administrator denied the claim before it was filed before with before the document to say there's been some sort of a claim but there has been devoted said we want the documents in support of the claim by november second to over a third of all the documents had been submitted they decided to claim on october the thirtieth provided the clerk with an enlarged copy of parts of page seventy eight and seventy nine of the record  easy to read but the process is it's a three step process the first thing that has to happen is you have to give notice of the claim the second thing is the plan then sends you the claim forms which ask for the information which the plan needs to adjudicate the claim and then when that material comes back that constitutes the proof of claim the job of the plan administrator and it's on the bottom of page seventy nine is that when there is  sufficient proof of claim then they write the check so and if you look through the policy you can't file a lawsuit against the plan until these sixty days have filed since the filing of the proof of claim so this policy sets dates off the filing of the proof of claim it sets duties off the filing of the proof of claim it's not and certainly a lot of these recent cases there are small mistakes here and there but this is not a small mistake it's a big one what there two things that bother me about this  is the fact that he was told multiple times you've got to submit the claim forms and then they give him the deadline and and they get releases apparently and start gathering information from his treating physicians and they tell him that if you don't swim in anything then we make the determination on the basis of what we have in our file and it looks like that's what they ultimately did here you say they should they pulled the trigger too soon they they should've waited three days before they announce a decision but then there's this was an unexplained gap where nothing happens he doesn't doesn't submit anything he doesn't say to the insurance company look i was working on this thing and here's here's additional information that i want to give you but this long period of time goes by and what's your explanation for the delay well that's a good  in sacramento northern california it's not that easy to find people it's not very easy to get lawyers to accept your case especially after you've got a denial he's got one hundred eighty so what went on during this time period is first he had to get a lawyer and then mr linden's a very fine social security and arista lawyer and the first thing  are does as it is you don't just fill out the claim form and send it in the first thing the word does is orders the file so then they get the file so do we give the his letter  saying it was sort of a notification of intent to file an appeal but he says first i want to get the file when did he finally get the file and it was a process of about thirty days because the file came and there were things that couldn't be opened and there was a little back and forth on it but then what happened is he got gets the final and as i think any good recent attorney would do is to look for the claim to see what the allegations are you look for the denial and then you try and figure out what you need to fill in for the appeal and he looks at the file and there's no  didn't know that he had to file a claim for because i thought they had multiple phone conversations in there the formation of these well first of all they're confusing short term and long term because they're using the same a lot of the same forms for both so they send a letter if you look at these letters some of them say short term disability benefits and those when they were to return date that's probably ok but on the long term the policy says you have until thirty days after the end of the elimination period which is like november twentieth two thousand and fourteen to file your claim and and they send a letter on october thirtieth here's my question for you what is it that he would have sent that had not yet been sent that would have then been in front of liberty at the time they made their decision had they waited until the expiration of the time period whether whether november third or november twentieth there are two items which are important the first is that mr whereas my knapsack in the afternoon he has a two hour nap which makes it pretty hard to work and there is a mention of th outlined in the claim form which is plain words which are submitted it you know he describes his typical day in the fact that he runs very few errands that his wife does the cooking the cleaning what's going on in this three week period maybe one month in november that he could have submitted that would have made a difference because as i read the file even his own doctors were saying we think you can go back to know with restriction to a sedentary job you know what they said no that that's what the insurance company said they said but that's not what they said that they crossed out that wine in the letter yet said you could go back to  crosses out the line that says you indicated that the record supports full time work it hours a day five days a week crosses that out and sprites patient has had recurrent anshan out in the full time work eight hours a day five days a week she dates her sending back the twenty eight it's unclear whether she sent it back by mail or by p d f we then get a letter dated october the thirtieth two days after dr carrier has crossed that out and the national debt and on page two of that letter as possible or to the denial the medical record supports full time work eight hours a day five days a week that's the very sense that was crossed out it's not clear to me whether they're ignoring the cross out or they didn't even wait for it to come back well and happy it actually came back on october and it was processed prematurely without waiting for now you gave