long term disability by hartford who provided insurance policies that funded a risk of plans that were offered by his employer were appealing the denial of his long term disability claim there are three primary issues that i wish to address today the st is that a receipt requires that insurers provide a full and fair review it requires that they diligently investigate a case that they complete a suit put together a complete record that they examine the basis of expert opinions and that they reach decisions that are supported by substantial evidence or is also requires that administrator is must review all of the evidence that is before them at the time that a decision is reached and rd or is a rd if the policy provides coverage or disability due to conditions that for which no truly objective evidence exists neither a risk particularly the oliver case from the  circuit or hartford's policy requires that the disability be proved with objective evidence before going into into those three said that rd point i'm not exactly rd point is that if the policy covers disability due to conditions which can't be proved proven with truly objective evidence and specifically what we're talking about the symptoms that disabled mr benson were pain chronic pain and fatigue he had numerous can do it had several conditions that were known that are known in the medical literature to cause pain and and it's also absolutely recognized in the medical literature that there is no objective way to measure pain there is a case out of the th circuit that says there is no  and you can't just rely on opinions of experts that review paper and say well yeah he's got this condition we don't dispute that we don't dispute that that condition causes the symptoms but we don't think those symptoms are severe enough to prevent him from working there's no basis for the rd part as opinion harford has two responses to that i think that i want you to address st it says it's true that we can't condemn contests subjective complaints of pain but what we can do is look at objective evidence with regard to whether he's actually impaired in his ability to do his job ok that's one thing and then the nd thing they say is well in the medical records there's actually object there's evidence that contradicts the subjective complaints of pain where in the i guess it's in the doctor's notes mr benson reports that he's feeling ok as far his as far as pm are he's doing better things like that so if you could address those two points yes and the st point i have a difference between subjective complaints of pain and evidence of functional impairment in one's ability to work the actually mr benson provided the only evidence and the best evidence that exist regarding the impact that these conditions had on his ability to do his job that evidence is he went back to work this year benson went back to work and worked for a period of seven or eight months throughout the entire administrat period at his job doing the exact same activities that he had previously done but because of his diminished capacity ability and probably only because he was a secular vice president who had built the company up to what it was that the time that he became disabled he was provided with that job but he was provided with a job that was at a lesser position and he took almost a sixty percent pay cut while still trying to work almost the same hours that's the only way you can determine how pain or fatigue would affect you in your daily job is to go out and try and do it and mr benson not only went out and tried to do it and had his doctor confirm that you know he just can't do this job the doctor didn't even want him to go back and do the job but there's also a letter provided by the president of the company who testified to mr benson's character to his honesty to his athletics to his hard work and effort and who said that when he came back to work his ability to walk was severely impaired his ability to think was severely impaired his malady to communicate was severely impaired at that letter was not the insurance company correct that is correct and what rock me through why that letter wasn't provided in the st place and why why the insurance companies here hard to open things back up and look at that well let me let me start with back part of your question ali i'm going to answer your question fully and it's a good question the reason that the wrecker was opened back up was because the insurance company had to correct a mistake that it made and it wasn't the st time it made that mistake the insurance company of more than one occasion had failed to provide evidence that was submitted to its doctors so it's doctors are runner and opinions based on an incomplete review of the record so it was hartford that agreed to reopen the record to correct it's the stake so at the time that hartford said it would reopen the record and looked at the evidence we submitted additional evidence the the the specific rule that deals with that is the general procedure rule and in general procedure rule says that they  should evaluate all the evidence that submitted at the time they that is submitted before they run for their opinion and there are cases out of the th circuit that we've cited that say that's what that that's what that means it means exactly what it says if the evidence is before them and your honor the letter is it's a you know it's a one page little letter it's very praiseworthy a bit about some but it's not long yeah i'm familiar with a lot and they had a letter or so seven or eight weeks before they issue their ruling so what you're saying is if if the company hadn't made a mistake such that they needed to reopen the record you wouldn't have been able to get the letter and but since they're reopening the record anyway under the general procedures that allows your client and or more evidence that yes your honor i'm saying my client is law suggests that my client can continue to offer evidence as he acquires it and the letter if the st one is denied let's say and i'm not saying we're going to do this but let's say we decided against your client today could he file a new claim tomorrow with greater evidence or is there some policy that once you've once you made your claim you're done i don't believe you can the biggest problem is that since he's no longer working the premiums are no longer being paid he's no longer covered except through a very premium so this is one shot it's one shot in it and it is unfortunate it's unfortunate in other cases that i've been involved in because sometimes the doctors are not able to make a diagnosis by the time the  claim is required in the arista laws court probably knows you have to file the claim they make a decision