review which you know it's an issue that you know it was was briefed in one of their briefs and are going to chance to respond on the paper as to whether the standard of review with respect to the harley waiver issue of brogan that stands for that proposition and i'd i'd like to take a moment here to sort of you know get below the details and explain not just you know through authority but why in fact it's an issue of law rather than issue a fact and that's because the really isn't any factual dispute about the communications the nature of the communications the specific words that were used from united two to ms qur'an and her counsel with respect to the reasons why her claim was being denied you know  denial letter is in the record for this court is as is the appellate letter and and the various other communications and they're all in writing and no one disputes what they say the actual dispute is the legal  impact of that lie whether for example the fairly old bleich references in the initial denial letter to the reported symptoms of limitation constitutes notice to ms qur'an and that that was one of the basis of denial and whether that me ask you a question on the merits thank you or is it your position that none of the correspondence between the insurance company and your client prior to the denial letter can be look at in determining whether she was on notice as to the reason for the denial that the insurance company now claims was the real reason that's my position your honor although i'll say that you know even if you look at that stuff there was unfair on the notice given but the fact of the matter is insurance companies change their mind they're allowed to change their mind it's not what and what case law do you have that tells us that even if there was prior correspondence that might suggest some other possible reason the only thing that your client is required to look to is the actual denial letter well you know your honor the i would look for example to martinez versus beverly hills hotel which i cited to to the court which stands for the proposition that it's the last you know the appeal letter that actually sort of controls what's going to be tried in court you know the two letters service somewhat different purpose i mean the first the first letter the first denial letter is to let counsel know were the claimant know this is what i need to submit evidence on the second letter is in order to of protect the record is the is the appellate process actually in the administrative process actually over you know if they've introduced a new new ground and then maybe it's not but it's to let counsel know what's got to be tried i'm sorry your honor so your position is if there is an appeal and then a second letter that denies the appeal the operative letter is the denial of the appeal yeah although you could be prejudice but but but by either one i mean you know but but what is going to be tried is going to be what's in the in the injured and the insurance company what do we do have at those those cases well you know you're out of that they really haven't i've looked at some of those they really haven't been been briefed you know the insurance company didn't seem to take the position that the substantial compliance applied you know to the extent of this court wants to to look at that issue i'd appreciate an opportunity to provide supplemental briefing but but but but in brief i mean let's let's sort of look at the record is as a whole the none of the experts were asked to issue an opinion as to whether the predicate facts behind the s r s limitation were met which led to the unseemly process of people filing you know you know medical you know  expert the doctor who who who who looked at the issue of whether ms cran was disabled he was asked about ms grant's restrictions and limitations but he was not asked you know did she have you know symptoms we could only be diagnosed subjective lead she have a medical condition which could only be diagnosed subjectively that's the you know the issue with respect to the self reported some symptoms limitation he wasn't asked that nobody else was ever asked that and as a result there really isn't any medical evidence in front of the in front of the court as to whether the terms of the self reported symptom symptoms limitation are met but you know the there's only a black reference in the in denial letter and  don the denial of her appeal well i mean i think you disregard it first because the denial letter and i think so make your other than a fair reading of the denial letter will be that it's not denying the claim based on has been going on and then the provisions in your policy which the denial of your claim is based states the following and then they quote the plans definition of total disability and leave him with a ph you are reading from e r five  so the first page says the provisions in your policy which the denial of your claim is based on it's the following and then they cite the total disability and man on the second page which would be pa of the letter they cite the self reported symptoms section that's all that's all correct your honor they they they do say you're being paid under the self important symptoms limitation we're not going to pay you  detailed review explaining why the medical evidence doesn't add up to ms qur'an being disabled and over on page five fifty five is the rubber meets the road in summary the documentation in the file consistently reveals normal objective physical findings based on the information in file i believe that their language based on the information in file you should be capable of performing in the same physical capacity as when you say in summary this is why we're denying your claim that any reasonable person is going to look at that and say you know this is why we're denying the claim but you know we could parse you know back and forth about that but i mean the question i would have for for united is there no affirmative defense based on the u s arrest limitation why does the rule twenty six statement submitted to a joint lead to would to both parties not only say on united behalf make no reference to the u s arrest limitation but tell that district judge the only issue to be tried is whether miss crane is disabled you know what we're doing here is and if we're looking at sort of stray references in this you know multi faith aus and page file and fishing out a reference or t statement there that the only issue to be tried is disability and when is the first time that the insurance company says actually we denied on the basis of and reported sometimes when trial briefing started your honor when trial briefing started  was the first time it's mentioned to the first reference that