a question presented before the court today is when the statute of limitations ran and mr adams this case hoose a man who suffers from coworkers in the  actually diagnosed with something called that is a non occupational disease in fact his c t scan from two thousand and seven was a negative for any kind of occupational lung disease so for looking at two thousand and seven we know at that point in time mr adams  being told by his pulmonary doctor that he does not have coworkers in the county as is and that's exactly what dr alon told him as reflected in the record in two thousand and nine after got mr adams receive a nother letter from nyasha says there's a screening program in place where coworkers are screened by through a program under nyasha requiring coworkers to be screened for x rays and he received chest x ray but it's not an occupational illness and that's a key point here that identify in the mind hankie health administration regulations and that is that these x rays that are taken through these screening programs and this is in says on that page is actually contradicted squarely by the evidence where the doctors were in fact telling him he didn't have it and why do you   st time was a massive conglomeration on mr adams was never met the rambler yes and this massive conglomeration had not been seen before what had been seen before were things mimicked other illnesses and in fact because it mimicked other illnesses the that mr adams had been told he didn't have you macone oh says he bought a lawsuit at the time he would have been granted prior to october of two thousand and fourteen there is no statement by any doctor to a reasonable degree of medical certainty that mr adams has  yes because your honor if you look at records actively the problem with doing that is that because the diagnostic information that is used when doing a retrospective analysis is based on information that has has to exist in order to establish injury is some conclusion based on reasonable medical certainty that the illness exists and so well you can do a wrecker subjective analysis of any illness including the county osis and say well you know now that i've got all these facts now that i see the conglomeration in these new events occurring in later years i now know that what wabbly happened is that he got the macone out his back in two thousand and seven or maybe even as early as two thousand you can do that exercise but that exercise is based on events that occur later for example based upon the presence of massive conglomeration which then results in the confirmation of the injury when the actual diagnosis based on reasonable certainty what you have before that day your honor is nothing based on a reasonable certainty but a constellation of symptoms which suggest illness no doubt but not necessarily in two thousand and thirteen mr adams had a diagnosis at that time of essential hypertension that was a firm diagnosis and essential hypertension also causes shortness of of breath these were all non occupational causes that were diagnosed based on reasonable medical certainty and the court or erred by failing to consider those non occupational causes able to make that looking backward analysis and till they get the actual diagnosis at the time these in these parts of these information these diagnostic aspects were a product of other diseases finally and looking at the chest x rays which as i said earlier are not diagnostic and in fact is a matter of federal regulation are not happenin to you monica just exposure we disease it is not diagnostic without one of the core correlation and we know that by this point in time as mr adams had gone to the doctor on multiple occasions and received a clinically correlated diagnosis of a non considered all of these pieces of evidence and realizing that there is a genuine issues material fact with regatta garg when the injury occurred and when mr adams would have been diagnosed with thousand and seventeen which on page two hundred and seventy one dollars holds that a statue limitations present a mixed question a blog that hear the evidence that we presented establishes no diagnosis coworkers  there well while there may have been many symptoms suggestive of lung injury they were all diagnosed as non occupational related diseases therefore an injury had not occurred because no again transfer a lot for my safety appliances company i want to make clear to the court the only thing that's material to the court's decision here is did mr adams based on reasonable medical probability begin to develop occupational lung disease before september th two thousand and fourteen and i want to briefly point out three important facts mr adams admits he was diagnosed with advanced form of occupational lung disease by all the parties the joy for example the large versus the cyrus mehri case those simple facts were enough to establish that the cause of action had accrued more than two years before suit was filed but but in this case if the court wants to go further we have offered the trial court in this court a complete medical record which which did not exist in many of the other cases we've given the court twenty to twenty five different documents covering three to sixteen years before suit was was ever filed that show the onset and progression of coworkers and sunniest this an occupational lung disease  three and i think that will resolve any any of the disputes about the records and the court will see how many times the doctors over and over and over from two thousand through two thousand and fourteen l agree to the the law case says that the time of injury will be established from available competent evidence produced by a plaintiff or defen assuming therefore that once the last you began there will be determination through expert expert proof that looks back at the records to determine when there was an onset of disease i was also point out that the law that the law courts says and many other cases that we've cited stand for the proposition that that when that a the onset of disease may be established before any symptoms before any impairment and even under those circumstances expert medical testimony will demonstrate that the injury occurred weeks months or even years before the onset of symptoms that necessarily assumes that there is limitations began to run so you know the other thing that the records in this case show is that that this is not an inequitable result low low or just profession he was being told by doctors in two thousand and seven in two thousand and to get out of the mines but he chose to keep working by two thousand and nine mr adams specifically testified he knew he had black lung disease and  become a part of any minor as of two thousand and twelve mr adams was signing completing medical histories for doctors noting himself and signing it that he had black lung disease and in two thousand and fourteen before outside of the two your limitations period he filed a federal black lung claim against his employer because he had black lung disease so the fairness of the statute and the lack of the discovery rule in virginia i guess there are not ultimately relevant to this court's decision but we feel that the linking medical history in this case and mr adams awareness of his alleged injury for so long make this an easy case