court review of the risk of regulated long term disability benefit claim decision so we have multiple levels of standard of review to discuss today this afternoon in my opening argument i'm going to give you an overview of the appellant's position will turn then to the facts because the facts are very important in this case as revealed in the administrative record and will discuss the standard of review this big birds of review and come back to the errors committed by the district court so to summarize our argument the district court properly chose the arbitrary and capricious standard of review that committed to interrelated errors in applying it st the district court heard when it misapplied the standard deny the district court or when it failed to require bernard to satisfy his burden for proof as to eligibility for benefits and this is the ultimate error in this case the ultimate question is whether the court heard in finding for bernard because bernard failed to establish on the administrative record he was on able because of a disability well under the care of the physician for that disability or illness to perform the duties of his occupation as of his last day work on his last day or bernard could and was performing the duties of his occupation in the administrative record shows this on his last day work bernard was not under the a condition that he claimed disabled thing on his last day in work and during that twenty six years of his employment as and in his occupation as a nurse anesthetist him he performed his students to the satisfaction of his employer and exhibited no limitations will talk more about the interview to the employer in the administrative record renard can point to no limitation that prevented him from working on his last day to work bernard must terminated from employment not because he couldn't perform the duties of his occupation but because he violated the terms said of his employment agreement and a work rule he used drugs on the job on that day the district court concluded that there was a pre terminations of drug dependency and from there to the conclusion that that diagnosis equals disability this is a classic case has been presented many times in this court diagnose this in search of a disability rather than a complete record of disability showing limitation and ability to perform the material in substantial duties of the claimants occupation is there any just relax before the last day of employment there is no evidence in the administrative record that he had relapsed prior to his last day other than his self report there's no medical evidence to support that he was rusty he was seeing a physician because he was dealing with the problem but i thought the administrator accepted that he had a relapse  the subsequent medical records also depending slowly upon his reports there aren't medical tests there aren't the only test of whether he was using drugs was the one that was taken on the day that he was he disabled correct and did the administrator say that he was terminated do serious concern for safety of the patients he did know the that he was reports and reported that he had been using syringes and they suspect suspect that he had been using drugs she said later in this interview he never said how long he was using them he just admitted to that day so they are not sure if it was just a day or longer because there were no signs prior to that day that he was using drugs and if there were any signs they would have done the random drug test and of positive he would have been terminate that the administrator doesn't dispute that he had relapsed earlier so we're taking that as a given and then the december denial letter says he was terminated due to his employer serious concern for safety of the patients so i there in the period before the last day because he had relapsed and was using sentinel why isn't he disable because there was never any limitation in his ability to perform the due  material and substantial duties of his occupation even though it even though he presented a serious concern for safety of the patients there was no limitation on him i think you have to look at the full statement  of the employer and i quote from that she said his drug use seemed to come out of the blue that day as there were no signs at all that he was using drugs there was no indication of drug use there was no indication of limitation he was working to the truck driver had diabetes and because he had diabetes he couldn't get a cd a license to continue to be a truck driver but he otherwise said there was no evidence of limitation of his function or ability to work as a truck driver or is it something else and our view is that this is like anthem versus reliance standard this court's decision in two thousand and fourteen there is no evidence justice in that case where there is identification that this is a limitation on ability to work as a truck driver here there is no evidence of limitation other than he got caught using drugs on his last day of them claiming that he was disabled previously there's no limitation in his work record his work record was that he was satisfactorily performing and there's nothing in the medicine medical records in his application he pointed to treatment by doctor and i'm going to mess up this name chauffeur sister in columbia who apparently saw him on march th two thousand and seventeen and in the application for benefits he said that show for sure he went to shop for surgery and told him or was being treated for drug addiction position to get a refill of his blood pressure medication my son apparel and because he had a spot on his face that he was concerned about show procedure gave a complete interview of them and in that interview  mr barnard was asked about alcoholism he said he had previously dry for greater than ten years no concerns currently had a history of intravenous drug use clean now or greater than ten years no concerns currently and then on page three hundred and thirty four of the and x well you into show procedure has a narrative about the other conditions i mentioned and concludes the introduction that he had a part a physician who generally once a year for general examined what worked and when necessary in between but rarely would utilize it had been greater than a year since he had last seen his prior physician he had no acute concerns at this time so that medical evidence coupled with the employer statement or the critical facts in this case there has to be evidence of limitation be on a particular that on a particular day and the reason he was fired wasn't because he was a drug addict was because he used that day and that