good morning your honour's may it please the court will our american hear on behalf of the petitioner jack callison i intend to try to reserve two minutes on or about all this case involves the legal definition of a compensable injury under the long shore act which is a question that extends far beyond the end of the individual mr callison it extends to other long claimants across the united states it also extends to claimants under the many extensions including the non appropriated fund instrumentality act which covers many civilians that are on united states bases it covers workers under the defense base act who are both foreign and american working abroad on united states bases and under u going to need to reduce that so the two main issues that i'm hoping to address and of course would defer to any questions that your honour's have about the others are number one if joint or just generation is progressing at a faster pace and in a particular pattern because of employment duties is that a work related injury and question two are conditions like chronic obstructive pulmonary disease diseases or accidental injuries as to the first point in your honour's when it is a wear and tear injury compensable this is a case in which both of the medical examiners concluded tear is a normal life issue and therefore not work related that was mr greenfield for do it the other doctor dr stark testifying for my lesson concluded that wear and tear ultimately leads to the disability now interestingly the testimony that dr greenfield actually gave shows that his definition of what normal wear and tear is in compass is greater wear and tear and particular wear and tear patterns that one might have at their workplace he gave an example which i think to many longshore practitioners would be a perfect be sore and that pattern and excel aeration though in his mind was just a normal even though it was linked to a particular activity and interestingly to a work activity in his case because the deposition was part of his job but under price doesn't the claimant still have to show aggravation works so aeration however minimal and is your argument well just walking every day that harms me so therefore the employers liable no your honor not exactly my argument is that if the employer requires a greater activity if then one would be doing outside of employment then that causes liability so if the employer is saying you need to be walking around the yard all day and that's what's causing the aggravation and i believe in price one of the aggravating factors was walking then yes that should be a part of the process that's all part of the wear and tear process which exceeds that of which would be affecting you know me in an office job or someone not working on the waterfront such that the example going back to the  which dr greenfield had provided it's not just that he was talking it's that he was talking for hours during the deposition to the point that it would even hurt the next day and that was considered normal seems to me in this case they're going to get up and say well there's substantial evidence standard which is very deferential your client did not complain about these problems until after he retired whereas when he had previous incidents that work injuries he complained at the time and then also there were credibility problems with your client both in terms of answer in terms of testimony depositions a criminal record of several i want to make sure the time you have it you can address those points yes your honor so to the credibility point we've conceded that on appeal and that doesn't drive the question of whether the injury described by dr green fields where in a particular acceleration a pattern of threading of cells alternately leading to a just degenerative condition would be work related or not he has films he has x rays and m r i s from both before and after the employment that show degeneration he has for example the cervical i think about the camel if during his forty two years of employment employers keep putting pieces of straw on that camel's back but only six months after his employment does the camel reach back and put a piece of straw on his own back and then it breaks is that not work related even though the major stack of straw was put on during his employment but in this case your client previously would go to employers when he had problems now i understand as are at different types of injuries is be something slamming his hand or cutting off finger i mean they're more a calm acute injuries than this is more of a long term one but again under the substantial evidence standard which is what we're which is not a noble review we're doing here what is it in terms of basically what com els us to say the i j a here got it wrong what's your best point on that the best point on that is that both doctors said it was aware and tear injury and with the wear and tear injury it's a little bit by bit day by day and not the type of thing that he would have gone to his employer about necessarily he testified he was already taking ibuprofen so we have this gentle increase to the bottom rock in the water is what you're basically arguing sorry frog in the boiling water to use a different animal analogy right right ok but i if for us to go that way would we have to say then that wear and tear is always compensable no your honor there might be a doctor who defines wear and tear differently but as the phrase wear and tear was defined here by both doctors it has to do with the activities that are being engaged and both doctors acknowledge that wear and tear affects the pattern and the acceleration so we have acceleration we have the ultimate contribution to why he was suddenly so disabled you know several months after his injury that didn't come from just walking the first six months after his injury you want to reserve a time yes please your hon well as a rewriting of the causation law i think judge malloy was exactly correct we need proof there needs to be proof of an injury the ala jay issued a meticulous thorough ninety two page decision in which he articulated the basis for the findings the basis for the weighing of the evidence there was conflicting evidence as to both job duties and work environment and what i hear from counsel today as i'd like the court to re she did not make a factual finding that the c o p d was aggravated or worsen or affected in any way by the fumes i don't believe that's in the evidence whatsoever or in the decision your honor what she said was there is no burden of proof and if we look at it and the b r being echoed this that this man had episodes of c o p d before he was at the trip while he was at the tree his condition was in fact better than it was previously and in the six months after it was also better again and she saw no link and she weighed the the working conditions and there were the two fact witnesses who said there was an open air it