and when i go over the problems with the commission decision one word keeps coming into my mind why why didn't the commission just follow the plain meaning of the remit i mean is the case revolving around a single  time when it worked went back down the commission knew by the second time it got back to four even if the vision would win it would be a feared victory the victory could end up in a loss in terms of time and money and also by sending it back up in the law related as maria lated i've had it your fifth relations on my people have you're laying in bed with a heart rate of one hundred thirty they help you sit up or close one hundred sixty and they're all over you short of breath because if you are you've got a go back to work so i think that that is a red herring and it was wrong and so the the i believe that the commission was against the peck to them but that really was the focus in that case because we had some competing medical thing about what caused the mild destruction this gentleman have been and i think at the time that really that opinion this court did not say that this man had this ability to do that this court was to head to of course said that it was time as well and the definition of disability is actually a term of art when it comes to occupational decent pain section one and it's stated in the alternative we need not go into that now but it also is stated that i within two years of the date of plastics poachers there was there has not been yet a factual finding of up to this commission decision on remains and in that regard they were instructed to determine whether disability was present not only then must they determine that but they must determine not well whether it's timely because that's a condition preceding and just a sense and i'd like to focus on the question you had about coincident with his heart disease later in two thousand and two he did this well it was actually coincident with his mild early on part in this case the expert or the claimant here the common cause in an older population but a mediately behind that is heart disease and this gentleman had heart disease the determination that he has c cannot be made based upon a symptom of shortness of breath alone for the very reason that it can be due to many different things including heart disease with this which is gentleman head so january two thousand and six they agree with that but it was deferred in january two thousand by spirometry with the cat we got and it's not important here because it's water under the bridge now that testing was a questionable spirometry that allowed dr house are to say that he believed this gentleman suffered from c e o it wasn't the shortness of breath and the reason why i say that is i asked him an open ended question which may not have been a good idea but i did and i asked him do you know what this gentleman is homeowner a function was at any other time than on that day and he said no now i think he could have said yes i think that back when he was having shortness of breath in one thousand nine hundred two thousand and two that was evidence of an impairment who has the heart disease that he has he pasted on that minimal abnormal finding and spirometry as you say just hits and two and two years two months later when did within that two years when i asked his expert if he could say that he had it at any time other than then and he could not it's now given he doesn't have that and so in regard to this who was source discussion about the c t scan and the emphysema this gentleman had a significant smoking history and that was the subject of the last opinion but what was significant about that c t scan and i know that you all know this is that the hallmark for black ones oh man will that on an x ray is seen as a novel and there weren't any in that field of empathy that was there i got off on a tangent just as hofmann but i would honestly and i apologize i would have to go back to look and see if he was asked is his was present within two years of the day this gentleman's last exposure until the commission made that determination in their decision it didn't you know remain and for the court now to say that there was you're taking another now factual issue away from michigan this case and i'd ask you affirm the mission decision not