of course our primary position in the course of this should be remanded under a buffet however there are two questions of law that the trial court ruled on that if it goes back under a body without the two questions of law being addressed and resolved then we're right back where we started with and we feel that we will be wasting the trial court's time and  court's time because we've you're right back up on legal issues that should be resolved in this appeal the first of those is with or resolved by the district court they were resolved by the district court adverse to dr buchanan as lays out a number of very detail considerations that were not addressed by the court its initial review in addition to that it was not an issue in a box a but as we stated in our brief under burke berg it's b e r g t versus retirement plan for pilots of mark air which is in one circuit opinion if there is a failure to acknowledge and apply the law in the review that would also constitute an abuse of discretion and it's in that context that what the trial court did was two things with respect to law legal decisions first the trial court failed to consider any state law that might have been saved f preemption and therefore applied in the case of the court swept away all state law under a general observation in the ruling that all the court was doing was interpreted in the terms of an insurance policy is defined as not just statutes but also regulations and common law can effect in a risk to review first you could have a mandated benefit which we believe is an issue with respect to the nevada statutes that control the content of the policies there are two in particular in this case one is the time of payment provision the second is the matter of an independent medical examination days within which to decide whether to pay a claim under the statute it says it shall be paid immediately upon receipt of proof of lost there's a whole subsidiary issue about what is proof of lost and what does that really mean in the context of a disability insurance policy the second we talked about that the second issue is and again the court talked about the independent medical examination as if the issue only arose in two thousand and three after the denial of the claim and while the appeal was pending in fact dr buchanan had written to the company prior to the initial claim denial in two thousand and one and questioned why you're saying the records are inconsistent why isn't somebody talking to me why isn't somebody examining me and we believe that the duty of an independent medical evaluation that is provided as a right to the insure long that is nevada revised statutes are six eighty nine b point zero eight zero qur'an six so paragraph six i have a coffee with me actually and there are all kinds of sub rules one of the rules is that i'm going there that a statute says if there's a provision in the statute that it's meant to protect and insured the pall the insurance policy may not be written or applied supplant contract terms this is the elric or more definition of total disability and that's briefed by both parties and then lastly it can involve claims processing standards under the local apply the process of nature rule and this was in on through particulars which are raised in the briefs as well first the court said to be a process of nature of didn't apply based on a california austereo which as we point out was not a process of natural case anyway senile dementia and there was a footnote that was later rejected by more versus the united american which is a key to sell the arises from accident report injury the benefits invest at that time and the disability under the disability coverage will be covered even though the disability takes longer to actually occur as a result of the process of nature the classic case would be which i've actually had a diabetic who steps on a rus nail who develops an infection who nine months later has a leg amputated and becomes disabled the rights of the disability benefit vested at the date of the injury so long as the disability that of the trial court that we believe was in error with the trial court so it was even if that's the rule i don't think it applies because of a stare which was clearly wrong but secondly he said there the process of natural doesn't apply after coverage has elapsed and on the facts of this case dr buchanan suffered a spinal inflection in a surgery and then he was either continuously disabled from that point forward because he was never able to resume his occupation in the usual and customary way and with reasonable continuity if that isn't the case then when he finally be gave up the ghost and couldn't practice anymore and  hospital said he couldn't practice and he knew he couldn't practice that related back to the injury he suffered during the surgery a spinal cord injury and every process of nature of all the ones cited  andersen versus kind of casualty the reason a process of nature rule as opposed to a more general rule of dealing with contract interpretation is under kentucky health plan versus miller the two prongs that must be satisfied are one the rule or the common law rule or statutory rule or regulation has to be directed primarily and stoli at insurance and  under universes ward with the supremes court said is that actually it is not just temporal truthy to the claim but actually in its origin so that's one it has to be directed to insurance secondly it has to affect the risk that is between the insurer and the insured the notice prejudice rule which is universes ward shares all the identical characteristics with the process of nature rule the process nature rule applies only to accident actually dismemberment disability coverage for disability or as nevada calls it health coverage it has never been applied outside the field of insurance to because it only do you have a case which tells us what areas are and what areas are not preempting by mistake i do and is the process of nature rule preempted rules i'm to insurance contracts that holds that they are statutes concerning insurance is that right that is directly  i did not know because the plaintiff has presented no evidence whatsoever that a conflict of interest affected standers decision and so if there is a case that after a body can go ahead and be decided on the merits and  this would be such a case and that's what we've asked this court to do and apparently the plaintiffs also wanted the court to reach the merits because they declined to move for a never asked for remained until this morning now with respect to i don't know whether the of talent is still arguing about whether the plan here confers discretion they didn't raise that in their argument  morning the argued in their brief but a body addressed what type of plant and first discretion and what type does not and in a body the court held that where the plan says that the administrator has the power or authority to make final benefits determinations that clearly confers discretion here the plan does quite a bit more than that granting well of course the arrest of statute and the rest of regulations governing things such as the time limits for deciding claims the manner in which the company must resolve a claim the specificity with which it mu strange yes i'd like to go back to your opening point which was that you don't want to remain and you want this court to find i think that the district court was correct because even under the abo there was no evidence whatsoever that would allow the structural conflicts of interest to be determined to have affected the coverage decision  point my point is there other than the structural conflict identified in a body which the court there sad needs to be taken into account but the court also that where there is no other evidence of conflict you know the skepticism that the bring the court brings to the review should be should be low and here given that there is nothing other than the structural conflict let me suggest to was unable to perform the job in the manner in which this hospital would like him to perform it he is unable to work as the admitting physician on nights or weekends in our practice that doesn't render one disabled from performing as an tautology just it means that he can't perform that particular job function that particular shift but isn't that a particularly sensitive and unique area that neo natal just performs leave the first look in for two months you want to like is not parsimonious it's not there's a thirty day waiting period and then he gets too much benefits but why not pay him the third month if he thought he was disabled asked for that years after the date the relevant date on which he would have had to prove disability and of course he was examined by his own doctor once and that