in this case you know agrees the professor over his was diagnosed with fiber my allergy and unum conceded she was occupationally impaired in fact in the final adverse benefit determination letter unum wrote quote circuit should follow why isn't camp and promised or and time permitting address the burden shifting arguments so this court should resolve the case in favor of professor ovitz and follow both wise and campaign promise or here's why in both of those cases you know was the defended in both of those cases unum head of discretion to interpret the benefit plan in both of those cases the disabling illness was firing my alledged in both of those cases the plans contained practice of medicine and that and that exam is the trigger point testing in both of the cases the a plan participants proof functional loss so did professor o h in addition to providing what call copious medical history as to her functional limitations professor obits deliberately you know with her appeal cardiopulmonary exercise testing c p e c p testing and that testing will say documented with data her functional limitations so the central issue that this court needs to resolve is whether the self reported symptoms clause relates to the st circuit cases beginning with boardman which essentially holds that person or in conditions medical conditions and a plan to do sure it cannot demand what will call laboratory type testing but can demand objective produce proof of loss of functionality so what it say is so far so good but then when you know who has to address that today see that testing that professor over it's provided to provide that documented her functional losses you know really changes its tune at page thirty four bits brief unum wrote quote not one of ms obits is treating physicians side of this see pet is an it entails diagnosis and it also entails functional loss and as the th an th circuit held the way the clause needs to be read in connection with at least the fire mileage or base claim it only goes to diagnosis so if the impairing symptoms are pain the claim is outside the clause other points i'd like to make relating to the seat that test isn't some sense it does provide objective verification of the diagnosis it's not directly on point like a laboratory pass but it but it is some type of data point providing additional information beyond what the patient reports or with the visitations observer or any of the other health care providers so suggesting to the court that unions interpretation was not reasonable it's an abuse of discretion and one way to measure an abuse of discretion right can be substantive or procedural interpret the plan in different ways depending on the facts particularly when you have circuit courts going against two thousand and eleven if you don't didn't like the way that the courts were interpreted in the plan you don't could have amended the plan for example one of the one that was sold to our rollins college and i would say to particular language means and the th circuit was particularly troubled about unions purported interpretation because literally read and the in the circuit reached the conclusion that the language did mean that was that any pain condition included things that are just obviously painful and debilitating could be would allow you numb to impose this limitation and cut off benefits after twenty four months so the has an exclusion or limitation the your wrists a clan should bear the burden of proof by a preponderance of the credible evidence when imposing a limitation on a participant who otherwise qualifies for benefits absent the limitation issue the facts have not really disputed in this case it's a question of what those facts add up to do those facts add up to a condition that does or does not fall within the limitations of the policy that's simply a question of interpret the limitation clause it's not a question as i see it of burden of proof and and my nd question is black which comes from some years of experience is that i can't begin to tell you the number of causes covenant sentences and the like in the typical insurance policy that cog particularly by n ox a lawyer be characterized as limitations so i wonder just what kind of pandora's going to the burden of proof that's my whole point is that this is simply a question of measuring what everyone agrees are the symptoms the loss of function the results  of this eighteen point testing and measuring not against the policy language and coming out yea or nay so i'm i'm struggling with the notion and have been since getting the secretar terms it's a limitation and somehow a professor of his had to prove what i call a negative proposition that she has to show that she doesn't fall under this limitation that these limitations and exclusions show up in these plans and i understand the servo knee and quagmire that you're suggesting might develop and because a provisional insurance law but these plans contain exclusions and limitations the district courts have wrestled with it i argued this for the st time in a case jan vs given that and the panel decided actually i think judge sally run the panel decided that would pass on it and it's come up three other times and i consistency i'm ok you're out your honor i see district courts on occasion saying you left me out too i passed on the question because i thought it was an extremely hard it and said hey this is a thorny issue how do we resolve this and i'm suggesting that the st circuit provide some level of clarity to the district courts you may not like the clarity we provide if we were to get there and it way what's wrong with the supreme court providing some clarity that it's never wrong your honor all right anything else hamilton if you could on your device a chronic fatigue syndrome depression and fibromyalgia and when you review the record you will see that during the administration of the claim the primary condition being set forth by factor as well you know in the last twenty years this court has addressed and they all three of those conditions and numerous times in the context of the risk benefit claim  as far as the mental illness goes miss ovis psychologist did file reports saying she was unable to work at all due to major depression and that would be within despite that i think the supreme one says he representatives denmark in that case this denmark argued in that case that it was under reasonable to require her to produce objective evidence of her inability to work and that's with the existence of the eighteen point trigger test so this court had that information and fun of it this denmark had that information and no need in that case or in any of the other cases that this court has decided has been found to be an objective indication of because it is a condition lacking abnormalities in blood testing or specific abnormalities in physical exam and the conundrum has always been that yes you can  you can touch the various points and say does that hurt does that not hurt and the patient can respond but you're at the end of the day you are relying completely on their self report fatigue have to be verified by that's a series of tests diagnostic to tackle examination of excel or so well this trigger point test which really is being deemphasize so arista plans have gone forward since two thousand and three the tactic painting thank you and in fact administered these claims exactly the way that this court is obstructed to do to say we know there is not objective evidence clinically on these things we have to rely on