so one and two in the courts and the reserve and pose the question why why and the reason is because the developing outcomes piece of litigation as justice rehnquist indicated it's an all of fun time and mass litigation this vestas it does not lend itself to nine thirty three in fact it confused the board and confuse the hearing officer the ministry at large judge because if you look at nine thirty three g there's two subparts so one is up to the hearing officer judg of the proceedings their words he rested his decision to exclude who left missed it claiming that there was no notice to the employer and in that case there was no finding of made after they became disclosed that the oral hearing and they were submitted in august of i believe two thousand there are attached to the pleadings but i want to get subpoenaed those records from the employer ministry watch judge refused to issue the subpoena so there's no evidence of whether or not the employer an insurance carrier participated knew or waived that requirement for notice there was this was a mass tort especially this litigation that jimmy barber case in mississippi that had been consolidated for m d o purposes in pennsylvania so the the question even though i didn't know about it and maybe trial counsel didn't know about it that isn't the question the question did the employer and the employees insurance carrier participate or know about the settlements the question was asked in the hearing not by me but by one of the employer's insurance carrier councils so we were not allowed and that's why one of the issues here is whether it should be  and also ortiz versus fiberboard and it talks about where the individual does not have the power to negotiate a settlement that it's impress a settlement with say that was approved by the bankruptcy judge would not trigger a nine thirty three one that required pre approval by the employer right right so mike my analogy is when you take an empty aisle or a mass tort litigation and the questions talked about by justice blackmun deals with whether you can actually have an individual players have any control over those settlements or justice blackmun talks about the individual not being able to actually have a role or function in denying or accepting a settlement when you have a mass case i believe places this into the situation of the same as the insurance carriers also with their was file a copy of the little the trial attorneys letter from me in the settlement from the defense saying they were contingent upon the employer's approval be thirty three hundred dollars all of those settlements a few hundred dollars well it's not uncommon in releases to say one thing and to have the agreement of the party say another well i've been doing this long time and what controls the intent of the parties and if we ha submitted the evidence that was contingent upon the approval the employer did not reject them did not accept them this is the problem that both the majority and the dissent in the current case recognized previous to that time if an employee getting compensation did not get compensation there was no requirement to get approval in advance of the settlement there was this requirement give notice because our case for the way it came down so that didn't matter even though you're not entitled to compensation which there's a and in that case the defense attorney admitted that they knew and participated in the settlement and i just held it out as a hook to the hammer of the victim and they use that to hammer the victim this  congress result as dr justice blackmun says it didn't analyze the real purpose of the longer and harder workers compensation act it's the compensate in this situation there had been no finding that  step the classification of the specificity unique form of litigation which i think it's hard not to do that with reading the papers and and watching the cases however there is a question of entitlement to benefits and they made there to delegate to the employer unfettered discretion to ignore as they did in this case the request for approval to deny or  approve is simply an appropriate and it's unconstitutional and when you when you take as a situation where there are a lot of cases cited talking about you can delegate authority to waive protections  protected class and that's ok the union case is the case where there's a land where the land is spoken for by the by the governor but when you delegate the authority to the fox from whom the legislation is intended to protect the sheep then you cross the line and in this situation i believe they cross the line as do the old adage we're all familiar with the you said you wouldn't notice it what do you mean i'm a scorpion i can't change my character and that's what they've done here and when you and i believe that's an unconstitutional delegation and a violation of due process i believe  to notifying the employer of those settlements in point of fact we had a formal hearing in this case before the administrative law judge on june nineteenth of two thousand and one which was the first notification through the employer into its various carriers all of them of that fact the plaintiff had entered into settlements in the year prior and i'm going up to the shipyards be that as it may the horse is already out of the barn i think that was what the judge more or less decided the question would have been whether or not the employer or its carriers knew about  participated in the settlement and not only that they funded that settlement and can't work and then came back and asserted the thirty three g bar against the claim that in that case and prevailed in front of the doing this while i know that employers do approve of settlements from time to time not always for it depends on the circumstances but in order to determine what the circumstances are upon which to base a decision you have to be given notification and an opportunity to do that that wasn't done here the settlements were fully executed under the number of cases as far back as of june of two thousand and it wasn't until august of two thousand and one did the claimant through her attorney begin constitutionality alex said i'd like to state that we agree with the benefits review board that the constitutional issues raised by petitioner here are not presented by the facts of this case and do decision by an employer carrier she was not injured by the absence of standards in the statute she was injured by her own failure to seek approval within the appropriate time under the statu are you making this thing or you know something else i think it has both elements of standing and elements of the doctrine of avoidance but in fact what we're saying is you shouldn't be able to raise a constitutional question that you easily have avoided it could have been avoided if the employer is given its approval more than that which is talking about is there should be standards for the decision but that's really irrelevant in this case because there was no decision much argument on that point but particularly with respect to the delegation doctrine and let me just briefly recount section thirty three and its purpose as you know it three i think is a more particularized balancing of employer and employee interests in the context of third party claims and section thirty three permits employees to both seek longshore benefits and to thirty three g which howard explains its purpose is to protect the employer of its employee accepting too little for the cause of action which would deprive the employer of the appropriate sto in response to petitioners discussion that the longshore act is the employee beneficial statute and it should be construed in light of that that most certainly is generally true true but the statute doesn't achieve congress could change it if it wants to it's certainly not a matter of constitutional dimension and power has settled the statutory question on the question of whether there is an undue delegation our response is there is no settlement it's simply acting in its own interest in its action triggers the statutory rule which is specified and so action thirty three it's no different than the employee's own decision whether to enter into the settlement and unions are not legislating when they entered into these opt out provisions they were merely exercising their own interests and that list just as true here the employer is simply if the employer acts on the request  complicated and difficult matter and it's one that needs the benefit of policymakers not a constitutional evaluation i don't think i really have anything else or from religion so it's very questions from the court case in the robinson versus terminal secondly the state workers compensation area in which your honor asked the question there is no requirement for pre approval of settlements but if they're not reapproved this state is not foreclosed from process is to require that if there is the allegation the court must have some guidelines and in order to measure whether delegation is an abuse of discretion whether the decision actually made by the employer whether it is right or wrong the purpose of nine thirty three was supposedly to prevent some kind of a coersion between a third party level person and the employee to the disadvantage of the employer in this situation that there was no evidence on it but it's certainly an improbable where you have an ongoing mass that again the settlements were found in the bankruptcy case that that it was not such that it put the employer at risk because they were approved by the judge these widow and this worker from the purpose of the statute to provide proper compensation to these people is in congress and it's unconstitutional to allow the employer to be the linchpin to make we've been submitting regularly and one of the issues we asked the board to keep in the files with submitted to the board additional requests for approval of additional settlements which have been equipped were ignored there's been never responds to requests for approval of settlement we're just we've sent another one out on your position you don't know things or yes yes we have and they just ignore them i just like to get the ones that we sent in august with the contingency letters so this is the settle