i've been able to ascertain from the record your honor as i said i'm just a public counsel ok but it appears down from from this sequence that when the insurance company first looked at this lawsuit it thinks that it denied based upon total disbelief total disability and based upon the sofa report of symptoms the evidence makes that clear that that's exactly what's going on here this is something that you know there litigation counsel looked at as they were sort of getting ready for trial briefing he said here we've got this other argument in there let's put it in there the problem of course is that if miss miss qur'an wasn't put on notice in this back in the day so she could submit evidence her lawyer was not put on notice of this during the appellate process to know hey this is something that i need to i need to take care of i need to commit to make a motion to work submitted to tional evidence under a body and in a timely fashion you know you have a situation where there's an issue being tried that resolves an important right of miss qur'an and she's never been given an opportunity to submit evidence on that i submit that you know forget about a violation of the you know that may be an overstatement you say that this first raised in the pretrial briefing  sound like that's true well you know i mean to do typically the she's a risky case to try to on the administrative record you're not given an opportunity to submit additional evidence and the rationale for that is that you had your opportunity to submit this the evidence i see what you're saying this is th record is fix the administrative work this is what it is at that point it's typically thick to fix there are some exceptions and indeed to be frank i think some of those exceptions at least one of them the one from a body may apply here but corrent didn't provide any objective evidence of her diagnosis that's that's incorrect your honor i mean that's what united says but as a matter of fact there is objective evidence that he the records she didn't have the pressure tests performed that would whiteman says it was done not you know afterwards it was done back in the day you just couldn't read his medical records to ascertain that because the medical records were not that in the letter does he he does say that i mean it wasn't he doesn't say that he did it but that it was in his records  currence response when tested confirmed my nose is but then he says his notes may not reflect the specific testing idea he says it's routine for him to do it so he doesn't say that that test result is in his  respond your honor i appreciate that thank you findings after carefully reviewing the evidence following a bench trial and made a determination based based upon its evaluation of the communications back and forth from united of omaha and ms qur'an we don't have anything other than pieces of paper correct we don't have live testimony she says there is he says that conflict in the testimony is all on paper right that's correct your honor the evidence was limited to the documents in the administrative record and the district court's role and what it did was evaluate that  that is a highly factual inquiry that's entitled to deference and that is subject to the clear air standard now i'd like to address counsel's point that only the final denial letter of march tw twelve can be considered in determining whether or not ms grant had adequate notice of the s r s on the titian and i would submit your honor that that is completely incorrect what the arista regulations require is an informative communication back and forth between the insurance company and the claimant that adequately apprises the claimant of the determination on the claim and the reasons for the determination so as to enable t claimant to be able to rebut that determination if it's adverse tour and that's exactly make sure i understand what you're saying are you saying that communications prior to the mile letter are relevant to determining who for the reasons for the denied a claim written notice setting forth america who had been arrested but the reasons for the denial now until you get to them are all you can give the reasons for the denial and then we write if benefits are denied a whole or part of the reason for the denial must be stated in reasonably clear language with specific reference to the plan provisions would form the basis for the denial and that is i think we have to look at the denial and the back and they have two thousand and eleven that is the crucial denial because that is the mechanism by which ms qur'an is informed of the claim determination and the basis for it so that she can submit whatever information she deems necessary to be able to earlier communications set the framework for the initial denial letter that goes out any of two thousand and eleven and the critical pre may two thousand and eleven communications are first in two thousand and nine when m thousand and eleven the next year in two thousand and ten united of omaha writes to her and reminds her remember we're paying you under this s r s limitation of twenty four months that means your benefits will run out next year in january of two thousand and eleven and january of two thousand and eleven ms qur'an rice united of omaha and says i have been disputing your characterization of my claim as falling within this as our estimate and i think i should be paid beyond the twenty four months that was in january two thousand and eleven in may of two thousand and eleven that's when united of omaha sends the initial denial letter to her and the very first paragraph says this isn't a response to request for benefits beyond the twenty four month self reported period and we are denying your request and here are the plan provisions that we're relying on to deny your request and then united of omaha goes on to examined within the context of the company's prior communications with ms qur'an and let me go back to that may two thousand and eleven letter because there's a very important part that i think we're overlooking in that letter that's important to whether or not she had adequate notice so the may two thousand and eleven letter starts off saying we're going to request beyond the twenty four months based on the total disability definition that and the s r s limitation and then there's a conclusion that your honor read that in between is exhaustive explanation of the reasons for the determination and the explanation is if you read it there is no objective evidence to substantiate any of the conditions that you claim are rendering you in play and that the reason it's in play is because of the myriad of different ways as explained to her and the denial letter that her claim is lacking in objective