to affirm and we already talked about the standard for reviewing the medical records but specifically did not so we are we are back to what is abba's this case is the cruel for personal injury cause of action which is two years from the day to injury and going back to your  injury or damage is unknown or difficult or even incapable of discovery does not matter under for general all but again i would submit to the court and i'd like that opportunity to briefly review the record some of which mr martin went through that thousand and nine was taking advantage of of becoming a partner on the minor in two thousand and twelve he was telling doctors he was signing forms that said i have black lung disease that's what that's part of my medical history and in two thousand and fourteen outside the statue limitations he's making a claim for federal black lung disease there's certainly no reason he couldn't have done the same thing and bought a lawsuit outside or within the statute limitations period  absolutely making that argument as well as several others and i think the court can absolutely rely on bad that idea and at the trial court noted that is supported by the record or the admission of mr typically takes ten to fifteen years to develop but at the very least even a celebrated form of the disease would take it least fox and that is undisputed and i think that  provide for the discovery there is no discover rule and it does not matter if it's difficult during a bowl of discovering outside of the limitations period but i i would ask the court to to scans and focus only on the time period between two million two thousand and fourteen that's fine too in fact we know that coworkers in the coming years this started about at least five years earlier and take at least at least five years to develop the two thousand and nine is a fine starting point should the child or one choose to focus on that time period because what we have in that time to read is a progression of the disease progression of of impairment we have x says a cause of action a cruise on the date the injury is sustained and not when the resulting damage is discovered and mr honor i agree that there are substantial issues of material fact regarding the statute of limitations that it would be appropriate to submit it to the jury in this case there are no substantial issues of material fact regarding when regarding the fact that this injury clearly occurred outside clearly permissible and appropriate under virginia law and looking at this i mean that's the way that the statute of limitations is decided and there are a number of cases just that it's too late that the i'm sorry your honor that the cause of action accrued when the screw was implanted even though the pad no injury at that time and had no reason to suspect that anything was wrong that is the law in virginia and in this case dr alongst testimony looking at this in retrospect which he's permitted to do he was asked do you believe as of two thousand and seven or two thousand and nine minutes or adams had some degree of c w p scarring in his longs he that is likely possible and probable and that is the testimony from mr adams own experts so there is no evidence in this case that judging back when a question has to go to a jury and when as in this case a district court can make a determination of fact that in all if there are questions of material fact and here the trial court properly reviews the facts consider the undisputed facts and where the facts were disputed looked at them in the light most favorable to mr adams which is the appropriate standards for the district court to follow and you base that on the testimony of dr along with dr laura yes and on the court's opinion where the court goes through and explain how he performed his analysis so i mean if you if you clearly questions of summary judgment are appropriate decisions by the court otherwise we would never have what the habs summary judgment so in this case in some other cases there may be questions of material fact to go to the jury in this case there simply are n and you are i'll just say that this statute has been in place already the idea that there is not a discovery rule and that you look to the day of injury in virginia has been in place for decades and decades and this court has said another court has said that if that needs to be changed it is up to the general assembly to do that the ridge in your general assembly clearly knows how to change the law and it is elected not to do so so it's the law in virginia and it's the law that since it's substantive law the need to be followed thank direct examination of that i took i think the problem is yes the problem is if you look at dr long's testimony the direct examination is in real time at the time the diagnostic information was obtained and given to the plane hi conclusions rendered to mr adams at the time he was treated and because no at the trial court erred because it failed to give any weight to that evidence and when you look at that evidence  well part ninety designation is a question of exposure when i'm sure recommend that you get into a wider exposure because you have the scarring on the lungs but under the federal regulations we also know th there's and he testifies and it's in the record that he made a part not of decision not because he thought he had a name upon the opus but because he thought that was just the best choice for his family under the circumstances and the job that he was being offered and again dispute but if i have if i look at kerry the argument of the defendants to its logical conclusion one would have to file a five years before he was diagnosed even if he did know he had it because a retrospective analysis lets us with more medical information actually pinpoint some place back in the past as we can with all diseases that all of us old guys get including myself we can all even point further back when we actually thought it started when we have more medical information and as time passes but that if that was the route that was the law then there would be no standard in virginia and there is a events injury and here's the kicker with a reasonable degree of medical certainty so the evidence that has to be offered is where before october two thousand and fourteen it's a statement by medicine it's caused by asbestos and the that is something that uniformly that triggers the statute there's no such pinpointing evidence shortness of breath caused by heart disease shortness of breath caused by pneumonia medical records leave mr adams not knowing what's wrong with him and the suggestion that he filed under the regulatory framework in order to even get a diagnosis of coworkers in the county and says you must file a black lung likely because under the federal or regulatory scheme a black lung claiming will not be accepted by a private doctor so you file a claim to figure out whether you got it he filed a claim and learned he had it as a result of that black long process on october nd two thousand and fourteen that is when the statute began to run to suggest that it is any time earlier requires a crystal ball which mr adams didn't have we believe it at the very least there's a genuine issues material fact here and we would respectfully request the court reversed the trial court in remand for trial