violated the employer's work policy so i guess on that he was not disabled even after he was terminator at the time of terminations because you say he was fine to work if they didn't have this policy would have been fine to have a drug addict carrying out his duties been position it wouldn't have been fine from a public policy standpoint but it would have been lawful under the group insurance policy well i think fine i mean he would have he was not the same bill from continuing in his position even though he was a drug right this that's why he's a procession is this it's the same position as reliance standard enhance it versus reliance standard the truck driver case he could have driven a truck evidence she would have said ok did they have any reasonable basis to support this benefit is the benefit decision and the answer is we did we had the employer interview we had no contemporaneous health records of treatments which basically  goes to the fact that in your clients do this man's competent medically competent to pursue his duties no your honor the view of the client is that under the terms conditions and provisions of the group insurance policy in the welfare benefit plan he's not entitled to benefits which is a different question well that's it isn't it the same in the sense that he'd be entitled to benefits if he were not competent to keep working he might have been entitled to benefits if he had established on the administrative record that there was a limitation in his ability to perform all of the material duties of his occupation and that evidence was absen t i wanted to reserve two minutes for rebuttal and if there are no more questions i will say that two minutes reb tell there's something going on with your camera that is causing it to move about which might provoke dizziness among your audience members  it would qualify for benefits under the policy if he was unable to perform the material and substantial duties of his job which of course he clearly if that was in that he was would only be able to do so in a manner dangerous to the patients so therefore clearly he would qualify under the under the terms of the of the policy statute in this in these cases requires  the administrator if you did not claim to give specific reasons well in this case they didn't give specific reasons but those were just not good reasons not logical reasons the st reason they gave was well he didn't go to the doctor after the relapse until after he'd been fired so there berea no coverage well under either standard of review in this case they have to make have a denial bit has recently explanation well no ro reasonable person would consider that st reason a reasonable explanation to the not benefits the claim was that he had relapsed on bet and all that made him dangerous to his patient and end it there for a qualified to relapse certainly occurred while he was employed and we know that not only based on his testimony but on the fact that they gave him a drug test w any injuries while you were working so therefore you had no one parent and that goes into what you were just discussing craigslist lee with mr green it seems to be their position that he could still be working people who intentionally buz drugs second day i don't think i have seen one that particular language there's two policy see a short term and longer the short term policy doesn't exclude i think it would help i think that good far as i know you could put in a policy in the policy anything to do with drugs were not covered but they didn't do that here in the of course the long term disability policy provides twenty four months of benefit if he's disabled from drug abuse ok and he made the application say i've been disabled because of the drug abuse i'm considered dangerous to my patients i can't work as a the it's interesting that in the all the briefing that we've had on this case the employer has the can say life is not referred to this just at the end i think they refer to this twenty four month period for drug abuse they also have never made any response to my example of the truck driver who has the billing vision they do give an example in  their in their reply brief they said well this is like a construction worker one time only consumes out all and then gets fired the evidence in this case is that mr bernard benet addicted for many years it suffered from this in this condition he had a relapse and that he then was terminated as we've discussed and in their denials they were required to give specific reasons they never said that he didn't have this history of drug abuse and drug addiction and if they had it certainly refuted by all of that the doctors including the doctor  any reasonable person under either standard of review that we have any reasonable person would have to say that this person was covered by a policy that paid twenty four months of  and the twenty four months under the long term disability policy and taken in question strata are not required to use all of your time how much money are we talking about total you know being about two hundred thousand dollars altogether just because he was a fairly he was a higher wage high income earner and if you put the structure in a long term disability policies together when the ninety nine occupation it is true that mr barnard was terminated from his job because that was a rule that his employer had the question that the company had to decide in the court had consider is not whether he could do his job but whether he could do his regular occupation in assessing that question you have to determine whether there are limitations the policy definition of disabilit is your considered disabled when we review your claim and determine that due to your sickness or injury you are unable to perform all the material and substantial duties of your regular occupation and regular occupation isn't the particular job duties no insurer ensures jobs they insure what is the regular occupation in the national economy and although he may have been drugged there was no evidence from his performance as described by his employer that he was not performing the duties of these occupation as the employees are expected as to the issue that the court brought up about an exclusion for intentional of drugs i've been doing this for a long time and you do not see that in disability policies you do see that occasionally an accidental death and dismemberment policies where a death caused by  opportunity to argue today and we request that you reverse the district court in their judgment which seems to be like very well gentlemen thank you both for your arguments the case is submitted and the court will file an opinion