in violation of a safety there are three issues and let me start with the section seven the department of labor independent because i frankly have sort of fascinated by it in particular the directors brief the director acknowledges that the legislative history is clear that the congress said they expected the to use the section seventy i am me to help resolve cases that they expected to follow the national commission standard the national commission standard which the director admits is that basically that the i am me as opinion should be accepted subject only to the equivalent of an appellate review which on the law i'm sure i could  substantial evidence which is what a reasonable man is there any reasonable mind that would accept that person's opinion this issue is not unlike what this court decided in vi t versus edwards with attorney fees for years judges ignored the statutory requirement that attorney fees can be awarded if employer didn't reject the partner labor recommendation the benefits are you board three years stamped those decision saying yep that's absolutely correct doesn't matter what the statute says and of course this court and b i t vs edward said no actually statute meant mean something we're going to follow it the fifth and sixth circuit did the same thing so here we are again the director doesn't contest what the legislative history says the directors argument is seems to be twofold one is they said the judge actually followed the appellate review standard but i don't know how serious i can be about that because if you read the opinion it's pretty clear he didn't follow a substantial evidence of an independent medical examiner particularly when those findings sound more like a legal conclusion than a medical diagnosis well i'm not sure that sounds like pretty pretty liberal all you have to do is show that the employer then and provide a safe workplace if you have someone who's injured how hard is that to show but i do agree with your honor it is a negligent standard under feel of but not wasn't what the supreme court's is not well not much of a cap so you use a maximum compensation right which is sixty two thousand dollars a year currently for life so i mean the reality is most of our cases there are half a million million dollar cases because you take a person's life expectancy the maximum comp right and most particularly per the p t s d cases there's a lot of those on the fence base act they're almost all over a million dollars so you're right there is some trade off that that is true i can't deny that based on capping damages to the extent that you're saying i am i saying i want you to grab something the answer is yes but with others like you guys the court has done it before well so really it's more than just actually it's actually the law i mean we are we have we have said that we only impose exceptions to longshoremen to the last time exactly that are there are a numerated in the statu contributes which is in the statute but that it also be manifest that manifest requirement is nowhere in the statute the director actually cites the merino and case that says even though you may have a mental condition due to a legitimate personal action those are going to be compensable well that's an exception that the courts and the board itself has created i think it's a good exception don't get me wrong but if i have personnel action that causes me to become stressed and therefore have depression how is that not a work injury while the court said well it is a work injury but we think as a matter of policy we're not going to allow a recovery for that so the last employer will is another one which is not in the statute but the courts have said he when we have multiple exposures to something we're going to say the last employer is liable it's not in the statute so i think the reality is there's there's always going to be some things and the courts have the latitude interpret in the statute to say ok what does it really mean i mean think about what we have to work with in the beginning with all the statute says is this the statute covers an accidental injury you know if you think about it ok witnessing something upsetting me that's an accidental injury i'm pretty sure when the statute was passed and i think twenty seven congress had absolutely no idea when they said accidental injury that they would think what if we are  years later that was going to encompass witnessing something but i mean i think you are correct i'm asking you to follow what the supreme court did but i'm also asked me to follow other exceptions and the score is done not the least of which is marino in preventer which the director thinks there are good ideas and somehow they think is inconsistent so if we're not going to allow compensation for legitimate personnel action and in personnel and actions which cause depression then is that really that much different than say look we're also not going to allow unlimited claims for everybody who witnesses something bad i mean think about taking it to its extreme right i mean everything is upset i mean you know we all hear about the newtown shootings we hear about this shootings in california i mean it's upsetting but isn't that a bit of an overstatement because what we are basing it on is not the fact that someone witnessed something upsetting but that there are diagnoses of medical consequences of that that it's not based on the on the mere fact of the observation it's based on the fact that there are medical diagnoses of stress related to that observation so i know it's not quite as limited as your question w pass i think it is i mean if we're talking about something where you have to test for an x ray