you only have a certain amount of time to appeal that claim and you know for claimants they have to find a lawyer and then they have to the lawyer has to work with the doctors and work with everybody to try to get the evidence up that that can end up being a very difficult thing to do so aside from the letter was there any o who was the main treating physician who had treated mr benson for years and who saw him on a frequent basis and and in addition to that we've submitted additional video evidence so those are the three items that were submitted after the initial appeal but well before the final decision the consideration before the final decision on the reconsideration yes your honor i thought it was the president's lett submitted doing the district court proceedings oh and i'm sorry no your honor the the appeal was decided i don't have the exact dates memorized but  the hartford issued its opinion on the appeal and as the court probably goes under rissa law you can write and ask for a copy of the file i mediately wrote and asked for a copy of the file we got the file and then we were able to read the decisions of the reviewing positions and it was clear they hadn't looked at the big deal so i contacted hartford actually on two grounds and said number one the reason you deny the appeal is completely different from the reason you denied the claim originally and that's not fair because i can't respond to a new reason and number two you didn't look at all the evidence well harford didn't read that poem if you talking about that late bay and the b t o well no so then what happened when i asked them at the time i asked that i'm sorry at the time i told them that they hadn't reviewed all the evidence that had been submitted with that letter i submitted the additional evidence which i now had because herb a had a chance to look at those doctors opinions and respond to them and because that was front frankly that's when i had a letter from the president of the company but it was submitted with my request that they reopen the record they agreed to reopen the record but they said well we're going to reopen the record and we're going to withdraw our opinion and issue a final opinion but we're only going to review some of the stuff and not the other stuff and what did they not review they did not review the letter from the president that was so praiseworthy and talked about how he functioned when he came back to work for that extended period of time suppose good morning jerrold awesome for hartford what's really at issue here is whether the evidence in the administrative record president's letter was submitted after hartford may were harvard considered to be its final decision as mr khan was our recounting horror did fail to provide its reviewing positions with a video that he had submitted and his hartford agreed to review the video it did not open up its record and go to make a whole new decision what it did physicians did review the video and said in effect that it did not alter their previous conclusions in that it was not persuasive evidence of disability when mr khan brought up the  video he also supplied an untimely letter from dr report from dr herb a reporting to respond to the peer reviews reports and also the letter from the from the company considering the video after the fact of its final decision because it had had the video previously just failed to look at it so they acknowledged that mistake and corrected it harvard's position was in is that that is not open the door for mr come on to provide whatever other evidence he felt like having harvard review furthermore what so tell me why that position is consistent with the rule that the decision maker has a look at all the evidence available at th very last communication from hartford as its final decision in fact the final decision was made on june nd before that information the letter from the company executive was submitted it was in the process  anything and everything that is sent to them after that there is no way the final decision was made in june it was only after that that this other information came in but harvard not reopen it its claim record order to consider anything and everything that might come in after that fall a solution they agreed only to look at that which they had already had before the final decision but it failed to look at what they were supposed to do that would would you set out the rule as a the company is the insurance company is obligated to consider the information that they have at the record of the their st st final decision if they neglect to look at something on that time they can reopen the record and they can reopen the process only interview information that they already had but not to accept any additional information there is no obligation on the part of the clayton minister rater to consider information that is provided or submitted after that and what's not what's the authority for the idea that the final decision was on the appeal and that this reconsideration or whatever you call it was not if it was not the final decision well in what horford made what it believed was a final decision that was based on all the evidence before the appeal was complete put is there is there a rule what's the what says that the decision made after the appeal the one that was made in june was the final decision such that arthur was entitled not to look at any evidence submitted after that any new evidence had prior to the appeal or when the appeal was submitted because they would feel to do that in no way entitles mr benson to then submit you know any number of new doctor reports or other evidence that he failed to submit in when his  was being decided as a hard to say that at the june nd decision was the final decision when there was in fact another decision after that no it's not because after that the only thing hartford said and i the video to the reviewing physicians they looked at it and they gave us a den to miss their previous reports saying that it didn't affect their previous analysis on which are for a lot let me tell you what my love cleric said about this the report from dr erb a which purported to respond to the or and criticized the peer reviews on appeal at harvard relied on i don't believe you based any argument upon it but certainly i wouldn't deny that harvard did it have it at the time that suppose it's era that it wasn't submitted to the doctor's what's the substance of it is it is it such that we should send the case back no i don't believe that hartford would have provided that letter to the peer reviewers in any event because it's not medical evidence it's simply a lay person providing his impressions but what's relevant here and what should decide this case