term disability income policy issued by paul revere our client mr period is a century a self employed sole practitioner sole employee he operates under his corporation he has his one hundred percent owner he is the only basal cell carcinoma he treated that for ten years in two thousand and eight it resulted in the fact that is right here had to be amputated and all internal organs in this right here were removed and he was fitted with a prosthetic device at that point he filed a long term disability policy or claimed with all revere and they accepted the claims and they paid him long term disability benefits for five years during that five year period mr period he was not able to conduct sales on the face to face basis in the manner in which he built his company and that is the core issue in this case the issue in this case is what is his occupation paul revere takes the position that if you're a salesman you can sell anything mr fieri as a specialized type of person he works based face he communicates with people he goes to trade shows he goes to seminars he makes presentations and as a result of the sickness that he suffered as a result  of his cancer he has not been able to deal with the medicals that we have produced and pretty much rock solid on that he has one hundred percent hearing loss in his right ear number two a hearing aid will not help him he has no hearing organs and number three he cannot and which is its largest problem in terms of working is he can't localise sounds in a large room yes he can come into an office and talk to you want to one but he can't go into a factory you can't go into a seminary can't go to a trade show and have a face to face meeting with a client he filed this claim he was paid for five years the insurance company put him on surveillance and then they cut him off why couldn't he he gave a into the weeds of what he can do in terms of outside this occupation is not the point the point here is this is a contract play for a long term disability claims under his khaki patient that existed on the day that that the fact that he is not in a coma the fact that he can still do other things and is like doesn't mean he is not totally but able but isn't one of the issues i mean he's he's alleging that you know one of the important facets of his job sales that he's able to do and he's saying he's unable to do it because as you say he can't localise sound in a lecture room it's difficult it's he can't conduct face to face meetings the way he used to and surely it's relevant whether it's surely his claim that he's not able to do that in a sales cont occupation the stresses of it the duties and responsibilities that he has he cannot perform his occupation in the manner to which he performed it on the day he was disabled now the fact that he can go and talk to his pilot group which is a much smaller group or he can i think the district court also noted he was played recreational hockey the fact that he could still go out to dinner with people and talk to somebody want to want is an entirely different environment than actually going out and doing something that's a hobby for example me coming here and standing before the side of the court is a lot different than me being in my closed confines of my office talking to one of the lawyers in the office i analogize this case to pretty much say a litigator i'm a lawyer but i pret i try cases i practice litigation if heaven forbid i were to contract throat cancer ok and a lot to my larynx was taken away i could no longer talk to me in there probably some but i can still write the brief i can still do the legal research i can still sort through the documents i can do all those sort of thing but if you were also talking to your you know aviation hopping hacking group it saying you couldn't touch to a jury and that would cast some doubt on whether your throat you know it thanks well really i think in a recreational conversation your honor as opposed to your occupational conversation is eons apart if i were to sit here and discuss politics with you or discuss baseball with you or discuss book with you that would be a totally different type of conversation than pleading a case before you or going out and soliciting a new customer that i meeting for the first time talking with a friend talking with a family talking with a colleague is a far different enterprise and certainly in a different venue than i otherwise would do that if i were trying to make a living so i think that is a very valuable  important distinction here because we're here to compensate him for the loss of his income due to his sickness which resulted in his disability not to compensate him because he can still talk to his buddies at the flying school or wherever he goes or this hockey player friends and that's why he filed the claim and it's interesting too that i think we have to take into account the seriousness with which here are hearing losses i mean for example if we look at the disability policy the policy contains that if you have hearing loss total hearing loss in both ears you are presumptive that's section two point five of the policy that's at issue you are presented leigh to be totally disabled i'm not suggesting one hundred percent hearing loss as a total disability in one year but i don't think we can ignore and try to minimize the fact that we paul revere is doing here that one hundred percent total hearing loss and your right ear together with the prosthetic advice means you can still go out and make sales paul revere wants my client to do as he wants and to do business under the internet mail up postcards get brochures or the district court even notice you can hire a marketing representative that's not the way the plane to build his business  face to face sales correct he also does and that's a moment that's six to eight hours a week ok so he's got four other important duties that he identified in the claim consulting meetings seven to ten hours a week programming fifteen twenty five hours a week that's his predominant duty and then two or three hours of administrative work to get better the policy requires for the definition of temple to civility that he be unable to perform the important duties of its occupation so this is just inability to perform a substantial material number of the duties in to the effect that it precludes continuation of employment in the position held before the disability ok and at the if the person who is one hundred percent responsible for generating new business to keep the enterprise or people's livelihood going this is shut down that's the most important duty or to use the haitian language that's the core an essential duty of any sole proprietor a one man corporation in my opinion the fact that he gets a phone from ancillary services where the computer programmer who works for him services an existing account and does a bug fix or does a computer software upgrade that's not new sales mr mr theory doesn't do that mr fear rini is out in the field trying to get new business and yes he does services his new business as well as existing customers but the an essential duty here is the fact that he can make these face to face sales and that is the revenue driver of this entire enterprise he doesn't do business on the internet he doesn't mail out brochures just he doesn't  please the court my name is jacqueline herring and i represent the apple e the paul revere life insurance company the district court correctly applied the controlling precedent from mcfarland