evidence i e it only consists of self reported symptoms and that the lack of trigger point testing is an important basis for the claim determination so when you get to march in two thousand and twelve and by that time she's represented by very capable counsel who has the benefit of all of these communications between mr and united o ma and they know that the lack of trigger point testing is an important consideration after the appeal process plays out united of omaha says the prior determination we have deemed is correct and it goes on to explain in multiple pages again the myriad of ways in which the claim is lacking in objective evidence including again the lack of trip trigger point testing the fact that the lyme disease lab results came out negative the nerve conduction studies the e n g's were negative the neurocognitive test results were within the expected range the myriad of different different ways in which the s limitation applied and i grant you absolutely the letter does not again mention the s r s on the titian but remember by this time she's been told three separate times in writing that this limitation applies and that there are a number of ways in which your claim is lacking objective evidence now let me move on your honor to the allegation that this s r s limitation was raised for the first time in trial breaking absolutely incorrect the answer to the complaint is part of the record on appeal and i'm now referring to thirteen sixty eight through thirteen seventy of the excerpts of the record and let me let me turn your attention expired in january two thousand and eleven under the plans limitation for self reported symptoms very next paragraph another reference to the s r s limitation defendant admits that plaintiff requested that evaluation of her claim for payment beyond the twenty four month limitation for self reported symptoms that she made that request bits i'm sorry e r are thirteen sixty eight united in its answer lays out the fact that it had approved her l t d claim initially under the twenty four month s r s on occasion so this this is all over the place in terms of the answer council was on notice of it in the joint report again that is there other evidence that she could have gathered if she had chosen to do so presumably yes your honor and these kinds of cases are troublesome to the courts to i can speak most authoritative way about that to the district court because it's in the nature of the condition that it doesn't give rise to objective verification and so what is insured person supposed to do beyond self report what the condition is doing it what the effect of it is that entitles the person to disability benefit well united of  e if the plan administrator is believe that more information is needed to make a reasoned decision they must ask for it so you say she should have gone out and got it well as i read buton omar should have it told her go get it that's effectively what the company did and in the may two thousand and eleven eleven letter directly what they did they denied it and they said in summary we deny because you are not completely disabled they refer to twenty four month so for the symptom earlier on but nowhere did they say if you want benefits beyond the twenty four months go out and get this test performed they never said there they didn't say that those exact wor they said you have not been diagnosed in explaining the different ways in which your claim lacked objective evidence they said you have not been diagnosed with trigger points according to the american college of rheumatology guidelines and so that's a history of anxiety and depression it has been suggested that you suffer from prior with no confirmed diagnosis of ten reports but any of your treating providers as required by the american college rheumatology diagnostic guidelines that's all also claimed she had lyme disease and is there a way to objective lee prove lyme disease there is your honor and there are a couple of ways to do that one you can get a blood test and there's actually a marker that comes out positive and lyme disease patients also typically get a characteristic bull's eye rash which she was evaluated for and she reported no such history which is what caused a couple of her treating physicians to say we don't think you have lyme disease the lack of negative lab testing and a lack of the characteristic rash so the as objective lee proveable but in order to do it you have to have something in your blood that would show up on these tests that's actually  of picking out little bits and pieces that that sort of refer to objective evidence or refer to the self reported symptoms limitation but what united is unable to do is point to any place where they come out and know your own i mean i don't i wouldn't characterize it quite like that what they say they start off by saying your claim for benefits beyond the twenty four month self reported symptoms limitation has been denied then it proceeds you know your honor i i'm afraid i just i just don't agree with that i mean they they say we're not going to pay beyond the twenty four months limitation they cite some plan provisions one of them is the twenty four month limitation then they walk through the medical evidence and they summarize and they say we're not going to pay your benefits because we think you're not you're not disabled but but again if that is in fact if the insurance company is entitled to  obligated also at them is obligated to provide notice of the reason for denial of benefits and there is a series of communications that precede a final final decision why can't it pull forward all of the elements of that communication there's nothing inconsistent that has cropped up as a basis for the refusal all of that information comes forward and constitutes the  corpus of the decision making requirements of the insurance company comply with the reason why is because the case law the regulations and in fact the plan here require that the final denial the whole letter contain the specific reason or reasons why the claim is being denied by the way i didn't cite to the to something that you figured out when i was preparing last night that it's in the record to sixty two where the plan itself the plan itself requires the appeal letter to a to contain a specific reason not just the original denial letter but the appeal letter though there's a separate regular regulation section where they talk about what's required in the notice of decision on affected everything that we've said but in that letter they didn't list a specific reason for the denial it just wasn't done here it's a blatant and gross violation of the provisions of the recess and there's just no other way to look at think both sides