essence i think the courts below have missed the this is a worker's compensation case and the section twenty presumption the fall under the act that the claim falls with interest action of the launcher act representation exist it is the employer who has the burden of going forward with the evidence argument is simply that's having that burden of going forward when we presented the weekend  case we said that would be irrational going well here you had direct evidence about what this person did what work this person did and that would have been now were now you're saying because there were also time that the employee had the obligation to produce the timecards even though the employee had not done any discovery to find the time cards introduce the time cards and so that where you  since i was a trial counsel no it was very clear at the end of that session that the trial judge had reached its conclusion and it probably made little difference what we did although candidly i will share with this court given this is a long track case and given the provisions of section nine twenty two of the act there is virtually no finality and in fact i think mr my remedy should this court decline to accept our arguments the very conflicting testimony of the witness that what's out on the stand did you did any witness other than the petitioner testify in support of his duties being in the shipbuilding his contention was that he felt pressured by my presence with a private investigator when we took the statement but he offered no explanation as to how he felt pressured or whether in fact his subsequent visit to the employer the fact that on may thirteenth two thousand and three two and a half months before the trial under direct questioning of justice no earlier martinez at a deposition mr dupree did elicit testimony indicating there was documentary evidence that was acknowledged that there were time mr martinez was the direct supervisor the claimant he acknowledged under a leading question of mr dupree that in fact the time cards were coded he was being cross examined was that it was a deposition i believe that mr dupree set and so on of an adverse witness correct so is entirely correct what i'm saying your honour's is quite simply mr dupree's the leading question would indicator of events and events a knowledge that those time cards existed on the str priest part prior to the deposition was it something as stated mr kreis brief that came about as the result of cross examination at the l g a trial it actually occurred two and a half months before that where there was an acknowledgement by the claimant through his attorney of record that there was  documentary evidence that was possibly dispositive that was never followed up with the discovery response or anything of that nature that the deposition referred to occurred prior to the hearing yes your honor months may thirteenth two thousand and three and it was  and mr martinez was a direct supervisor of the claimant and the reason that your honour's correct in terms of the evidentiary basis of the question i didn't have an objection to that it's the fact that it would have been some knowledge that the cards existed wasn't simp for to it as a result of t act to consider the adverse inference rule in this case judge dorsey when presented with the argument concerning outbursts inference essentially said and i believe this was his quote he said in my view all the witnesses testified to one account of events with the exception of the claimants and he said he couldn't see any basis for a jurisdictional claim or or for this claim to fall into the long harbor act so not only do we have irrefutable testimony but we've got it from multiple witnesses properly courts will be careful about the record you'll concede that if these timecards were put into the record i mean ever all the evidence screams out that the timecards would have justified the decision made by the  ultimately by the r v but we don't know that the the l g didn't ask for them to be produced when question came up at the hearing counsel for the petitioner didn't ask for them to be produced either at the hearing or before but intimate clear we don't often get longshoreman pieces here but if tomorrow the counsel for petitioner found the time cards and the time cards in fact supported his contention he could effect file a new proceeding or move to reopen or something of that nature i think that that would be within mr du preez rights and he acknowledged to the court the one final thing that i would say in regard to the case we were looking at the adverse inference rule just remember from a matter of practice when the party against whom it is being used has the burden of production typically the courts of found that there has to be some objective conduct that manifests the desire to because that speaks to the relevance of the evidence and also speaks to the supreme court's concerns that silence becomes evidence of the most convincing character in this case we don't have the proper predicate of discovery request so therefore we can assume urn for adversely against the attorney mclean makes mention of a definition of a leo martinez i'm not certain that that got decision as part of the record of but what he what he does called to the court's attention was that not only did i as a trial attorney for the injured worker apparently know of the existence of these timecards certainly counsel for the employer knew of them as well what we're unclear of today or at least i am here is whether any of us recognize the significance all right thank you so when they went to trial and when they chose your evidence they knew apparently as well as i did of the existence of these trying to correct what clearly came out at trial was the significance of these timecards heather coatings which would have been terminated of whether mr might in fact worked in covered employment where you had this conflict in the witness's testimony well it sounds like if they're there and they help you you can find out still get really is that correct that would be my view of the law although i suspect the employer will resist the protection of those documents and i submitted for decision