which is cited at one compensation for sitting still pending in virginia as part of the stipulation that what your client agreed but his injuries arose out of the workplace acts and then you have a case where someone is pursuing both compensation and it's a case has it because there's not a rise out of the job and the plaintiff decides to consume a civil suit then it seems to be think i think there's a sexual some statute you're talking about a statute section sixty five point one desk twenty three point one i think i think what i'm saying there is that that statute will give us some guidance in terms of how  the district court misinterpreted how how a injury arises out of the job and the district court have some sort of personal relationship with the person who makes them small and i think that's a list interpretation i think that the actual wristband has to do with an employer reason rose out of a work related accident i don't know why we would go to any other now and all this analysis you're talking about when your client has already said in a stipulation that this court we don't there's nothing for us to review don't know since you didn't make this argument as i understand it to the district court but certainly not in your brief here we didn't even make our own equitable might be a powerful argument but i don't see it your honor we did make the the same injuries and the exclusivity provision states that once you have accepted provisions the title to pay and receive compensation that's all exclude other all other rights and peace and i agree with judge milian your comment from a previous argument still pending you know what the status of that is i do not your honor i met just a week ago with a worker's compensation attorneys who primarily handle that case and was not told of any pending dispute related to an application for additional compensation under the prior claim so there may be and a new case filed by a different attorney but as far as   are you abandoning your st argument about this court black subject matter jurisdiction well i believe the proper jurisdiction is in for the virginia workers compensation commission because this all be a great merits argument for you know about displacement but we've got to express jurisdiction under this modest action that's about jurisdiction of course and we have it only the original jurisdiction your honor but subject matter jurisdiction isn't necessarily very i mean plain original jurisdiction and subject matter jurisdiction the original jurisdiction means that a case can be brought against lamont but depending on the subject matter of the case that it may not be appropriate given claims that's a different that's a merits and supreme court has been has been directing us for more than a decade now to be very careful about what we label jurisdictional and i'm not aware of any authority for the proposition and this type of merits argument that you're making is jurisdictional and in fact the federal tort claims act has an almost identical provision called in the united states government libel consistent with state know i don't believe as discussed by butler i don't see it discussed in but i do have a case in front of me i was reading it i believe it's about whether the injury in butler was compensable under the bridge or you workers compensation in the st instance and i believe that's where most of these cases lie i don't believe there's a case where there's some allowed to receive compensation under the act and also allowed to sue in court for hussein injuries against the employer are you familiar with this you can in what an accident whether accident can be an injury under the worker's compensation act it says although the injury is a result of willful unintentional assault from either a fellow employee or another person that does not prevent injury from being accidental within the stretched the meaning of the word accidental right and that was so that the injured employee would have someone from who he could recover for these very serious injuries committed by some hitchhikers sensually its descent points so i thought it was interesting where  the court held that if you work at a stable you can expect to be bitten by your friend's dog well if you haven't been around stables there are dogs around there liquid that was present so nothing about her job should cause or it come in contact with liquid on the floor by nature she was off the clock when he was supposed to be there but that in analyzing all attending circumstances the court found that but for her employment and the up he just hit the law in the back of the head and him started the salt process all over again and how can we tell on a motion to dismiss as opposed to a summary judgment record what all the relevant circumstances are here according to the complaint with the folks that came out of the blue they weren't having a disagreement they were having a discussion and any assaulted him and even if you think that st round might have been tied to his work on the machines there was then a nd round of the assaults i'm just i don't understand how this is something that when you keep referencing we need to know all the attendant circumstances and we can decide that at a twelve basic stage as opposed t workplace argument over workplace responsibility don't talk about an argument the complaint does not allege an argument and so the discussion and we have to take that as a fact for purposes of a twelve basic stage so let's not call it an argument let's call it to see how that does not describe well what if what if it turns out mr van buren had a mental disorder that was triggered by people threatening his authority his perception of someone threatening his authority so this attack was a product d of his message mental disorder which made him personally hate mr work and getting a new would that be personal or would that be workplace if is on assume these facts which we don't have in the complaint yes but that mr van buren has some sort of mental disorder that makes him violently react whenever someone seems to threaten his authority from his perception it could happen at work it could happen at home it could happen on the street it's just the thing that happens and it's something make something burst out in personal rage and the person who in his view offended him don't tell me the test tell me whether that would be personal or work related yes it would be personally or are ok how can we tell that at this stage when you have a complaint and say as the pale and this guy used foul language but there are people who just talk that way we're having a discussion many exploded and then we stop fighting and then as i was getting up he exploded a nd time i could that be decided on  i think that's possible but i think that you would have to rewrite this complaint i think you would have to rewrite these allegations in order to get there your honor and if i may as well he's not asking the court to return  perrier that's an affirmative defense isn't it yes or honor it were require a lot of fact finding things seems odd to get the motion to dismiss on the basis of an affirmative defense for which you would bear the burden of proof and crazy right i don't believe my hypothetical i don't believe that the two laws are inconsistent however you said in a very different description of the complaint just now than you did when i was asking you about arising out of work something that seems different that you i don't know how you can fairly read the allegations of complaint in favor of the plaintiff both of those ways at the same time which we would have to do the rule on that make any further questions  mr ward can you hear me a policy of safety policy which is korea minute and that organization secondly at some point ya know if i may i'm not at a position where i could provide you with that particular case  is that i do believe that this was not an argument as you pointed out to counsel it was assault there was never an argument and i do know what what what happened there was that he was in dire straits financially and he he had i knew i told him there was a possibility they may be may not be able to a coupl buren had at that particular time and that was one of the issues that i had by being dismissed earlier and i indicated that to the district court which is that i had heard rumors that there was some other issues with the same gentleman in the organization but he was never reassigned or it was never resolved