good morning mr adam will hear from you first good morning please the court counsel denise tattered representing rodney waldock this is a case involving mr wall docs entitlement to long term disability benefits  self insured disability plan mr wallach has had diabetes since age ten has been on insulin for over forty years while diabetes is a serious condition for any diabetic patient  is not the average diabetic patient he's had many complications because of his diabetes including hyper hypoglycemic unawareness erratic blood sugars neuropathy  and most importantly he's developed severe anti bodies which a may all enter canal a just described as the highest level of antibodies he had ever seen in astronomy plus years of practice several f opined that because of those antibodies it could be the cause of his or radek blood sugars and the difficulty that he has controlling them because of this he's needed to monitor his blood sugars very frequently and in spite of monitoring them frequently they're still out of control and affect him significantly his doctors even while he was working at medtronic warned him for several years that he needed to keep a stress down  because it would exacerbate his condition and they took many steps to try to keep him working even going back to two thousand and four there were accommodations being made or requested and including a reduced workweek after he stopped working at medtronic he was then it referred to the advanced diabetes clinic at mayo clinic medtronic approved and paid him long term disability benefits through may of two thousand and ten and they found that he was not able to do the duties of a buyer position and specifically included multitasking interaction with management and peers budgeting meeting deadlines and attention to detail social security also found him disabled and that his impairments could reasonably be expected to produce the symptoms that he was having which  included problems with mood demeanor and productivity the administrative law judge found that mr waldock had a substantial loss in his ability to meet the demands of basic work activities on a sustained basis yet with the review at that time came up with only four jobs that met the criteria and those were jobs the type of jobs at medtronic it already determined that he could all four were either at the same level or higher position than then the buyer position that trying to kids argued that there are all sorts of jobs identified in fact there were over one hundred jobs identified by the vocational consultant but all were eliminated except for four and as i stated those four were not the type of positions that mr waldock would be able to perform based on medtronic former decision medtronic could not acknowledges at least in its brief that he would need to work in a last restful position but this is not what the decision by hartford in the reviewers was based on and that was not taken into account by the book ational consultant no one paid any attention to this when this was decided that the vocational consultants decision was inconsistent with the prior decision made focusing on the standard of review medtronic has the burden showing that the default standard of review does not apply no one that was granted discretionary authority under the plan made any of the decisions here the plan has a provision that specifically addresses who has discretion and none of those individuals made a decision there was an affidavit provided by lor earch will late in the game during the summary judgment briefing claiming that roger chizik who did have authority made the decision there was the record is a statement yes we agree that trying to kid minutes that hartford basically handled everything handled all the claim claims handling made the decision made the recommendation to  medtronic basically rubber stamp that decision medtronic argues that it should be able to rely on a third party administrator however the cases that support that is where where the employer has given the authority full infere review hartford will not take on that responsibility the tronic cannot argue that it can rely on hartford to conduct a full and fair review when its own agreement with hartford says otherwise or that it's in the administrative services agreement and i don't have a cite in front of me but there's an administrative services agreement that we have cited to in the briefs which right where where would i go to in that agreement well there there is with it i mean it kind of identify it's a several page document and it goes through identifies what hartford will do but there 's a page that we cite to our brief that specifically say that hartford is not the fiduciary and that it will not be conducting a full and fair review that that is medtronic responsibility will they didn't do that there's no one there's nothing in the record that indicates that and in fact if you look at we've cited two showing when only the medical records it states were sent to medtronic on the seventeenth of august by u p s a decision was already sent from laura earch will going back to hartford the following day at two o'clock so even if they had received the record the next day there was very little time for anyone to look at it analyze it it appears to me that all they did was review the recommendation a four page recommendation from hartford and said yes we agree and again all that was according to the record saying they have to write a full opinion well in again i say that in order for a court to look at whether the party who has discretion and be able to defer to their decision to document what they've done and there's just no nothing in the record here that shows that there was anything done by men tronic normal you know in particular by anyone that had discretion granted discretion and or the  decision in the record there has to be something that shows what they did and in if you look at for example the wilcox eighth circuit case that says that that  plan administrator just cannot accept what a reviewing physician says that they have to show that that decision logically flowed from the evidence in the record there was nothing that harper didn't even do that on the final review it was no analysis by hartford they basically accepted the last review by dr cooper and said we're going to follow this because he reviewed all the medical records there was no an analysis by harvard or medtronic s to whether that decision by mr cooper dr cooper logically float flowed from the evidence or whether it even addressed all the issues it should have address assistance in investigating in gathering the and retaining of course its its obligation to make the final decision w nothing wrong with that but then there has to be something that delegates all