good morning ladies and gentlemen and good morning to judge row here who as you see is here by video our first case for this morning is carol chaney against standard insurance company fifteen one seven ninety four so we're ready to hear from his hearing good morning your honor may it please the court my name is jacqueline herring and i represent the a palance standard insurance company and the arista land this is in a receipt disability case that was decided on a stipulated record under bill fifty two for the parties cheney's claim for disability benefits was denied by the plant's claims administrator standard insurance company the district court reversed that decision and determined that ms cheney was entitled to benefits under the plan so i have one maybe very basic question for you which is what in your view we're supposed to make of the time between december nineteenth or twentieth and january third since as i understand cheney did stay in the payroll through january third as a regular in flight when he used the word active i know that's but but as a normal employee and so it seems to be just this black hole wouldn't in your view but i wonder what you have to say about that well under the terms of the plan it's very clear that coverage terminates when active work ands and active work from his cheney and no later than december nineteenth and that's absolutely undisputed so there is what there could need for forgiveness and by the way there is a one or two second delay so when i step on any of you including my beloved judges please forgive me but what does the phrase with reasonable content continuity mean and the definition of active work because that seems to indicate that there can be some breaks in the work schedule and yet the employee is still actively have work that's what i'm having a problem with reasonable continuity generally is considered a full time under this particular plan full time employment is not required in order to be a member what is required in order to be a member is working sixty percent of the employer's usual schedule so the reasonable continuity and again in in this case that's even a little shaky prior to december nineteenth because there were periods of time where ms cheney wasn't working at all but back to your honest question about that that gap that's a key problem for miss cheney in this case there is absolutely a two week coverage gap there is no question that she performed no work at all whatsoever after december nineteenth and the plan well i had exactly the same question because if it wasn't vacation w paid her they treated her like a quote unquote active employee why he isn't that enough because you know now the plan has a very specific definition of what active work is and what current players may decide for purposes of their payroll status make someone and active employee and how they're going to code that employee for purposes of payment can't override the clear terms of the plan and under the plan active work specifically requires performing the occupational duties of your occupation so are you saying that this couple of weeks is sickly or i mean it she did get paid so if the inference isn't that it did it shows that she was somehow still an active work status i just have the feeling it must be something else and i'm groping for what that is and i again i think that this plane of spurred to establish what that is and one of the problems here with the district court's decision is the district court specifically acknowledge that there is no evidence in the record to support that this cheney was on a vacation during that two week coverage gap and the court unfortunately went on to say but there's also nothing to dispute it putting the burden on standard in the can't be continued during a leave of absence period however it's on this feud that is cheney's leave of absence didn't start until january third and a subsequent leave absence doesn't refile high coverage that is already terminated once coverage terminates the only way to become a member is if the employee again performs work a past december twentieth that is coverage continues during one hundred eighty day waiting period could could we have firm on that basis that's again an inherent problem with the district court's contradictory findings here what the district court found in extending coverage during the nine month leave of absence which again the plan specifies that a period of disability is not a leave of disability is not only that that absence under your reading time off cannot be characterized as a leave of absence unless the employee is capable of working during the leave also be read to mean that we do not automatically characterize a period of disability as a leave of absence unless the employee actually takes an official leave of absence you know that sentence is not what i would consider a model of clarity and i guess i'm maybe not sure which sentence the court is referring to a period of disability is not a leave of absence so are you saying i'm looking also back at footnote ten that there are some kinds of leaves of absence that this covers but the disability is covered under let say the one hundred eighty day benefit waiting period so as to keep the two concepts separate yes there are a few different ways and again the the plan spells out exactly when and how coverage terminates so what are you trying to distinction between determination of coverage december nineteenth and then this one hundred eighty day benefit waiting period because i'm not sure how they inter the one hundred eighty day benefit waiting period is the elimination period essentially for the place where if you are disabled you have to be disabled for an entire one hundred eighty day benefit waiting period before benefits become payable so that would require again a finding of disability during that one hundred eighty day waiting period and i take it that waiting period begins on the date the person becomes disabled and  i'm not sure whether that means employment terminates then or the person ceases to be a member than or whatever but it must be that there's a trigger date for the one hundred eighty s that there is a trigger date for one hundred eighty days under the most simple a scenario if someone got in a car accident where we would have a very specific date that would typically be the date that would trigger the one hundred eighty days it's also a typical what we see in these cases is that there's a day where the employee ceases work because the employee is unable to engage in active work and that's you know there are definitional opposites active work means performing the duties of your occupation and disability means unable to perform the duties of your occupation and when the district court extensive coverage under the leave of absence theory the court found that she was not disabled during that period of time because a leave of absence is not a period of disability and yet and also determined that she was disabled during that period of time for purposes of benefits and that's one of many inherent contradictions in what the district court did in this case so could