shows a broken bone sure we can control that and you should have medical diagnoses of post traumatic stress disorder psychiatry if you look at and it also goes to the whole thing of treating doctor i mean treating doctors come in and so one is that they oftentimes are picked by the attorney oftentimes well in this case they're worried about getting paid because if they don't if not compensable and i can be paid the worried about  saying the wrong thing upsetting the claim and then sued for malpractise it in contrast and that's why frankly i was trying to emphasize a section seventy and this was a smart thing by congress congress said look let's pick something totally separate have the department of labor pick the doctor and then you know what follow the thing except appellate review and i understand the judges have great discretion but they have to follow the rules right in this judge and follow the rule because if the rule was the director meant in the lesson of history is the judge should have reviewed dr mann times opinion based on substantial evidence test he clearly didn't do that in fact he basically engage in speculation he criticized the doctor for using a standard psychological test now no what no doctor no there's no evidence in this record that said using that test was wrong and that's like saying well i'm not going to take an orthopedist opinion he relied on an m r i and then secondly he the judge says well he said half the people have seen bad things there's no evidence in the record to contradict that even their own doctor said well most people see those bad things don't get post traumatic stress syndrome which are dr mann time agreed with so the two things  certified forensic psychiatrist associate clinical professor we're in twenty five publications but most importantly i have somebody very easily to look to who thought it was a reasonable decision and that's the united states government district director the united states government  weight but also i would say that it's a big assumption why would you ask for a seventy evaluation if you were going to give us some extra weight i mean i mean even just think of it from a reasonable point of view if someone is independent who review something how can you not give extra weight to the fact that they're independent in addition the director makes of a strange argument as well you're like you're allowed to ask for another a second opinion so therefore that shows it wasn't meant to give anyway i'd say just the opposite because  statue in seventy says don't say you get a second opinion from anybody they said you can only ask for a second opinion from somebody selected by the secretary for uber so to me that means even more emphasis was given that the only way to get around this  get and the contradictory opinion from another doctor picked by the department of labor i mean this is this is frankly a tool that is a wonderful tool to avoid litigation you're saying ok you hire your expert  the the claimant employer hires their expert and the fighting at it and the judge is sitting there well who do i believe in the statute says we've got a good idea or let's have a department of labor somebody neutral pick someone to give an opinion particularly when i mean  judge are always it's always hard to evaluate right because you're looking at medical questions we don't have medical degrees but so we're saying what's the department of labor have someone who's totally neutral and have that be a doctor who makes a recommendation system set up we had an informal conference we had a hearing before the l g a we had discovery left and right we had all kinds of evidence coming in and the system worked and here we are today with a decision all within the guidelines of our system it was it was a great case now the united states is the greatest seafaring nation ever devised that is we have aircraft carriers we have merchant marine boats we have longshoremen working the docks we have cranes that go up to the sky the united states really has a national security interest relies on international trade our dealings with china with japan with germany are all very very good generally speaking on a macro level i think we can argue that with trading partners we are not going to war and so i once again refer then or relate back to the national security interests that we have relative to our treatment of dock workers so for example televisions that we watch for example i was watching clemson in carolina over the weekend and i stayed up late enough to watch stanford and university of southern california but our t v s are coming in from the far east they are increasing our quality of life and as a result of that we are less likely to have any sort of fight with our neighbors in the pacific so the united states congress back in the seventy's developed the i guess  the rules of engagement regarding the long sure workers in the harbor workers and so we have the longshore and harbor workers compensation act and the public policy of congress at that time and to this date to me appears to be well we have a major national security interest at stake so we want to be as fair as we can to our longshoremen and our harbor workers and so the system as i indicated earlier i believe has been set up to accomplish that and so as you guys probably know the workers are paid very handsomely they are unionized they are well trained in fact in order to get a job on the docks is very very difficult while you and i are practicing law in a court or i'm practicing law and you guys are doing what you're doing in february and we're inside the dock workers are albert at midnight with the ships coming in and it's raining it's cold and