury rule they did not include the word permanent when this court in the price decision restated the rule inserted the word permanent in front of the word disability which would seemingly alleviate some of the harshness when all you have our ups and downs of symptoms that you not chain into the underlying condition you're going to avoid the very type of litigation that would delay benefits the injured worker by in fact you're creating fights among the employers if you're allowing them to fight over temporary increases ups and downs in the symptoms when the medical evidence is it not a fact permanently the underlying condition causing the disability and that was ultimately we had documents many saying it did after he reviewed the notes of others  seated to and certainly suggest to the tear would have increased which would have had other impacts on the knee and indeed on the earth really condition and that was to be expected with the kind of work in the nature of the twisting that was done it is wm unfortunately dr davidson just finished answering a long string of hypothetical questions and truly i believe he wasn't even aware that mr testimony was a major issue of this process what we're talking about is the job that judge culver had to do and sorting out the facts the way the evidence the convincing force and i think the whole exercise here is to try to take that away from him and that is not this court's job perhaps of  unequivocally it was a specific injury nasco which was the sole cause it was only when he was later on an expert witness at trial being a retained expert testified they suddenly changed this testimony and he changed it based solely on the rule as stated in price is that you need to you need to look for a permanent disability that's been increased not temporary fluctuations and symptoms because if that is not clarified if that is not made clear  over did the right thing in this case you're only going to further defeat the very policy behind last responsible employer rule by increasing the incentive employers to fight over trying to dump it off on to the last guy simply because he worked there his pain went up i'm off the hook and we're seeing a lot of that already i think it needs to be made clear that when the trial judge as a matter of fact follows the rule and decide was it a natural progression or was it a permanent permanent but that was not established as a matter of fact dr davidson conceded hypothetically it could have happened he was asked a lot of hypothetical questions that he answered to the best visibility but the facts are that all he se is increase in symptoms due to increased activity which is to be expected when you've got a torn meniscus in there that hasn't been treated that doesn't mean you've really affected the torn meniscus and then it was the surgery on the torn meniscus that was really the distributing factor in making the degenerative arthritis a disabling condition leading to knee replacement surgery and i really don't think that it's going to complicate anything if we're going to be second just second guessing the trial judges all the time on their factual determinations that then lead to their application of the price to injury rule thank you very much ye i mean your honor thank you two points a conclusion as determined by the administrative law judge in this case that this women employment did not aggravate the claimants right knee condition not only can defies common sense it's inherently incredible and patently unreasonable and that is the standard that this court uses pursuant to a d r o secondly your honor under this court's ruling in a mist special deference is in fact do the opinion of the