our fourth case for this morning is berg against new york life insurance company  there are two key issues before the court first whether mr burbs regular job at the time is disability started was that of a pip broker at the mercantile exchange or that of an unemployed person is the district i'm confused that we're given this binary choice because i certainly understand and want to talk about the idea about when onset ought to be measured but looking  burke's history after two thousand and seven september two thousand and seven it seems that it's really more accurate to call him you know of financial industry expert or something like that mercantile exchange due to the tremor that prevented him from performing the material and substantial duties of that shop he was continuously on able to perform those responsibilities after that and  apply for other job he went to work for somebody else a few months later right no your honor he had dabbled as a hobby in electronic trading but even the insurer recognized that that didn't constitute job so the fact your uncon mr berg held no other job much less a regular job between the time when he was forced to stop trading at the merc and when he for that matter even applied for the benefits under the policy and the job when the insured is forced to stop working to have a regular job due to a disability and is never able to perform that job again is going to continuously disabled from their regular job than the regular job never changes ime i don't understand what significance this has independent of the question about the onset date if the and if the insurer is correct that the onset date is someplace in tw policy on which this terms the definition of regular job your honor it's just the amount gets paid per month changes depending on whether he was unemployed or whether he was a pit broker it does not know the i was asking what difference it makes they could have said they could have written down that his job as an astronaut so far as i can see and it just didn't affect the benefit is six thousand dollars a month that's correct yeah and that's just  independent of what they write down as his job so it seems to me that the issue we need to resolve is whether they're right to think that payments can't extend back before february of twenty ten that we've got that right we've solved the question in this case that's correct to her and certainly that's the second issue not a minimum that's the second issue in the case and looks to me like the only issue up there is so why don't we turn to that question and i guess i really have two thoughts about it one is whether there is some kind of temporal element in this policy it's got to be a condition that requires an receives regular care but does that mean that the physician there isn't a condition until the physician has diagnosed it or does that mean that's just that's the type of condition and the other question is whether there's any significance to the length of time that passed between when he quits the job because the tremor and when he actually does seek medical help to answer the first question judge with the  of condition not the duty of the person or not a trigger date that's what they call right when the when the policy defines the word sickness to refer to a condition that requires and receives the treatment of a physician in the regular  right that's exactly right and that was mr burke situation but maybe it's trevor because of drinking too much coffee or something will go away that's exactly right mr i think what i think your position is that the only  provision policy is there must be proof that he had a disabling condition when he had that at the outset of the period you know he's  that's correct your honor you know much of the doctor say about him so eventually goes to see a doctor and i would think just as citizens social security disability cases it would be of some significance if the doctor said you know when did this start happening and he said yesterday or the doctor said it couldn't be this severe if it hadn't been around for a while just dr offer any opinion about that duration yes and other evidence about duration right he's got people who testified that he had the tremor that's correct that's correct where that medical evidence there is no direct medical evidence as to what his condition was when he stopped working with mercantile exchange but there is a clear inference he had an organic condition that even the independent medical examiner who was hired by the insurance company recognized the name and that same independent medical examiner dr slave expressively noted that condition restricts or limits his ability to do his job so in terms of going back to when he left the merck the evidence is uncontroverted that it is condition prevented in the end them as it did at the time when he was seen by the physicians from writing down  information as is required to act as a pip broker in the mercantile exchange that evidence came in the form of of mr berg own testimony it was corroborated by his assistant to observe he wasn't able to write it down on cards in the pit he had to go outside the pit put the cards down on a piece of paper sometimes steady his hand his left hand that he wrote with with his right hand so there was independent corroborating information certainly that the same condition that was diagnosed when he was seen by physicians in two thousand and ten was precisely the same condition that he had when he left the floor but the issue before this court ultimately we're not asking the court to say precisely at what point in time mr berg became intitled to insurance benefits that will ultimately be the burden for mr bergen remained to show the point in time at which he was unable to perform the substantial material duties of his job and we think we can show any evidence is already uncontroverted that indeed it was when he felt forced to stop trading so you a motion to narrow the issues and that the district judge then simply ignored it why would that be a forfeiture because they then moved for summary judgment or here of course an appeal from the entry of summary judgment in their motion for s judgment they simply relied on the grounds that the district court asserted in his opinion ruling on the motion to narrow issues you know that they did not unusual procedure by the way that roe sixteen would turn on that's right they needed to raise it in their summary judgment motion if they wanted to ask this court to rule on that issue and when the time comes to rule on that issue the issue will ultimately come down to one of reasonableness even the policy itself says that if you don't submit a claim within thirty days you have to submit it within a reasonable period of time but the policy itself has a back up that policy is a back up in illinois law is a second back up which reiterate the reasonable miss concept certainly the record for this court does not allow any determination as a matter of law regarding the reasonable minutes of the time which mr person that it is claimed which did come by the way within thirty days of when he saw the that if the insurers view of when the disability began is correct the claim is timely and if the if mr bird's eye view of when the disability began is correct then the claim is not on or under the reasonable  not just a senior position but be under a physician's care i suppose an industrial accident could amputated both of mr byrd hands so he could obviously no longer write order tickets that would obviously require immediate care but after a few months wouldn't require any more care because there's nothing more of the medical