me kind of a wandering reply are you maybe can make it a little more focused and i asked you what was it that he had not yet sent back at the time the decision was made was that a narrative of daily activities or is it more than that i mean what was it that he wasn't that he had not yet sam and they're basically it is the claimants statement medical diagnosis doesn't tell you put out somebody says sable that just shows you well they are out of the pain and fatigue that they're talking about is reasonable is that because there's no way to measure pain there's no way to measure fatigue and the credibility of the plan participate and the plan participants statement critical to these cases which ok let's let lists list save you a little bit of time and get fifty seven seconds let's hear from the other side and then we'll give you some time thank you have please the court my name is sue handelman and i am appearing on behalf of the long term disability plan and the plan administrator i think based on the discussion that's already occurred it would be helpful probably to the whole the whole discussion if we started out with the plan and what the plan calls for with respect to proof and what the plan calls for with respect to timing so let's start with the proof there's been a suggestion this morning and there has been a suggestion before that that mr cora's and his a council were entitled to ignore th denial letter which was clearly understood by the employee and by mr quaresma as attorney based on his february his lawyers february sixth letter to liberty that it was a denial and that he intended to exercise his appeal right well he said i intend to appeal but first let me look at the file back lee and when he looks of the final he realizes what you guys have done so he doesn't do an appeal well the thing that he thinks he recognizes from the file is that there was no claim that's the reason he says he didn't file an appeal if we were simply wrong in the benefit to now that's when an appeal is for but the basis for his claiming that we he didn't need to appeal thus exhaust administrative remedies which was the basis of the summary judgment below was that there was no claim and well i'm not sure that's quite right he says the claim for all you certainly did not include mr christmas completed l t d application form and i gather what he was referring to is say the given it doesn't say by home it says proof must be given and it could be doctors it could be hospitals it could be other records must be given to liberty by a certain date which is no later than thirty days after the end of the elimination period but if it's late it doesn't affect your claim that's what section b says the covers what is a proof of claim proof all doesn't say must consist of certain documents it must cover date of disability cause of disability and degree of disability that's what the proof that the the point i mean i am sort of a minister or at a loss to answer the court's question i suppose there can never be enough evidence and it depends on what well known has been let me be more precise about it you say to him you have until november third and all take for the moment november third is the right date and his will tell november third to cement support of this was a producer put evidence supporting his claim the point your honor i definitely understand it and i understood it from the record below but again we have to look at the timing what is the what is the plan require of liberty and and where is the and support it was going but you didn't do well what the plan says your honor if you look at excerpts a record one ninety one which is the insurance policy certificate at page fifty one it says when what must we notify you about a claim decision and the the plan requires that the administrator notify the claimant of a claim decision within a reasonable time but not later than forty five days after receiving the claim the claim for long term disability benefits is documented in the record it's the september nineteenth month at excerpts of record nine fifty five as opened on september nineteenth two thousand and fourteen liberty if you look at the claim notes calendared it's forty five day drop dead period at will september i'm sorry november second that's the way you read the policy that's totally loves you with the policy is requiring you to issue a decision before the proof of claim we're back to that original point of defining proof as the policy defines it proof as or as defined in the policy is date of disability cause of disability and degree of disability now we did send mr quaresma some additional forms and we asked him to update his medical records so that we could make a timely decision in forty five days and as judge tomine pointed out you w like you to fill out these five forms why what did you hold me back the did it make sense we told him november third because that was the forty fifth day and that is the date by which liberty had to skepticism but let's look at what happened according to the record between september nineteenth and october thirtieth four or actually it was two business days before the before the expiration of libert drop dead date for the fifth day note that it received does not require liberty to wait until the forty fifth day to decide to claim it says decide a claim as soon as possible but not later was sent some additional forms that liberty said would be helpful and was requested to submit additional medical information the medical information help and and as the medical information came in liberty was in communication with mr quest my mr karisma liberty wrote we have the medical records from dr kitty and we still don't have them from dr uppal you have just the forms you haven't returned the forms we sent you the five pieces of paper please send them we sent the forms to him three times we had telephone conversations there if flecked it in