thousand now if you look at the evidence in a timeline fashion here the very first piece of evidence that has developed in this claim is a chest film that was read it was dated january twenty sixth two thousand and four the commission indicated when this condition may have occurred and it was not until the tissue was examined by doctors on which occurred in january two thousand and six nearly five years after mr burke left the mine that he set forth his opinion that he would have had th time that was dr alexander's interpretation of the film there is also an interpretation of that film in the record from the original facility where they took a film and the reading by that position was no active lung disease society guidelines first on functions that he didn't use the nih off film to look at a film and you still wanted to say you know what i think dr kahn was the more credible you certainly could but if you're going to fight that apple you need to eat the entire apple and what the commission never addressed was the fact that dr kahn also testified in his opinion that if mr bird had whole workers in a macone sis and have emphysema and had shortness of breath and all of the other findings that dr found in january two thousand and six and they were related to coal dust then those same symptoms that same everything would still be seen six months later a page dr westerfield's exam was occupational to the fact that you have to provide notice to the employer as soon as practicable after those physicians never diagnosed any occupational disease over that entire thirty eight year process and those records are in the records so even have we have tamed those records there was no evidence that mr byrd moving back to the notice issue there is no definite time period and that and it becomes as soon as practicable in this case of attrition or is required to prove that he say will spend two years after he left the mine based on the commission's decision they're saying he was disabled when he left the mine now in this case the case was filed in february of two thousand and four if he was disabled when he left the mine in march of two thousand and one it's very difficult to see how as soon as meet section one ad and section sixty of the occupational the fact if you have a notice requirement that was being allowed to be filed over almost three years after someone left the mine and if you want to take  records that did not establish any occupational dates whatsoever and also taking into consideration the well known scientific principle that whole first name of tonio says is a permanent and progressive disease so if he really had it anyone and he had it in two thousand and four there was no change on that and the levels are the same but yet when we have pulmonary function sadies one dime in january of zero six and one down in june  and the court step develop the way to do that the question is never when and why did he leave mine the question is did he go back there for the day to say it is the day he left when the existence of the disease is coupled with unsuccessfully argued that the two year limit of one out was unconstitutional and conflict with a five year statute of limitations for poll workers movement or yours we didn't prevail in that the court ruled that each section had a purpose and they could live kentucky you don't have a kentucky plan this is happened more than one minor this may or may not be a perfect way to deal with young crude which is what we have a black one but it's the one we out orders no it is consistent fish required to make his proof of the same within the want to hear and the fish twenty nine is brief it's his quote if employee must provide proof of the say within two years it is dated last exposure there is no reason why i wouldn't he honest with regard to the initial statements by opposing counsel and television company has never said that the filing of the claim was not notice in fact it was the only notice that was ever provided to solve secondly with transcript and thirdly the assumed native reading we would assume the console would have received would have obtained a negative reading of that test but they're still going to rely on dr alexander so no matter who we got to read that film and they read it as negative is going to hold no weight whatsoever to this arbitrator or this commission i think there's a problem with that i think the qualifications of the person receiving the film should matter and it shouldn't be a blanket well we been one of the original series or from nyasha or you know i don't know apparently it didn't matter what qualifications our people were it wasn't going to make a difference to that arbitrator or to the commission basically you know  it was disabled we left the mine because he said the clock starts when they leave the mine i don't see that in the statute anywhere either but even with that sort of situation why would you wait three years i mean when if you're going to say well he didn't know he was disabled until the chest films right in two thousand and four he wasn't disabled in two thousand and one that i mean the whole statute is based on when the date of disablement is in this case the arbitrator and porting to the commission was the day mr burke left the mine if that is the case then we don't get notice for three years and the and that is the soon as practicable i don't think so now when you start looking at repetitive trauma claims that are covered under the worker's compensation act it's still have to abide by the forty five day rule there is no reason if you have to prove that you're disabled within two years that your notice should not come shortly thereafter and in this case it did not and if you want to take dr alexander clearly they can't mr byrne apparently did it for twenty one years and you know there was no change if you look at petitioners exhibit number two which has the ilo classification by dr alexander they are identical regard to the