morning everyone welcome to the court we have before a panel b this morning we have four argued cases before panel  plus we have two submitted cases and that's a different panel the first case than we'll be hearing war given in the small orning is number zero five dash five one zero five porter versus the united states mr schwartz i just want to confirm what is reflected here on my list er there's a lot of risk for number of males in this case but let me start with you because what better panel would better judges to decide or does distinguish schank own and  when they published their material in the federal register company in the regulation said that there must be distress must pre sell in or was caused by a traumatic injury that of whether i mean that the main concern appears to have been with respect to the back injuries are correct that's correct but then that but there was some issue about really how severe this was given the circumstances of the incident the the automobile collision one car twenty miles an hour another car five or whatever low speed and then just supporting the hospital with a thumb injury so there was some question wasn't there i mean i guess what i'm saying is i recall the the the he aring officer at the bureau of justice assistance determined that this was not a traumatic injury and it seemed to me at least on the face of it and looking at the record that one could make a pretty good argument for the proposition  recall as well that when he made that finding the woods without the second expert there were three x medical experts on which the agency were lined all three of them agreed that in fact he had that injury now there was earlier that you point out i mistyped houses and we pointed to our papers precise salie how he went to the hospital and he complained of his finger hurting anybody else complained of a back injury and they just ignored that there's no hospital like north and it and it came somewhat later and it's pointed out but of course with the gremlin in your system you're never sure why that happened you have a lot of veterans cases in those cases just remarkable with veterans are able to do soldiers very able to do for a short period of time but that's not what i thought your argument was that  there was an error here in the fact finding because the wrong standard was off and that the hearing officer said that p t s d the can't be considered  responding to judge shows question relating to is it in his or not substantial evidence in the record which suggests that he really never had the initial traumatic injury and i think it's unquestioned among the three medical experts that he had that injury sheldan the film he was operated on operated on it if you look at the opinions all three of which are there they make the assumption that in fact that it's true that he had this condition so i don't i don't think there's anything in the record would suggest to the contrary except in much berlinger medical opinion would which in essence is explained away and as you know and it is central evidence test it takes on most nothing  it should be that because of the insubstantial evidence just for all practical purposes because anything in the record which allows him to make that to say or to rely upon some kind of evidence is sufficient but in this case the evidence w officer say there was no traumatic injury no we know he says he said in fact that if it's stress or strain it doesn't matter he didn't reach the issue that you just ratings he merely said strain here it's part of part of this bill because it's not covered by the statute that raises a legal question right on the other hand if he said considering stress strain i don't even considering report well for the director of corporate america well that's correct but he also didn't address the issue and he's required on appeal to address all the issues that are raised when when we asked him to review it and to address some rebuttal but the evidence was presented and he declined to address it will be hearing officers found that his finding was that the disability did not prevent mr porter from all three medical experts which talked about post traumatic stress syndrome so isn't the issue really was to source the severity of the injury i mean there was some injury here and what really the hearing officer found was it was affirmed by the by the director and then a firm firm by the director that there was not a there was not an injury of such trauma that rises to the level of entitlement to recovery under the  my dad finding when he was required to do was not make an independent factual finding he was required to look at the medical records and based upon those medical report which was which was the evidence in the record based on those medical reports make a determination and if none of the medical reports reached a conclusion that he reached then in fact there's a concern or if it's a violation of the a p a or in the decisions of other members of the i don't have that standard which is almost no review at all well under rule fifty six when there is a case that was published by this court i can april two thousand far dealing with fifty from provide a record an alternative at the davidson and then let the court decided on the papers this is this is an administrative agency review and the courts are very careful to ensure that it ministr we'll hear from the government now m has the individual come within the statute under those circumstances as you've laid out your honor yes they would come under the act if the p t s d was shown to be the result of a traumatic injury that pursuant to the act and the p t s d diagnosis was laid out to be permanently and totally disabling ok and did did the hearing officer hear reject the client because he took a different view of the statute than you just did not at all your honor i don't believe there was any evidence in the record submitted by a psychiatrist or her psychological expert that mr porter in fact suffered from post traumatic stress disorder and even if there were references in the record by doctor saying oh this other doctor has said that he has p t s d there was nothing in the record indicating that it was permanent total there were references to a diagnosis back in one thousand nine hundred two but you know this is the hearing officer in was in believe two thousand so eight years later nine years later there was no indication that he was still suffering from post traumatic stress disorder what the cause of the post traumatic stress disorder was in fact there's a reference in the record at one thirty five saying that some incident at a target store had triggered mr porter's p t s d and caused him to be readmitted for her a counseling was the precipitating factor in the patient's need for admission to sibley memorial hospital and that was incorrect i don't believe but i think we're talking past each other on to the statutory grounds that was stated was not if the hearing officer said i am not going to reach the question of whether there was p t d that would be in error but i don't believe that's what the hearing officer found i think the hearing officer said sort of the big us because he did say that he believed the hearing officer said that stress and strain are not compensable under the i think we're also the hearing officers opinion was actually reviewed by the head of the bureau of justice assistance the final agency decision was in the record  to twenty eight to twenty yes you're correct for your own good but he adopts the finding of fact we're hearing all right so it's not as though we only come to the directors  he made findings regarding whether or not mr porter was a camper was a public safety officer and from mr porter was not a public safety officer the b j a director so i'm not going to reach that issue i'm just going to decide this on the question of whether or not mr porter was completely and totally disabled experts howard university hospital the mr porter was not completely and totally disabled within the meaning of the area the director of p j properly concluded i and finally we just talked about the reasonable doubt standard the statute provides that or i'm sorry the implementing regulation provides that reasonable doubt arising from the circumstances of the officers death or disability should be resolved in favor of payment and mr porter seeks to include not only the circumstances that you know that the line of duty connection which that applies to but also seeks to him reasonable doubt as to whether or not mr p is completely and totally disabled and we don't believe that's a proper reading the regulation clearly the medical evidence indicates mr porter was not completely and totally disabled and although the b j director found that the line of duty connection was tenuous at best they did him the benefit of the doubt and find that his injuries were connected to his line of duty injury if you have no further questions your honor one question regarding the standard review to sixteen talks about it a little bit later but doesn't really resolve it so so he acknowledges its existence but doesn't apply it in terms of the disability then the words he says he said he doesn't say specifically in my view post traumatic stress syndrome does not resell or just not result in a disability what he does put it but let me also apologize again for not having dressed banter and if the court would like supplementary briefing on a matter i'm sure that the government i would be pleased to submit it oh i don't i don't think that's