life is very difficult in my brief i argue that the work on the docks is inherently dangerous i have been born in norfolk i live in suffolk now live over look outside my house i'm lucky enough to overlook  are docked and are unloaded and we see the trains that are taking the containerized cargo from the docks out to our fellow citizens it is a very very big start out by saying because of the news we should discount that but that's why they're there you can't discount about it for the very reason that chosen can you i well i'm not going to discount it just because he's he's independent but what happens is for example you deal with a fracture where you could have a treating physician that's dealing with a fracture for months and months but you can have an independent medical exam look at that fracture and look at the x rays here we have a disease it is a disease it's a mental a disease of the brain and in this particular instance having independent people so called independent people who really don't even treat these people who are just seeing them for the first time they're really treating them almost like a commodity and we just don't have that in the disease of the brain i think we have to have more of a structured engagement between the psychiatry esther psychologist died and the patient so and so i do think we had the right to or the a o j had the right to say this was just a one time shot secondly as judge don't has asked you know that there was this personality test i don't do a lot of this kind of work but what happened was that the facts were revealed that mr jackson when he and met with dr mann time for an hour or two whatever it was then mr jackson was called back a couple days later and asked to take some sort of multiple person well not multiple personality tests but whatever d is the number one determination so it's really kind of interesting so therefore dr mans i might say x y and z and his sort of subjective report but but the actual objective report discuss what reason should we discount that well i do think that generally what was happening in his particular situation is that dr mann time was retiring and that this was just the end of his career and you know p t s d is well thanks a lot all right ms early out that that proposition is not in the statute and it's also not in the legislative history the legislative history refers to the commission's findings back in one thousand i think it was in the one nine hundred sixty s when that came out and but the legislative history did not adopt the standard up review that the national commission set forth that substantial evidence review at that the legislative history did not specifically adopt that is the independent medical examiner is that testimony considered on par with any other medical testimony in the record yes your honor when we when the l j reviews the case he  the independent medical examiner just like he does any other position you look to whether the the the logic of the physicians conclusions whether it's supported by the test that he conducted and then also look at it in light of the ever other evidence in the record documentation he saw that it was based on a computer generated test that had been evaluated by couldn't clinician he also saw that it was based in large part on this doctor's assumption that half the population has seen a horrible accidents like this accident issue and that they that people generally don't well oppose static stress and that's just an unsupported assumption on the doctor's opinion and also he looked at the fact that this doctor's opinion was contradicted by practically every other expert in the record including physicians that have been treating mr jackson for a long time so he was perfectly when within his rights to just not accept this independent medical examiners and and then with regard to the main issue in th case which is whether this court should adopt a zone of danger test for the compensation of psychological injuries well there's basically four reasons why the court shouldn't and the the number one reason is that the plain language of the statute doesn't require it  t the plain rank language does not distinguish between physical and psychological injuries they broadly cover any injuries arising out of an in connection with the workplace accident and that's what happened here secondly courts that have been interpreted this provision have not required a zone of danger yes for a long story act cases compensating psychological injury and thirdly to impose such a test would be to tamper with the congressional scheme employer's argument that god shall should be persuasive precedent well that fact has to judge what alluded to in that case itself is not a it's a feeler case which is distinguished from a worker's compensation case like the longshore act and the policy reasons unstated by the supreme court and god shall just have no relevance in the longer world and we have limited and predictable liability for employers there hasn't been any flood of trivial suits in these and our statute is now it's a worker's compensation scheme apropos of nothing in particular i want to talk workers comp and it was always easy to fool the students by throwing in a negligent concept and they always got distracted but perhaps that's what we have here but if there's no further questions that's basically all i have to say it's morning as well first in a follow up in terms of the zone of danger you understand that to be best require only when te i think it's the latter situation it's it's there i think and got shot by they were looking at trying to limit an employer's liability to to that zone of danger so it yeah they didn't want to claim