profession do and care would then cease in your view would disability benefits then cease because there was no longer any language at face value and say you have to be it says what it would and i would just requires and received regular care by a physician so in the hypothetical i just gave regular care by a physician would cease and therefore i would think on your argument the benefits would stop too because the disability stops when it mon longer receives regular care by a position i wonder if that's what you really believe  a to an extent i think regular care is dependent because a regular care for example for a disabling cancer could would we just stick with judge easterbrook site pathetically though this is the person who doesn't have hands anymore and the stump is healed and the doctor says we're done so there is no more regular care is there now the person you're saying you're going to cut off benefits to well there's just this this make sense there are lots of situations in which people become disabled and they're they they don't know why and so on and they're reluctant to visit  that i think i don't think or they don't have the money what the insurance what the insurance company should want there's medical proof that this person became provision in the claims manual that was argued by mr burke in the district court that provides for an investigation an inquiry when there is no physician's care to determine what were the circumstances so that means that it's really the only sensible reading of this language in the policies to describe the type of disabling alleged disabling condition not the date when you show up in the doctor's office i mean i'm going to point out you even the district judge didn't really believe that the date you show up in the doctor's office was important because on page nine of his first  memorandum the one on the rule sixteen whatever it was he says at the top of page nine to be sure in some cases injured claimants will be unable for reasons that are really beyond their control to seek treatment for a significant period of time following the onset of their disability and then the critical language then perhaps the policies could be construed in such situations to encompass such claims from the date of their injuries rather prevent from the later date when they finally receive care well if you're going to go that far you're done i mean he says well you know this guy didn't do that and that that that doesn't mean he agrees with your reading of the policy actually i think in order to receive benefits under this  regular care by a physician you know there are a lot of no you can have an element that requires that here but if you don't get the kid here right yes that's artists if you're told you must go to a doctor with you a condition that requires if is it but people don't always do everything that they're required to do that's true they they don't put in seeking benefits under a contract that here here's the deal i mean first of all there's the required point i know the word receives is in there too but i just don't see why that should be understood to dictate onset date onset date it's a completely different question from what is wrong with you what illness you have answer essential tremor there's no question doctors have neurologists have diagnosed him with that the independent person says yes that's what you have there's a certain amount that can be done for it although not a huge amount but that doesn't tell you the onset date the onset date is a matter of evidentiary proof well the of the policies definition of total disability does that a cause of the disability karate a second just has to be a sickness of a certain type it's not just any sickness if you you know complain because you you know you have headaches every day or something maybe you don't qualify because it's trying to establish  rationally it seems to me trying to establish a threshold of significance or severity if you will but i don't see why that's not all talking about the kind of sickness we have as opposed to when did you first suffer from it well the cause plus of disability must be a sickness but i choirs and receives physicians care right right up and when i tell you about the date well i i think it tells me that before it is a total disability as defined by this policy it must yes required and it doesn't say that and we're supposed to construe these contracts against new shirts company whether it's reasonable it doesn't mean that occupiers medical care as i asked you whether whether cancer is a condition that requires medical care you would say yes and as an insurer i would then receive medical care that's that's the part that i'm stuck on it doesn't have a temporal element in there you could've put it in there you could have said nobody is deemed to be sick until they've gone to the doctor but even the district court and didn't want to say that thirty days after disability begins and proof within ninety days you would think that you would look to explicit temporal rules to find temporal rules yes and that's of maybe not simple minded that's a that's also something that we argued in mr berg of course there's no medical evidence between two thousand and seven when he ceased working as a pet broker and february two thousand and ten no medical evidence whatsoever and there's lay evidence and as well his dentist said he saw his hand me whatever the medical professional is i suppose a dentist not counting your view maybe a general practitioner does or doesn't count and you're all just does here if the policy you know we don't think that there is a question being that's we don't think there's sufficient evidence for him to prevail or that he had a condition between two thousand and seven day i'm saying oh no we agreed on a fact not mentioning the timing problem is that a correct description of what happened not quite the motion to narrow issues was asserted by the plaintiffs and to the plaintiff had requested a partial motion motion for partial summary judgment the district court made it clear that in deciding that rule sixteen motion the district court was applying the rules applicable to summary judgment so the district court determined  based on summary judgment rolls that mr berg's occupation at the time of total disability is completely irrelevant when you found your motion for summary judgment did you say that this claim was on timely because it was made more than ninety days after the disability began and we did not renew that argument because it was already presented in partial s this was not a partial summary judgment though this is the strangest order from a district court ever seen and it doesn't it six plus really not he calls it rule of sixteen issue narrowing standard and he says he's implying familiar rule fifty six principles to frame the analysis but he's not in any way handling this in fact it would be issues in fact that you'd have to worry about the summary judgment though that's the problem and so when it's not when the timing isn't addressed and you don't bring up what may in your view have been a clear winner of an argument i don't know how we can regard forfeited as the summary judgment of the second summary judgment that the basis for that it was but based on the court's prior legal rolling judgment as is required in favor of defendants in plaintiffs did not oppose the not oppose that but none of those four grounds talks about this timing point he has hidden you know bullet points practically five  to close out any remaining issues to which the plaintiff did not object ok i understand so thank you very much thank you anything further mr