of these in the record you know we have a bunch of boxes and somewhere i think we're missing a box and so have been made to work so where is where can we find these docs these two things you're talking about up the documents that were produced in discovery and so some of those are employees exhibit twenty six roughly pages forty nine those are like statements taken and they're written handwritten from i don't know where on the record an appeal these things are they don't page forty of the redgrave the other side quotes an r of a which appears to be the opposite of what you've said you disagree is just an incorrect quotation from the record i give you time to look at respondent was not interested in that admission being in the case of has been withdrawn as nothing will still that there's been no motion filed at any stage is proceeding to get rid of it it's just a lot of argument on about how it should be taken literally it shouldn't you have a case where and the important point of that is that that was a live issue and from the court the court should have taken that admission and its effects into account that was important i think holding to that case and i don't think it's a very radical propositions basically what's at stake in that and the what's at stake of the procedur that's i think that's fairly radical that's and we're urging a very i don't i don't think i'm refusing to take it seriously so i'm not i'm trying to properly construe the mission of course to be clear our second point has to do with the interaction of philips and the case if you will be case and it involves i guess i guess for us it's a common law analogy it doesn't get into the respecters it reverses a finding of a third party status and pulls in an employee would be also borrowed supervisors working at that they'll ship yard and the ceiling in case on that would have been the americans and the american east and texaco supervisors i think it's the language or something that's like we don't care if it's the texaco supervisors or the sub contractors supervisors this is a borrowed situation is your view is the entire team is basically there over there because it's going to vote yes yes just the standard of the caps is that it's authoritative directional control it's not the micromanagement of everybody's daily each of the factors for release there's a fifth circuit case right on point and it's you know that controls the outcome and we're not trying to say that the facts are found wrong in this case we're trying to say that the facts were interpreted in accordance with not i greater than the reported settlement in state court and therefore said that she would apply there so that you know either way whether you win the amount or not when the amounts are still the same situation so the modifications and i think that means that g is not please court richard vale on behalf of respondent and cross appellate huntington mangles as the court is aware this is an appeal from the b or b affirming a decision of the administrative law judge standard view in these cases is limited in scope to considering errors of the law make certain that the b r be it here to its statutory standard review of factual determinations that is whether the a j s findings of fact are supported by substantial evidence and are consistent with the law substantial evidence is that relevant evidence more than a scintilla but less than a preponderance that would cause a reasonable person to accept the fact finding did not find as many factors that did not favor both serve a status as did the administrative law judge but it was clear that based on the ministry of water judge's findings of fact  yes ok you say that your client couldn't force i am i to far so no borrowed servant status but under caps and other cases the right to discharge is simply the right to keep them from doing relevant work that's correct you could have kept him from being on the work side doing work that's great for that cuts against you yes your honor in fact to be or be found eight i status and i would argue even in that situation as long as they cannot fire the employee but only say they can't work on their promises anymore should not satisfy on is that you've got to look at the big picture you've got to look at all of the factors and not single out one as more important than the other in order to determine who had control of the employee and so eight does have a factor to help indicate control but you've got to look at all of these factors in toto and in most of the situations the cases that the appellant's of have a  doubt with contract labors temporary employees who report of the first employer loan them on to the second employer who lost control of them didn't supervise were supervised by the second employer the second employer could fire the second employer paid them hourly based on their work and all and when you and that these temporary employers employees knowing they were being loaned to the second employer acquiesced in the work environment and so those factors all support for the service but in this case  supervised by his own employer in fact there were five supervisors here or a different badge than those the avondale employees he wasn't paid hourly in other words avondale didn't say how many hours in a strictly out work were going to pay him for that they paid i am for the task that they were to perform which was specialized where they brought their own equipment especially the scaffolding which was specialized for them for their work  remained under the control of international reign is direct employer he never acquiesced in the work in fact there's a quote in the go day case which does fine tune or refine the rule as factors as the ones that might be more important in the go daddy case they said that if the employee he's doing work and goes to another site and is doing that same kind of work for his employer then he does not appreciate all the risks of the new environment and therefore does not presume that he acquiesced in his work environment since he's doing the same work for i am and then after this job ninety days in length he left avondale and went on with international mean to the next job so the administrative law judge found seven i mean eight of the nine factors in favor of not being a world servant finding that number two was neutral and the b or b found several of these factors in affirming that  and the employment was for ninety days and once those days were over mystically i did not expect to stay at avondale which he did he went on to work for i am somewhere else so all those factors under the rule as test i think were correct only interpreted by the administrative law judge and the benefits of reviewable and you addressed the posing council's argument that if we were to rule for for you that this would  problem in our torque law and caps in the long sauna that this is somehow a dog's with that in that we're going to be upsetting the whole liability issues for him and expand liability greatly do you want and again most of the cases they cited dealt with temporary employers contract laborers this was not the situation here so i would hold back from looking at one or two or three or four of those factors and look at the big picture it's clear response to the request for it but if once it became clear that it was a stumbling block well you know even in this why wasn't some effort made to be withdrawn the mission well it was that's a normal thing to ask for if you have an admission it's turning out to be contrary to what you're saying i guess that might have been the most prudent thing to do but the administrative law judge found that what they were trying to do was taking that response to that request for admission that were that were set early on in this case some court is aware this is a cases twenty eight years old that some of this correspondence