one of the functional limitations when you do it do you do it differently depending on where the claimant lives when you do you apply the s r s limitation in a different there is a direct such as whites and camp if i went before the court we would be required to do unless we could convince a court to overturn that decision so now that's like not claiming claiming to be sure by you know in different parts of the country face an inconsistent application of that limitation right yes i would say the majority of decisions your honor apply it exactly the way that we that this one single test is not a verification it's a pain index if there will out other conditions how long have you had it so it's this it's this diagnosis by exclusion and i think specifically what this decide to file his case in the northern district of illinois rather than in the district of maine his client would probably be entitled to th didn't specify this one and it becomes a real problem so the standard here is whether or not the company have made a reasonable reading and reasonable interpretation of the plan  the discretionary language in the plan specifically grants to you don't wife of the authority to interpret the plan limitation every just record in the circuit that ha has upheld the interpretation that was made in this case so it's not as if and those go before and after white's encamped so it is not if this does not apply without some support not only within the circuit but within others so i would strongly request that this court not feel that somehow by whites in camp which we think is an inappropriate decision if th in choose to go to wisconsin she chose to come here to massachusetts we think the guidance that this court have given this two thousand and three as to how to treat these conditions is is the way to go and the last thing i would say is no until this appeal has been filed have fibromyalgia become the headliner in terms of the reason for the disability the mill journalists have been there since two thousand and twelve the chronic fatigue attorney hamilton at this time if you could get your device attorney lou if you could introduce yourself on the record please the court katrina only you are the secretary of labor as  you know the secretary is here to weigh in on the question of burden shifting for limitations and the secretary's position is that the burden should rest with that plan and no judgment here are absolutely correct that easily specify it or you could ask the supreme court to take a case and come up with a national particular case yes so i wanted to hang on through this question here is just oh yeah and to be clear the secretary has no position on whether this court must decide the issue but there are do with whether it's necessary for us to decide case that that gag is important in terms of the development of the law in the corrections you'd like to see it developed my concern frankly isn't whether your position is right or wrong put the burden in this specific case it may matter it may not so the district what we know though is that the district court made an explicit ruling that the burden part of the pardon me so is your fallback position that even if the court of appeals finds we don't have to decide the issue that we should  district court ruling on that point your fallback position your honor if this court vacate it it should articulate the proper legal rule for the district court to apply  no no no no no no that's not the question i ask you why would we refrain from you're assuming that we want the question answered i don't recall your brief saying even if you don't dance or the question you should tell the district court that question is still open i see five minutes remaining yet your honor the secretary has has has no and to the district court to determine in the st instance whether the burden shift impacts the case and that so i also wanted to address just the latest nd question understanding who has to crew what and what provision actually is so that confusion already exists we have east limited district courts some that assign the burdens of the participant some to the plants i pardon me but i'm not sure you quite grasp the point you think it's self evident what a limitation is however insurance policies have a lot of different terms there is a cagr ridge provision that may be subject to limitations but still considered part of coverage then there are x solutions then there are endorsements i just decided a environmentalists insurance case where some endorsements are labeled limitations on coverage that is granted some and doris mints are labeled exclusions and none of them are contained in the basic policy so the pandora's box that judge cellier is talking about is very real not only is it a pandora's box for receipt cases but it's a pandora's box because your underlying principle has to do with the common law of the insurance and different states have different common laws of insurance ok your honor yes you're right and i believe the case you're referencing is performance transportation so ok i understand the question now the that the issue when man terms of whether that herman is a term of coverage or an exclusionary term or an endorsement this is that this would be a task reports that that would not be new upon language of the policy characterized that's correct it is a yes and we need a permission of the limitation or a term of coverage or an exclusion depending on how that are function fairly specific definitions and have exceptions within those definitions which a lawyer could very easily and probably understandably characterize as limitations and i think w limitation or an exclusion and that that is not a test that need addressed here because it is undisputed that the s r s limitation is a limitation the question though is whether you treat it i'd like to make my colleague mr hamilton to be insinuating at some level that one of the concerns of the planted you sherry about these self reported symptoms base claims is that  some of the claims are fake maybe maybe in some instances but not this case is i would like to remind the court you don't have three if it's doctors it mitt or concede  based in reality on this claim the other point i'd like to make is looking at the self reported symptoms language it what it what it excludes is claims that are not verifiable using test procedures or quote clinical examination standardly accepted in the practice of medicine and as i repeat it is the nd circuit found the th circuit found trigger point testing is a clinical standard exam there's other well known illnesses alzheimer's you really can't diagnose that pills after someone is dead and you look at their brain under under a microscope same kind of thing for her chronic traumatic encephalopathy can't really make a definitive diagnosis until after death but those are types of medical conditions that i think we can all agree that are diagnosed quite likely i could probably go on and on and name a number of other ones but the point is that universal language  uses this term clinical examination standardly accepted in the practice of medicine and that does not mean that the claimant has to show a laboratory type test for some condition for which there is non thank you thank you all thank you that concludes the arguments for today the session of the honorable united states court of appeals is now recess until the next session of the court god save the united states of america and this honorable court counsel you make disconnect from the meeting