of that authority to a third party administrator there are many cases where with the fully insured plan the employer has delegated everything to the to the insurance company and the insurance company has the ability to make all of the decisions i don't care about delegating decision making i'm just talking about assistan as arguably occurred here with with hartford in this agreement with hartford to do this work and then make the recommendation for the plan administrator to to consider  i don't think there's anything wrong with that your honor and i think that is typically you know happened here well again the problem here is that there's an agreement between hartford and the t that medtronic would be conducting the full and fair review for the final appeal that did not occur and also the as i mentioned the wilcox case requires that the be some analysis that you have to determine whether that doctor's opinion logically flowed from the all of the evidence that was there and we say that it clearly did not and i've used up the time i have and i'll reserve the r because it came to the reasonable conclusion that he was not totally disabled that he was not totally disabled from performing any occupation in the u s economy the plan clearly gave metron ik that discretion it also allowed   ic to delegate functions to a claim in a straight or in fact the plan itself which is attached to our brief as an addendum goes into great detail about the role of the claim administrator it clearly provides that a claimant will submit medical evidence in support of their claim satisfactory to the retain claimed and straighter so that's exactly what happened in this case metron ic reserved the ultimate decision on appeal for itself at the same time it retained hard for it to perform claim administration functions the record in this case stands five volumes they did they gave mr waldock multiple appeals multiple opportunities to present medical evidence in support of his claim  submitted that that evidence to three separate independent and a chronology board certified into chronologists who worked with the expertise to determine whether mr waldock diabetic symptoms rendered him totally disabled they reviewed that evidence in detail the record is clear and in terms of explaining the rationale for the decision each case the hartford first of all documented its work up in detail daily notes of its activities it assembled all of the evidence it obtained conclusions from the medical reviewers and it communicated the results of that investigation to metron ik a decision was made by metron ic and that decision was communicated detailed letters by the hartford setting forth the rationale in full compliance with the resort players when when you talk about communication in you say that hartford communicated with medtronic or you just talking about the final recommendation that's been described as the august seventeenth transmittal or are there other communications going on as this evidence is coming in and there's sort of back and forth yes your honor the  claim was first denied back in two thousand and nine that led to the first appeal the an appeal record was assembled an independent review was was retained the independent reviewer and hard for it came to the conclusion that mr waldock wasn't entitled even to the first level of disability the any arc level that went to reversed and said no we are willing to give him his own op disability based on his inability to perform his own work look at metro what kind of review went into that from medtronic that was in june of two thousand and ten and the record clearly shows that at that time medtronic got a ten page summary of medical records from the hartford which in detail summarized medical reviews the steps that were taken the rationale presented that the record is clear that  discuss the claim and the the record is always shown in the hartford's file notes that medtronic made that decision to reverse own knock over their recommendation and then to continue the any ark question for analysis so between between that decision and then we'll call the eight hundred seventeenth eighteenth this is and was there communication back and forth between hartford and metron ik about updates on this in other words is there any other evidence of chael and in the hartford as the claim was being examined by the hartford but during that time really the work was being done by the by the medical reviewers collecting the records getting the records to the reviewers obtaining the the occasional expert analysis they were all together three independent reviews here by and a chronologist as well as two vocational analyses by two different location all experts so that was really what was going on during that time  in two thousand and eleven which is what this chatter it was referring to when the final appeal was being decided the record shows that there was an e mail on august sixteenth of three twenty two pm with a four page update of the summary that is not the only time that metron ic reviewed the record in this case they had that prior ten page analysis which was complete as of that time there's never been an  allegation and this chatter has always had that ten page if you there's never been an allegation that meant that hartford left information out it wasn't complete in that analysis that analysis was clearly presented to metron ik and they they i think the most important thing is that they got a four page summary by e mail on the sixteenth which is two days before research will commit communicates to the hartford quote we agree with the recommendation to uphold  eleven pm i'm sorry at two pm on august seventeenth and the decision was made about twenty four hours later on the eighteenth so they certainly had the opportunity to receive that file during the twenty four hour period the i think the most important thing is they delegated the claim preparation function not the ultimate decision we don't claim that metron it delegated to the hartford the ultimate decision t fiduciary decision to make a decision that was clearly reserved to medtronic is that in the agreement between medtronic and hartford yes your honor that agreement there is nothing inconsistent between the plan itself which details everyone's responsibilities details term disability benefit administration agreement yes your honor it is in the appendix at sixteenth ok what page of the agreement not the appendix page but the what page or paragraph of the agreement clarifies that the the ultimate decision remains with medtronic and its responsibility to evaluate  all import employees from a claim is denied will be informed in writing that they have a right to appeal to you for additional review and final determination of their claim all denials