to you would say that you still could make a claim right right there so there's no there's no problem attenuation being too far away from the scene it's it's moving towards it i mean you have to look to whether they enter a rose out of or in the course of the employment and i think the fact finder would have to to evaluate whether hearing about it and lunchroom was in the course of the employers and employees and point maybe maybe the absolutely yeah he's the prime after here right but even in the hypothetical though the link for there's the ultimate question is whether there's an  injury so there still has there has to be some finding of injury absolutely he would have to support his claim with medical evidence this is right right right but but that's no different than hearing from a day out it happened the day i was off and i come in because people the impact of this occurs because of that that normally because of the emotional profile a person has you could be over cation for a month and you come back with your best friend was tragically injured like did and you can have a legitimate case so it so that's what i'm saying is it's it's no for geographical aspect at all if you don't have some aspect so it's we're not somewhere that you can make a legitimate claim that's a different matter that's totally the medical zone of danger i understand what the employer is trying to introduce is if you don't have something like this where is the n i mean because there's no end to what a person's as you well know people can have delayed reaction something happened five years ago we find those in terms of child abuse and things that people adults and relate back when they were sexual abuse and they were five years old and they have incredible legitimate problems so if the related temporarily no geographically no no no in the course mom what is the limitation if we don't look at some sense that but i think in this case clinically he's right there he broadcast it but other you have to have the medical evidence of injury and but you also have to have arising out of during the course of and in the course up right right and with that and i honestly  and the answer judges duncans criticism which is true i about of psychiatrists it's not me alone that was one of the factors the supreme court had a problems with as they said look not only is that unlimited because anybody who could witness it or as you to point out who said i found out about it when i came back to work which would make it arising out of employment we're right there's no knowledge is no limit but we're dealing with something for which there's no way to really tell and that's because psychiatry can give a label to anything and all you have to say is i'm depressed i don't feel well and they've got a term for and there's no x ray there's no way to test it if i go back to your criticism of  said adopting the commission standard which is an appellate review and i don't see how you can say what the judge did in this case is an appellate review because he said i'm not giving in any extra way and i'm guessing that's totally irrational think about it congress sets up a provision to have somebody tom totally independent review something and you're saying somebody is totally independent that's not going to be a factor but it's not if it's not this then what's your basis for saying that it should be given extra weight beyond that accorded the other expert testimony in the reasons one is common sense would tell us you give something extra weight if it's somebody independent who has no said it says in the commission report says exactly what i said it said thank you ok so but let me address dr mentions opinion because it wasn't a simple opinion he wasn't he just said i you know what i'm about to retire screw it let's screw this master's degree said hey i think he's a little depressed i'll be fine then this will doctor family doctor dr stahl says he had to be able to go back to work and four to six weeks so he's saying he should have been the worst then and yet all the reports of the doctor was he wasn't bad off at all secondly he said p t s d gets worse over time i mean sorry gets better over time and yet for this claim it's gotten worse over time and then thirty said one thing the standard and everybody  they don't want to talk about the incident because it's traumatic and he said this guy has no trouble talking about the incident and then thirty said this guy's not concerned that the treatment isn't working he said i don't have all my patients if they're not getting better they're go pissed and they're going to tell me that this guy is like i don't even know what medication i'm on i don't care that i'm not getting better and then talking about the test results in this isn't it of the the appendix what he said was the problem with the test results is he lived everything up and so actually p t s d was not first if you look at page i'm sorry one sixty one it was a time between schizophrenia in post traumatic stress disorder although it was about a dozen other things that he also let it up and what dr manchild said is that can't be these these are conditions that have nothing in common schizo phrenic don't have anything in common with a post traumatic stress syndrome so for you to light up the test for all these things tells me there's something wrong so in the judge didn't say that that that dot that doctor mentioned misinterpreted that is results he what the doc the judge said was the judge manchild use the test result without explaining why he did that well no one criticized him for using a test result in fact it makes sense psychiatrists use like psychological testing so the judge criticize him