a firefighter in all of us who has his privately injured i feel sixty thousand for while generically speaking voluntary or working at a construction site or the city of filed a civil suit for negligence against the city of charleston march two thousand but it's continued under workers compensation from the city for months after that filed this was not a gotcha moment that the city was waiting for anything case either one can apply the elements are there for a while and clara's out to heaven it's within a subset of vishal astop so i understand that there may be different ports and getting different elements of the four or five elements of each did not it wasn't work it's forbidden number two in so far as what occurred before the pension order it's important to bear in mind that his application was on a form it's a two page hand filled out by my client and he put on that application but type of disability he was a fine or he didn't represent on his form that he was injured in or out of the course of employment  type of pension he is entitled to that he's been in mind that a firefighter doesn't get social security disability and this man's cases along for year after year before the courts and on and on and on and finally these without benefits you have three choices you can go on public aid you can apply for a not in line disability or an end line disability and get a higher benefit a higher benefit teen sixty five rather than fifty percent of his income and he also gets health insurance paid for which is huge that he doesn't in and out of line food he took the say this wrote that was fair to everybody this man was impossible for a pension because he paid into that and it was whether he was going to take advantage and get a higher pension in which case there would be a problem pursuing a separate remedy and circuit court revenue that the safest thing in the fairest thing for everybody is to concede the lowest possible benefit and allow this case to proceed on the merits in either of the circuit court or in the commission in which instance he could lose potentially and all forms all we were looking for is a four rum in which the the situation is whether or parties and in this particular case being an equitable doctrine that it is he has not fake an insistent positions or obtain a decision on the merits that is inconsistent he obtained a pension that the city somehow suffered that from an housel responded quote financially no now bat is a judicial admission and that's unequivocal now he can't be doing it both ways at the trial court and then come before court and in this particular case that doctrine likewise is an equitable doctrine does not even of all the elements are met it does not have to be involved if invoking a result in justice and so if we look at the overarching scheme of whether to invoke the doctrine would result in injustice it is clear that it would because it is protest show only possible or was that granted a disability pension of fifty percent of the statute that's not say he is precluded from getting at and sion if he is injured and the line of duty the statute merely mandates that if he is injured outside of the were building something to train firefighters to do their duty and in so building as it was to educate firefighters on how to fight fire we have cases that suggest that the moving of d fire trucks to repair facility by a fireman while used working is not an active duty while every get a rise out of them in course of but it's not an active duty he's not fighting the fire well he's not factors the right to control the manner and method of work how he's paid the skill furnishing of tools material and equipment the right of control is clearly vested and directed by the fire chief a man or a payment he was paid  commission who believe what inferences to draw and whether taking the compilation of factors on the merits this was in and out of the course of his employment but it seems to me looking at this case pension and the public policy of this state is to favor a resolution of cases on the merits not on procedural technicalities and if the city were to prevail in this case manifest injustice would result because the city could then step back and say got to mister you took the lowest possible pension benefit that was to our benefit and of course we wouldn't challenge something like that and now because of that and we rea factual represent patients you were injured in or out of the first of your employment you just chose the type of pension you were getting and the statute that concerns out of the pensions for us not preclude a person injured in the line of duty from forgoing the higher benefit in taking that lower benefit to the benefit of his employer can all on that latter point is there any case authority that the we can look to on the issue of credit well stand that has nothing in it that says he is precluded from from getting that benefit all it says is if you in fact are injured outside the line of duty you shall receive there is nothing that says this is the only way you can get it and talking of speaking of lateral sample there's that line of cases i've cited that says if there is a lack of incentive to vigorously litigate that's a factor to be lowest benefit possible he's entitled to it most people when they get hurt on the job they'll go for social security disability when they have five for police and then there's no issue this or man didn't have that option and so the three like to make use of that i and my research and judicial admissions which i didn't do unlike on the pension code i did that and i can't remember why it's been several years that we've been making these arguments but if you  in another case or is it really