the record in the claim notes and phone no please and in the forms the plan does not in the form of amber third exactly and then you decided on october thirtieth and on october thirtieth in addition we called mr chorus man and said and his this is in the claim notes as well phone no it says on october thirtieth where we're bout to issue our denial letter it's dated october thirtieth we're just giving you a heads up that this is coming karisma having been sent the forms three times having been reminded to send the forms doesn't say in the phone call oh but my forms you don't have my forms i'm working on my forms nothing he says thank you that's reflected in the phone notes the claim notes liberty sends its denial and the next thing we get plenty of time within the appeal period is a letter from mr chorus ms attorney i have your denial degree of disability it's true that we told him if and we told him repeatedly if you have any other medical records if you have any other materials you want to send a send the men we urge you to send him and we called him we told him to send  and he didn't and he didn't do it now liberty under the didn't do it by october thirtieth he didn't and he didn't indicate on october thirtieth or any time ever in the in the process of this case that he had that he couldn't send the forms in that he was prohibited from sending the forms in and that's where we get to my point is that liberty did not violate the plan but even if they know you'll have fifteen minutes but but the point is is that if you had said to me you know miss hallam and you're going to be out here in in two minutes you're going to be out of here in one minute you're going to be out of here in thirty seconds if i haven't said oh no i have three minutes left i think that that is worth noting anyway in the in the claim decision and when when your honor is asking about fairness but what the point that i want to make and i want to be clearly heard on this is that proof of loss was in liberty's possession and as judge tallman noted liberty notified the claimant that if you don't send these materials and we will decide it on the materials in our file there was no violation of the risk of plan by the procedure for the claim for notice sorry for four proof of claim proof must cover date of disability cause of disability degree of disability it doesn't say it has to be given by the claimant liberty had it so there was no violation of the plan or a risk in that regard in terms of denying the plan a return reading the judge's order in this case which the judge says there's been no complaint that is unable to meet deadlines that were said and under the terms of the plan as described in the insurance policy certificate we had forty five days and it was timely now the letter if if the court is is concerned that the letter even though the denial was timely and the proof was in the file if the letter misled the claimant the question is does that excuse his compliance with ricin a law that he has to exhaust administrative remedies and that the court the trial court was very clear and that this is the today given the factual although you have until november second under the terms of your policy to submit this information we ask that you submit it by october ninth we were at and devery to do exactly what requires which is to have a dialogue with the claimant to make sure that his his that that he has that that both sides understand what's going on there is no doubt mr based on multiple correspondences september nineteenth october ninth october thirteenth that we were in writing and plus telephone calls we were evaluating his long term disability claim and we wanted everything he wanted us to consider and there was no indication from him as the court the trial judge said there was no indication from mr cora's move that he was that he planned to submit this despite being asked repeatedly that he that he when we told him the claim deny all was going out on october thirtieth that he was going to send it to us a way there was no indication despite our repeated efforts to get it from him that he was going to send it and so in this case it must be noted that the it would have been nice to have his submission but it is not the notion that he had to take naps was what was missing and that that was noted in the medical file and commented on by dr kelly at which was in the file this is not about the claim denial it's about l thank you the forty five day claim period which also referred to is found in the department of labor regulations twenty nine period of time within which a benefit to determination is required to be made shall begin at the time a claim is filed nothing was filed on september item it is claims not filed to we're finished with submitting all the documents to support it i've got one question for you what do you want there is to say one thing you could be wanting is send this back to the insurance company to decide the claim with  documentation submitted not for us to say you got it wrong with just a back go back and do the job you know you didn't do is that what you want actually i think the under subdivision l of the department labor regulations if there is a problem in the administrative processes those are deemed exhausted so it really should be a rematch and to the trial court for trial on the makes a large difference since we have to know over what the noble review in any event but i think that i wouldn't mind giving them a chance actually decide to claim with the full documentation yeah i won't have a problem with that is this something you guys could work out through mediation i mean do we really you know go back to litigation yes we do case the charisma versus farmers group disability income plan the liberty life insurance company of boston which really seems to be from kentucky submitted ok and we will take a ten minute break and then we'll come back and hear about