will direct employ to submit the appeal in writing and any additional information to us t hartford for receipt and acknowledgement on your behalf upon receipt of an appeal we will review any information received and evaluated according to the terms of the plan so there's a direct incorporation of the plan in agreement it's not as though these documents were written you know ignorant of each other so if it tried like are you still answering a question it goes on it specifies that if the appeal requires additional information medical information or specialty review we the hartford will make reasonable and good faith attempts to obtain that information whether or not we have all the in to subpoenaed information we will provide you with a written recommendation within thirty five days and so forth so the bottom line is this is  agreement it's clearly written fully cognizant of the terms of the plan and intended to be consistent with the plan i guess and also refer to the last paragraph where it says we are not a fiduciary and we do not make final claim opinion and say we agree but we found nothing in the case law and nothing in a risk that imposes some super obligation on an employer or plan sponsor in this case to second guess the judgment of the retained administrator i think the case law says that if if it was apparent to medtronic from looking at the record that the administrator dropped the ball didn't address a key piece of evidence made some you know clear error  would be subject to question if it rubberstamp that decision here there is no evidence to that trying to cause an obligation even to review the whole record that was before archerd i think the record is that they did review the record they they reviewed a summary of the certainly a sophisticated employer there is nothing that precludes an unsophisticated employer from having the same system in fact we would want a employer to do wouldn't try to get in this case hire professionals to federally evaluate the claim when you say there are some authority that says that under certain circumstances there might be a problem with rubber stamping if they had reason to believe the admit what authority did you find well i think the only case that  cited by the plaintiff in this case that says that is the wilcox case all right so you're talking about will come yeah but this this case is extremely different from wilcox there were multiple errors in that case in fact the court in that case points out very clear errors and omissions by the administrator that were overlooked and were rubber stamped that case is miles apart from this case this case is much more similar to the kolker case involving a insulin dependent diabetic seeking long term disability his treating physicians recommended disability reviewing physicians disagreed the so security ministration recommended found for disability again the reviewing physicians disagreed really identical i find it difficult to distinguish that case at all and in that case the employer rejected the claim and that was sustained on appeal the bottom line here is a  backwards to give mr waldock every procedural opportunity to present evidence first of all they accepted the claim when it was clearly untimely hard for pointed that out in their initial claim work up medtronic overlooked that allowed the claim to after the claim was denied on the second appeal in two thousand and eleven tatter and pointed out that it appeared to her that perhaps dr cooper had failed to consider dr speak with a letter  clearly had tried to contact after sleep with it when that question came up no one has attended to say let's have dr cooper review dr sequence letter he did that and a final that's the final decision that miss katherine was referring to so every step of the way every question was answered by medtronic or by by the hartford about the procedure every piece of evidence was submitted and considered and thoroughly considered by dr cooper all you have to do is look at dr cooper's analysis to see the detail with which he considered the questions posed to him he says he reviewed the entire record it was a subsequent question questioning of the by ms tatar and there were the record reflects at the hartford documented that question that they went back and checked the record confirmed that all the files had been sent to dr cooper and dr cooper himself says i read the entire record so there's simply nothing in the record that  contradicts the medical reviewers opinions of the harvard recommendation or medtronic acceptance of that recommendation all the evidence is that simply the mr waldock failed to prove his case he has the burden to show that his symptoms from  diabetic condition render him unable to work in any occupation that was the point in which the medical really independent medical reviewers all agreed that he had not shown that they accepted that he had symptoms of hyperglycemia that he had hypoglycemic unawareness that he had insulin antibodies all of that was accepted that this is not a case where there's evidence in the record of these symptoms and the medical reviewer simply to choose to turn a blind thank you but i'd like to talk about dr cooper's report because even if it's under a deferential review what the court is required to look at is the final decision that was done and that's by dr cooper the eighth circuit before were part of the earlier process and were not not discussed considered or even mentioned in the final denial letter so if we look at dr cooper's report it shows that he was only sent medical records and that's at eleven thirty nine of the record that means he was not provided the appeal letter a lengthy appeal letter which explain the basis of while mr wall that felt the decision was done reasonable it did not provide the basis for his disability and it also would not a provided that long employment history that showed how he tried and struggled to keep working in the many many letters that  physicians wrote describing the difficulties he was having also while dr cooper recognizes that he has these blood sugar erratic blood sugars that are all the place his reasoning that he can work full time is that he doesn't lose consciousness but that losing consciousness should not be what it takes in order to determine that somebody is having difficulty working but i would like to point out that in his december two thousand and ten which i think is an important note at ninety one of the record said that mr waldock had required assistance for his hypoglycemia one to three times in the last six months and he also reported in his may eleventh two thousand and eleven letter that during the male clinic study mr waldock had twenty two episodes of hypoglycemia and one of them required i v intervention ok well