is the medical evidence that existed during the elimination period which he has to prove he was disable throughout the information clark but had it and it's not medical evidence is there any indication that the company did not consider it in the final decision fact i can if you like i can find the letter and quote it but what happened was in there in hartford the last communication which is being missed characterizes the final decision in hartford last communication to mr benson's attorney they said one the video does not alter the video that we had before that we mistakenly failed to look at riginal that video does not alter the peer review or opinions on which we rely submitted timely during the appeal so they didn't they didn't for him that we didn't consider because you know when i'm submitted i don't see any reference to the letter and i mean due to that to the bosses letter and the denial  reconsideration maybe i'm missing it a c b i see where it says the information from dr urban was not a part of the original documentation and so it was not provided to the doctors as not been reviewed and i don't see any reference to the letter i may have may have been mistaken that oh that's right i have i have a the quotation here dr bray's last letter was not a part of the original documentation for submitted for appeal and therefore was not provided to review when you talk to doctors and has not been reviewed the company letter of the company present letter which was submitted with that was not reviewed either and i may have  have assumed that the that would be the that's the same rationale because it was not timely received in this case i don't think it would have been provided to the peer reviewers in any event because i say it's not medical evidence it was just a subjective i fine man the letter from the company executive shed no light whatsoever on what's the issue in this case namely whether mr benson was disabled throughout and beyond the elimination period the only nation period goes from when he stopped working for about three months to when he would receive start receiving l t d benefits if he were eligible for them said even if he were a doctor or had any medical qualifications which he wasn't and didn't nothing he said would have the slightest bearing whatsoever on the central question in the case which is whether  dispositive bearing on that question are the contemporaneous medical records from during and shortly after that period some of those records were referenced by judge prior earlier their records in which benson felt quote great unquote with respect to his p m r that is right in the middle of the elimination period he felt great so the concept that he was a nothing from the from  the company president's letter about future events or later events would in any way detract from dr erb a recording that benson himself said he felt great with respect to his pm or during the  was four out of ten that all that office visit note which is a d forty six dash five page eighty three makes no mention whatsoever of pain from from pm arm there are in his treatment record of that day that benson's pm or was quote well control unquote and at no time did the root treating recall just ever suggest there was any degree of impairment from pm are therefore it is not possible for mr benson to prove that he was doing he was disabled throughout and beyond the elimination period that was right in the middle of the woman asian period thank you very much for your indulgence and i will sit down and shut up now well thirty three quick points it is true is it not that you have to be disabled throughout the entire elimination period i would say it's not true because the boss's letter helps to establish mr benson's credibility and essentially when you've got disability due to to to pain and fatigue it's a credibility issue because there is no you can't slap x ray up on a screen and say that person has pain at level five you can't look at the findings on a physical exam and say what level of pain somebody has yet obviously and by definition if pain gets to a certain level on a scale of one to ten it's generally between four and five you can't work any more you certainly can't work productively on a regular set schedule full time and that's exactly the problem that mr benson has he can't work productively and his credibility was established by the fact that he returned to work and he worked pay and tried the best that he could during that period of time and he said he couldn't do it earlier so it it shows how badly he was hurting when he was trying to work supports the fact that earlier he was not able to work but there are there are two just real quickly it's not a final decision if it's not based on all the evidence that was submitted so the june decision is not a final decision it can't possibly be a final decision secondly benson never claimed that he was disabled just by the pm are that's that's not true the precipitating event that took him out of work is the injury hard fern's own medical department said he's got complicated medical issues this is a bad injury he's clearly disabled and that's why they paid him short term disability then he got a total knee replacement harford's own guidelines for people that don't have all of benson's medical issues says that that will keep you totally disabled for fifty five days fifty five days take some way beyond the date at which he's eligible for long term disability benefits hartford's own medical department said actually with mr benson he's more likely to be totally disabled for ninety days this is hartford's own medical department the reason in the reason that there are reports on a couple of days about how great he feels with respect to his pm on are is because in anticipation of the surgery they gave him huge doses of steroids these are unsustainable doses of steroids steroids themselves cause injury in cause pain and cause fatigue so you can feel great on a certain day it would be like somebody that hugely overdoses on pain medication they may feel great on a certain day but they can't work like that you can't show up at a job that requires that you work five days a week eight hours a day productively when when you're having a great day because they pushed your steroids up there are no records absolutely clear on this his normal dosage before he got hurt was only about seven dollars which is that the upper limit of what you can chronically take and maintain health they pushed him all the way up to forty before the surgery in anticipation of the surgery and then they had to bring him back down and when they brought him back down his symptoms went through the roof and the doctors call in hartford saying he can't go to work he can't