it did say he is our old servant or he is our employee they just referred to him as employee in that nicholas case that the appellate side in that case the defendant and the court found that there was an admission in the contract but there was an admission of the answer and after the case was sort of first occur regarding board service status and so i think it would obviously be very unfair that this whole case be determined based and i would like to cite to the court two cases which are not in our brief for which i apologized but they're both from the circuit the first one is martinez versus bal ited to fifty fed thirty three nineteen they also this court also defines you dish of the mission and says that it must be deliberate clear and unequivocal and so admitting that avondale in this case so it's our position that those cases along with what the administrative law judge concluded from the facts and the b r be concluded from the fact that the pent up demand issue in this case they cross appeal you thought i'd like to speak on that for a second and then if i have time i'll talk about philip's essentially before the last hearing after the third party settle we applied for section thirty three g relief which under powered says that if there's an unapproved third party settlement the claimant forfeits all benefits medical and compensation if the settlement is for less than what the exposure will be the administrative law judge initially granted our section thirty three g relief requests on reconsideration he said well since the settlement was for sixty thousand dollars and your liability up to this point has been only five thousand dollars we're going to give you thirty three after instead of thirty three g which means we get a credit and under villain the wave of the fifth circuit says you know it really doesn't matter whether it's thirty three f or thirty three g because in either case the  about it should be extinguished but it's important this case because the administrative law judge said thirty three only applied to disability benefits not to medical benefits for which we remain expose so then in this case after the hearing the administrative law judge found that there was a change in circumstances found claimant to be entitled to now more benefits found that those benefits exceeded the third part of settlement and therefore section thirty three g should apply and he said just above the order in his findings accordingly section thirty three g mandates forfeiture of disability and medical benefits therefore claimants request for modification is denied as lacking merit and then the order says based on the foregoing he dismisses the section twenty two modification what the b r b did in interpreted under very strict  situation was with the order dismissing the section twenty two modification gave no effect to set the fact that the ministry of law judge had awarded us thirty three g relief whereby a claimant forfeit his medical and compensation benefits from the date of the signing of that third party settlement what's really puzzling is that the venice reboarded previously in two thousand and three when they remanded the case for this issue said to the administrative law judge look at the fact that if you do award benefits that additional benefits that are greater than the third party settlement then you need to consider thirty three g so the b r b predicted exactly this situation the administrative law judge heard the facts awarded benefits greater then what the third party settlement was for and giving for a fact to the administrative law judge decision and not with respect to the strict interpretation given to it by the bennett's review board it is clear that there was a   lease section twenty two modification whereby a man does not leave the worker if you are correct he would be able to go back to the administrative law judge and ask for benefits from the time that compensation was terminated in august of ninety one to the date of the third party settlement which was january of two thousand because the ministry of lodges found there was a change in circumstances and award him greater benefits the only problem is once he confected that third party at settlement without the approval of the employer he forfeited all future benefits and cop and medical based on  well that's from march i mean she's the january of two thousand to the on words i haven't calculated what the future exposure would be in that case i think at the point of thirty three g is if there's going to be a settlement with a third party the employer should have an opportunity to participate in cases to local settlement it's very clear that the employer is rarely protected in these kind of situations where there's a third party towards it and so under powered they made it very clear that you know if you are a fact the employer's rights they get to get their money back from the third party that caused that fear is the  approved third party settlement by a cohen point wasn't even in existence or or in the conscience of this case of twenty fifteen when they are trying to figure a way around thirty three you'd asked about whether or not the requests for admission number eleven was more specific than number ten and quite frankly we think they're both very specific to very specific issues number ten asks whether or not they were cohen ploys the two men an opportunity to determine the employment relationship and this matter that employment rate relationship is a triangle it is whether or not there's a common ploy status or whether or not there's a part of a ploy status under either scenario we get to the part that we need that mr amazes arguing that thirty three actually applies and that it was a cohen ploy he injured him and therefore section thirty three of the act is not a political all of the argument about third party none of that was ever an it was just assumed this is a third party that is the purpose of the second point to modification to get the facts right and that is why in twenty two thousand i'm sorry two thousand and five originally and then subsequently in two thousand six when it was refiled mr amaze on his own without legal representation kept his claim alive by filing the section two point two modifications the section to modification allows the courts to correct facts we believe that we probably prefer as we believe that for instance mr mr vaile was talking about there was no acquiescence the fact that mister lives in alabama but drives all the way over to have  in the west bank of the new orleans area tells you that he knows his condition has changed and he knows that he's working in a new environment and acquiescence is whether or not the actual you're just prints acquiesce involves whether or not he actually consented or did he complain about it for ninety days if it complained about it and i daisy continued to do his work we think that the rules factors as we briefed follow all of your own president and as such that shows that he was a part of a ploy further we think that the securitized case is a separate way of actually accomplishing the same task as secure a task when an employee at mit's to an employment relationship cohen employee and we would argue is petition i'm sorry that response has raised in their cross appeal whether or not thirty three g should be applied we would argue it's not we think the b or b actually got it correct or a modification seeks to change facts or findings in previous rulings the judge in the l j found a lot of different things but ultimately the situation was the modification was the nine the effect of the night modification is that the prior rulings are still in effect that is why we think the b or b got that correct and this matter is essentially put is put aside the procedural history which is obviously complicated and dr is wrong why shouldn't three three