in cheney and applied that to the undisputed facts in this case and correctly granted summary judgment in favor of paul revere this policy defines total disability as unable to him perform the important duties of your occupation due to a sickness or injury and what this court's precedent in mcfarland establishes is that what this policy language means is that you need to be unable to perform a sufficient number of your duties such that you are precluded from continuing in the previous ability employment and that is simply not the case here mr fewer in teeny cannot establish that he is unable to continue in his previous ability occupation in fact he does continue in his pretty disability occupation and it's not simply a gratuitous title of president he is in fact acting and actively engaging as the president of his company pan attack he continues to manage all of the business operations and he has sole authority to do so so he has in fact continued in exactly the same occupation as he held pretty disability and he is also able to perform the important duties of that occupation he is admitted lee able to perform three of the four duties he admits that he can perform his administration of work managing the company finances supervising his employees he admits that he is able to do his computer programming duty which is the core pointed out was more than half his time pretty disability and he admits that he can gauge in consultations and meetings which he described during the claim as this involves meetings and face to face consultations so he it minutes that he can engage in face to face consultations yet asserts the contrary position that he is unable to engage in face to face sales and perform his sales duty and there's simply no evidence of that he testified that he regularly on a weekly basis meets face to face with customers no distinction why he couldn't do the same face to face meetings with potential customers his surgeon confirmed that there is no medical reason that he cannot engage in in person meetings is retained vocational expert mrs bowse she confirmed she agreed that he is able to conduct face to face meetings so there is simply no evidence in the record that supports mr v statement that he is unable to engage in face to face sales work and moreover his sales duty prior to disability was not limited in that way it wasn't limited to simply face to face meetings with potential customers his sales duty as he described it during his deposition and at meetings with field representatives from paul revere included going to his client locations to discuss existing and new products with clients up sell to his current clients he described that he previously hired marketing consultants to assist with his sales duty he had previously hired an employee for a period of time to assist with the direct sales and calling that was involved he actively sent out promotional postcards to try to drum up leads and have new business these are all things  that he did that he described in his deposition or that are documented in the records so his sales duty previous ability was not limited to simply impersonal sales with potential new customers there were a variety of activities and tasks that went into his sales duty if face to face selling was required for his job an important if that defined the sales function of his job which is one of the four important duties that he identified in his claim with that make this call a five for a total disability not under the facts that are presented here y honor because i guess number one there is no evidence that you can't in fact do right i said let's assume that there was that he couldn't do face to face selling would that make this a total disability case or would that be the kind of thing that would be covered by the residual disability it would not be total disability it would potentially be covered by the residual disability clause and the reason why it wouldn't be total disability is you know what the case law says total disability means you can't continue in your previous ability occupation he has continued in his previous ability occupation irrespective of any face to face sales but if it's to face sales were an essential component like a shortstop like the barber so is it your position that explain why face to face sales wouldn't be an essential component because even if it's only one of his duties i mean if that's the essential core then he would be disabled right tony is it if if the inability to do sales precluded him from engaging in the employment and that's what the distinction is between an essential duty and simply an important duty all that being a computer programmer that's an important duty for him and he would certainly be here arguing if he couldn't do computer programming or allow i got nothing to sell so i'm disabled but you don't parse the occupation duty by duty by duty it's on the whole when we look at these important duties mcfarland says that what you're looking at is he unable to perform a sufficient number which may be just one it may be more than that but is he unable to perform a sufficient number such that he cannot continue in his previous ability occupation and mr fewer in teenie in this case has absolutely continued the idea that he could continue to work in the same occupation and simply have some portion of his sails duty that he would be unable to do and thereby qualify for total disability  is contrary to that farm and it's contrary to common sense and it's also contrary to the terms of the policy the residual disability clause is specifically designed to provide income replacement an insured who maintains the ability to continue working in his occupation but because of the residual impact of the sickness or injury suffers a loss of income that's exactly what residual disability is designed to encompass but to say that somebody is totally disabled when they continue to work in exactly the same occupation flies in the face of all of the case law as well as the specific language of the policy mr fiorentina in this case clearly continues to perform his same previous ability occupation as president he maintains the functional capacity and that's the key not whether he is in fact going out and selling but does he have the functional capacity to do so and he does have the functional capacity to do so he engages weekly in face to face meetings is surgeon says there is no medical reason why he cannot engage in face to face meetings he has demonstrated his ability to do that both with face to face meetings with customers as well as giving a presentation to his pilots group and he continues to in gage in all of those duties he continues in the same occupation he has the ability to perform the duties of that occupation and as a matter of law he has failed to satisfy the policies definition of disability and therefore the district court's decision granting summary judgment should be a twenty seven where she get a courtly says quote i know we're not supposed to read these things but as one sentence i'd like to read into the record quote mr fearing is totally disabled due to the inability to perform essential job tests to include marketing and sales writing of new software being able to service accounts on on call the basis networking learning new computer technology and attending seminars classes and working on a full time basis in a highly competitive industry which is in the quote which is exactly what we're saying here is he cannot perform sales functions i got a