what this case is about what's been very much time on this case involved an accident involving a look and look at commission to the point that he was working on a construction site my clients these these construction was the general contractor the plaintiff employer was the third party defendant employer in this case was tried a year ago may of two thousand and fourteen before judge doherty  the underlying case between the plaintiff and my client and the contribution action between my client and the employer the cases were tried in the same jury room consecutively i think only one tional witness was call the for three hundred separate proxima three hundred thirty five thousand dollars which represented fifty percent of the gross judgment at that time subsequently mr hans for the employer following post trauma motion indicating that the workers compensation claim had been fully resolved contribution action and obviate the need to satisfy the contributions judge are looking for still for that proposition it's true that we don't know about the fever and what the future does not discuss or address in any way is what happened during the trial regarding the the presumption exists i submit that in order to waive your lean in order to have a value yourself of the right to dismiss the contribution action that was passed the still exists you still have to have the right to if you look at the supreme court's decision in virginia surely which was decided in two thousand and seven six years after him versus outby again research the proposition that could check it isn't affirmed the fence that must be proven as you pointed out no breeze  you was a workers you was an employer can take this worker's compensation lien and you can agree to waive it punish trial i think a change and change the landscape here in that it allows for the employer to  ocean which the yates the amount of the workers compensation lena's paid also the bias of the court that the comp case had been settled and ask for a dismissal of the contribution claim that was filed with me i think that the court that has been paid and what hasn't clearly was never would buy from the jury there's no way that we would have i would have presented insurance information workers compensation information in front of the jury and help them decide for us you know what how this is go is spent fairly prudent and he said the amount of the set off that was applied to the verdict and then dismissed the contribution claim and i think that's exactly what should have been done in this case court from the just who had the case pursuant to one ninety one to give the court the information that it needed in order to determine the amount of the worker's compensation mean and the amount of the credits that off that would be a and that what you had to prove in both of those instances was that you were the employer oh in that you are paying for this compensation and that that with this initially the proof well yes i mean to the extent that it gets it's traditional not typically when you're going to the employers be sued because the you know of the employee selecta i don't think that you know i think all you have to do the only affirmative defense that you have to that goes along with the way that as you know you have to say i'm going to be relying on the worker's compensation payments that may be but they you know they actually have to because that during the course of litigation it's still paying the worker's comp right and i agree that's what i think is the case i think that you know you it's it's clear that those payments are being made only have to prove that those payments are being made but i think it's something we have to technically there was a motion in limine to read anything being sad about workers compensation or insure so but it did come out of trial and so i think that that to the extent that if you believe that refer to a point now of what the benefits were not wasn't attached there was inconsistent season factors in the consistency between what's in that respect insufficient computer about what the settlement was for what the average david says and other references to the amount of the which were held under the rules of evidence so for those reasons i asked the court to reverse the trial court restate the judgment of approximately three hundred seventy five thousand dollars difference to the contribution judgment and on mak