we talk about evidence how what evidence is there in the record that she could perform any legal work following her spinal surgery if we read the definition of  occupation as you suggest what evidence supports a finding that there was a job within the scope of her law license ichy could perform if we're talking about again this surgery is nine months after her coverage terminated her last day of active work and when her coverage terminated it was december nineteenth so she's no longer covered as of the time of that surgery and i do think the evident it's in the record and there isn't much after that point because it was so far into the future but what the doctor's opinions were was there would be a period of time after recovery from surgery where she would not be able to work but not a full one hundred eighty days that would satisfy the benefit waiting period so there's two problems number one she's no longer covered at that point but even if she were what the medical doctors  is that there would be yes a period of recovery but it would not exceed the one hundred eighty days she never went back to work and that the nine month extension of coverage in this case is also factually unsupported miss chaney's leave actually ended at the end of july it did not extend a full nine months there's absolutely no evidence that extended nine months the plan would potentially cover a leave of absence that extended by months but there's absolutely no evidence that it's cheney's leave extended beyond july thirty first so again there are multiple problems and contradictions and a complete lack of evidence for the district court to continue that coverage and these the concept of active work and disability and then also infected how the district court consider heard what the amount or h benefits should be calculated benefits are calculated under this plan as they typically are based on a percentage of the employee's previous ability earnings and under this plan previous ability earnings for the partner stopped active work and when the leave of absence started on january third that's the second intervention because that extension of two weeks is necessary in order to jump into a year where she had much higher earning abs obviously obviously if it ended on december nineteenth then you go no one of the things that confuses me this is coach twice she ran for public office  first one in twenty two and one in twenty which i don't want to get personal but i know what it's like to run for office and try to practice law and and be elected which congressman or something so she's actually working and there's so little together to be at least on this disability because he was compared to a job that she is a very hard working heavy litigator et last working as far as the what what the what the evidence shows and what we argued is that she was in fact taking time off to run for political office not due to a  disability but again not that impacts the actual last day of active work december nineteenth of twenty eleven all right thank you very much thank you well i'm not sure it is because i mean this is a benefit policy like all others and the burden was on ms cheney to show that she was entitled to benefits and i don't see where she showed that at the relevant time she was capable of actively working and i did i'm not sure i agree with the magistrate judges assessment of the alleged ambiguity of many of these governing provisions for example the meaning of active work the meaning of some of the other key terms to begin with mr cheney circles current problems are next problem problems go back in the record over ten years but she was working nonetheless she was it was problem she was seeking treatment during that time she was a parking brake she was working and she stopped and she said she was disabled from working after december nineteen payroll and i really hate to adopt a rule that punishes an employer for simply paying somebody even though maybe it didn't have to seems like a very undesirable rule by kirkland should've issued a memo saying effective december twenty third at the beginning of your waiting period or something but know and understand this weird gap and but i don't know why it's at translates into the district  courts rather facile assumption hope people take vacation all the time she must have been on vacation the district court rightfully points out that ms chaney the way that she applied for benefits in the way that she is not the same as active work under this policy billable hours or just hours that they could build a client she never says that she wasn't actively at work actively work because under the definitions in the policy actively work includes regularly scheduled days off policies or vacations but it also says that those days count only if you're capable of work during that period of time and here's the problem and she affirmatively says that she isn't here's the problem with that would have to agree to policy that way and it's most certainly not if you print out speak for you start the vacation that you can't work that's surely a different situation from the one that you describe where you're unfortunately you know hit by a b while you're off on vacation and it takes you a little bit of time to get word to the plan of a reading of that policy under that strict definition though would invalidate no matter when you said at the problem with carol change his condition is it was cumulative it happened over years and years and years there may not be a day that she's just if we became disabled but she said there was that's that's process the and why is she not you dish only s stops from claiming her disability began on any date other than december twentieth is standard and correct that she asserted that as the date of her disability when she applied for alleges that that day is the day that she became one able to to say to submit any more billable hours at points in the record she also says december thirty first when she first submitted her her application and kirkland says her last  acting work as january third well it doesn't really say that they paid her up until january third maybe they completed a paper here and i don't know why but they but they draw a distinction between payment and active work which is surely correct because you're not actively working when you're on vacation you're not actively working when you're on sick leave you're not actively working in a number of ration so it's not too hard conceptually to see the difference and i understand but what she's saying is that she's disabled that's not incompatible with being unable to work and that's what this court is out as well she could have been disabled in october prior to that she could that she didn't say she was she's making the point that she really cannot so much a sit at a computer and write e mails to people that sort of bare minimum of the kinds of things one does one has a legal license forget about the litigation partner business  which seems to me is inconsistent with the policy as well and this court can still affirm if they believe that she was disabled on december ninety people on what