was on the water and that the fumes that you reference the diesel fumes come from machinery that are fifteen feet above the level of the ground so he would not have been exposed nonetheless  is it possible and under the longshore act and under section seven of the administrative act the minister procedures act and granted to collar ease the true doubt rule was removed we need to show proof as judgeable lawyer indicated and because something is possible doesn't mean there is proof of an injury and that was the standard we would be removing the proof we would say that anyone who walked on a job site might have been exposed it's possible bother you if that was her determination and i think it gets back to possible there is no way to defend if something is possible it gets back to  condition so if it lets none of them time if there was a dispute that's for the fact finder to weigh and as judge judge owens indicated this is the substantial evidence standard the judge issued a very well reasoned detailed opinion which indicated that the only proof that dr harrison had was the testimony of mr callison and she discounted that testimony as factual and as reliable and outside of that dr harrison didn't take the history of his smoking never visited the job site didn't know the actual events of the employment if we look at dr harrison's testimony he makes presumptions that there were conditions that could have caused it and what judge g for indicated and what the b r b a firm was just because something could have happened doesn't mean that you meant the proof standard and that's what what they're trying to do is conflate here claim as attempting to conflate the causation standard with the price last responsible employer standard and that conflation has been appropriately rejected there still needs to be causation of that condition and because something might happen is not the level of proof for injury and judge fisher if we were to go with that as a standard how with their be a defense how what would the ail jay have to rely on the l j would have it is it possible standard which i think would be a near impossible standard for defending a claim and for making a finding of compensable realty i think what judge g indicated here was there was an absence of proof and she said that dr harrison had no basis for his opinions other than mr callison so he had an absence of proof and has to get to the c e o p d i want to be clear that it's our position that it's not standard what was presented were witnesses which were credited by the judge that the working conditions were on the water there was air there blowing through and that the fumes read a level that were above his working conditions also that claimant didn't come forward with any evidence themselves of air testing or other proof of and injurious exposure situations so  agree that it is absolutely possible that c o p d can be aggravated or accelerated but on this record we have someone who had no medical care no symptoms during that period of employment and then six months after which there is no evidence that this is a latent condition and in fact claimant stipulates in their opening brief that this is not a latent type of disease so we would take we would expect to see in that the evidence indicates we would expect to see some level of symptoms need for medical care or disability either during the employment or after the employment and the record is pretty clear that his condition is actually better when i only deposed dr harris and he said the d is better now than it was before he started teacher and the trial decision points out quite accurately that claiming it is in the situation of claiming that somehow he had an aggravation or acceleration when this condition is actually better today than it was before he started with with it there's a matter that he was diagnosed with p d before he went to work for duke or it's just one of the facts considered by the trier of fact you can have an acceleration or an aggravation of a condition during employment so the fact that he had it before hand tells us that this condition exists that he has it but it doesn't tell us that during the brief ten or ten and a half months that he work to do trick that it was accelerator aggravated and there's no proof in this record that that happened and i think the concern is could it have happened and i believe it could have happened but this case is about proof and when counsel says that this case is about more than our situation i think from a policy point of view it would send an awful message that you don't need to have proof as long as something could have been caused we find it to be an injury and i think the substantial evidence that judge owen standard that we have here is what governs the factual findings the evidentiary finders and the expert finding that the judge made were well well reasoned they were rational and they were supported by the substantial evidence standard and the they had here to the law requiring the section twenty three step proof of injury which claima example there's a tuberculosis case judge learned hand decided that because the debacle is this was caused by exposure to grain husks or something like that even though tuberculosis doesn't exist in a greater degree among grain handlers honor so there is a difference in the test between an occupational diseases and between an accidental injury the language is different within the statute and courts have interpreted it differently for example the ninth circuit in the iranian case that's the port of portland versus director that's in one thousand nine hundred one case said quote court darrow which is another case does not require demonstrated medical relationship between the employer coverage between the employer covering the risk at the time of the most recent injurious exposure so the focus is not on is there a cause there's also the loose big case out of the ninth circuit in which it could be proven that the latency of the cancer did not correlate to the final employer but because the exposure went through that final employment that final employer was liable now much is there's a lot of pushback on applying this case law here because it's not a last responsible employer it is he worked in multiple employments he brought a claim against three of his employers and to hold that he can't have these same standards because he chose to lead out to employers via settlement would be contrary to public policy and logic would be discouraging settlements so that needs to be the same standard whether there's more than one employer o as evidenced by the ninth circuit's peson its decision that's the top shipyards vs director case it falls to the employer to present substantial evidence that there was no potentially injurious evidence that there was no potentially injurious exposure the employer has failed to carry their own burden of rebuttal and automatically the claimant wins and