a prick if forgive me but bottom line on what date did her disability begin and what is the best evidence that she could not perform the material duties of her job as of that date bottom line bottom line she became disabled like we before december nineteenth she is disabled on december nineteenth but under the terms of the policy her disability begins on january third because that's when she transitions interactively this court could find  a given that she indeed meets the definition of disability in the policy i can see what you're saying there there perhaps is an argument we'll think about under the policy for january third but there's also a challenge to the fundamental question whether she really is in fact disabled within the meaning of the policy at the relevant time not nine months later or some future time so if you could say a word about that  which are basically branching tests and because of that finding her physical therapist that's when maybe you should pursue additional treatment she goes she stops work she stops work because her primary primarily activating position is sitting at a computer that her from their pet is torque and she can't she has to meet deadlines she can't really adjust she's tried to get out of combinations and they don't work so through the record don't she goes to physical therapy and beginning of january she goes to  johnson and she goes to visit there through january march april she goes to talk to johnson and april dr johnson immediately prescribes a twelve week intensive paint program now we're a few months after her disability but this is all in line with what  saying and it's so it's your basic position that the i'll just call it comments about other things she was doing are not properly part of this record whether you know her bronze for public office or up their position she was taking just have to be disregarded disability of the policy and ability to do her own occupation and her own occupation as a lawyer i understand your own occupation as a lawyer but i'm thinking that the things you do is a lawyer are office kinds of things so if you're an office assistant and you can get sat it raises a doubt in my mind that you couldn't do lawyer things to know absolutely but her runs for public office are not to do not contain the same material  allegations that she can't be a lawyer it's in line she's trying to change her profession she's trying to do something else seems like it's way worse maybe i just have a different image of running for public office that i don't know i don't believe it's quite standing up during the debates that the presidential nominees are doing this but no i don't people run for school board but still it's a demanding activity and as i understand it it is she was able to modify  schedule work on her own terms that type of thing her problem is that she can't be that much she can't sit at the computer for eight hours a day she can do it for an hour or two but her law practice required that her employer require that and that was that that's the ultimate issue here can you also contend that she could not concentrate mentally on complex matters would you would you state that i'm running for office  in a contested election a person does not have to concentrate mentally on complex matters of course she has to concentrate mentally but it's a different concentration and it's one that she tried and ultimately she felt this was something that she was unable to do now her failure was made clear by the election results but even if she had been told her she underwent surgery in august if she had won the primary she would have probably had to drop out of the general election she was in a cervical collar restricting her motion for over three months the surgical report which we didn't even get into found findings that were more severe than the findings that dr ta ta and dr johnson originally found and that has to be mean that explains some of her pain complaints that explains why she was saying this is so bad that the surgical procedure that they originally were going i think she was supposed to undergo was it a fusion so fusing i realize they took a disk out too but i think that that's i mean that's something that's that it's rather rare it was unexpected and it's a it's a very severe surgery for which she's still just she's still undergoing treatment and she's still recovering and she's still unable to be a lawyer which still was set up so that you would be able to back a year which would probably almost always be a better earning year this happens to be the opposite that was the year that she was doing or they were that she trying to get some political office there and the you know i think you mentioned she had other absences for whatever reason maybe it's ability so she had a bad year in a relatively bad year in two thousand and ten that that's a very important step when you're talking about which which benefits he's going to get into it without that it's december nineteenth without that jump and it's an anomaly under the policy partners there's no or there's no difference in the way the policy is written between equity partners and not equate partners carol cheney was an ionic what a partner so it makes sense for equity partners to relate back to your tax returns they have to finalize everything you see what you your equity sherry's that type of thing for all intents and purposes carol cheney was that she was a salaried attorney and her salary at the date that she left was the salary they were trying to get benefits on and that she and she's entitled to benefits  is she was in this position partly because of her disability partly because she couldn't be for many many years a reliable employee she was a reliable enough to kirkland compensated her very well but she had to work from home and she had to have the economic accommodations and for whatever reason she was elevated to partner but that her elevated to act the part of her compensation was basically on a salary basis and i don't know any of the in terms of sides that in the salary and that's what i it's very likely that she was working over and above the billable hours to the client and and that in another itself would along with the policy definitions could extend coverage to change her thank you very much right thank you very much mr reynolds your time has run out and sharing that if you want one minute i can promise not to exceed it i will give it to want to start first with the concept of billable versus non billable hours the kirkland records are very clear and plain to be added in response to defendant's proposed findings of fact that kirkman's records include all hours both billable and non billable that's the way their records are set up that's what's reflected in the record the concept of you can be disabled in still able to work while that may work in some other this plan those are mutually exclusive active work is defined as performing the duties of your occupation disabled is defined as unable to perform the duties of your occupation under the terms of this plan you cannot be both disabled and in active work status cation does not extend