disability benefits for an additional period of time it's important to know that he was an employee of an office depot was covered under a short term disability plan that is governed by the application of the employee retirement security a and while it first glance this might seem to be a very trivial case there are some very important legal constructs that are at play and used by the district court well why don't you you know move on from the fact that apparently there is no conflict of interest between a search through a canal office depot so we're under the the abuse of discretion standard and the district court opinion apparently just reviewed the facts they know that said the facts i don't quite understand i don't understand what mr review of the district court is did novo because it was a granting of a summary judgment so you can do novo review this record and overturn the district court's opinion and reinstate which is what we're asking you to do reinstate the this particular case and i think what we should probably do is maybe initially go through the issue as it relates to the evidence that was before the plan administrator and that timeline  and that's significant because this is not a case where the plan administrator said work and i were fair to them as the plan administrator here and said we gave a significant amount of consideration to the medical neurological complications as we understand it he was having some neurological complications that involved some number of numbness and tingling after after the surgery and that's why dr trying to do abdominal surgery on a small not second guess their decision i can only tell you what their decisions were based on and what they had before them was the operative report of dr thomas where they talked about what his condition was on may twenty first dr thomas in his report that was submitted said that he estimated that his he would be out of work until june twelfth the disability case manager reviews those records in may and again reviews those records in june after dr thomas and looking at an objective medical guidance makes a determination that that based on the operative report despite the fact that he's being referred to a neurologist based on the operative report and his job description and this is an important factor in a nuance that has been lost by the district court the plan administrator has available to them his job description this is not a heavy labor job or there is some manual labor involved in this job but the plan administrator has his job description available they take the medical records in relation to the job description and in relation to objective guidance from a medical experts and say he's not disabled for short term disability benefits after may thirtieth partial cost me or something after after after the surgery i'm not aware that i had a partial colossally after that you're on i'm unsure and i can answer that and again that's the type of analysis of the records that we really shouldn't be doing and that the district court should well but there ought to be the record to be in the file somewhere  and all the medical evidence all the evidence that was available to the planning minister was submitted to the court we filed the complete administrative record in september of two thousand and thirteen and that record contains all of the medical records that were available to the plan administrator at the time of their review and that's in the air and that's in the record and there are certain specific references to the medical records in our brief that i can refer you to for example dr thomas his report is the record on appeal starting at page eleven seventy four to eleven seventy seven and it's that report that the judge kind of makes a big significant she she the district judge made a quantitative analysis of that report and decided that we should have rejected that report or we should have agreed wholeheartedly with that report it because the doctor said it was estimated that he would be disabled until june twelfth or thirteenth of two thousand and twelve after his examination and if you if you look that's the record pealed page eleven ninety four with dr chu access in that report is mr schiro said he cannot work i said that was fine he can stay off of work for the time job as this court has set out as most recently in the many trust decision which i think really controls here but as the plan administrator said at the time we have to take all the factors into consideration  yearly pounds being the most without reasonable terminations so is the office manager of the office depot with the plan administrator made a determination that with a reasonable accommodation he should not be short term he should not be disabled as after may thirtieth based on the condition in the medical records and again the standard before the district court should be was there substantial evidence to support the plan administr decision she she simply did not apply that standard and that was legal error you know the court committed legal error and instead of trying to find and analyze the evidence whether or not the plan  manager had substantial evidence the district court made a denotable review of the record and decided where do i find the evidence of disability and that's legal error under many cases side of the  file and nodded his disability file but they went ahead and reviewed that and confirm that the decision that they made based on all of the evidence up to october twenty six did not support a finding of further disability and that's that's a very important distinction because the district court referred the plan minister back to evidence that didn't exist on october twenty sixth which is also improper and legal  and so that's the second legal error that was committed by the district court in trying to get the plan administrator or impose an obligation on the planet ministre it or to submit evidence after they made their final determination on october twenty six their final determination was not made until after they retained an independent expert independent medical expert to conduct a review of all the records and make an assessment of a short term disability and that and the court ruled specifically that the plan administrator was required and she was giving deference to the treating physicians that's directly contrary to the precedent of the circuit of this court and so they is reminding the district courts that that's not the rule and unfortunately that's the rule that the judge relied upon in large part to reverse the decision of the plan administrator and you know her her decision should have been limited in every three scope and it wasn't i'm it wasn't quite as it wasn't the first time on a rematch nor was it the second time when she made the decision on the motion for summary judgment and we have a few times sometimes we have dug into the evidence it's not just the thirty thousand foot view we do look into it and in the lane versus you know my case from a few years ago two thousand and two quite a while ago we decided that didn't ignore the fact it was serious abdominal surgery as opposed to a minor incision where we have on that lined up maybe hearing from pros and count we actually have a series of things you know one of the things that's important is that we have  the the plan administrator is not ignoring any of the medical evidence and they are actually doing a qualitative analysis of all the evidence each step of the process and that's documented in the claim file we have then we're actually reading and trying to digest what the operative report and the findings from dr thomas say they're reading the reports from the treating physicians and at and doing it at an analysis of that  appeal higher and someone to to conduct an independent review of those records but as you will see from the administrative records each step along the way they're asking for additional information you know the judge actually had a problem with the fact that the plan administrator had a message from the doctor but that that i think that weighs in favor of the plan administrator here because what that shows is a proactive plan administrator that was actively trying to get as much information and clarity as they could they were they hired a clinical nurse to review these records and then hire an expert or doctor brock tried to contact dr pretty standard procedure the very standard procedure for the plan administrator to be in direct contact with physicians we you know we we it is something that happens on a regular basis and the fact that they got a message through an assistant is something that's simply not that unusual and the fact that the judge actually considered excuse me so much time forget it it's a regular issue and if this doctor had really wanted to get his client the disability he would have written a few paragraphs and explained it but i didn't see that in the rest patient yeah and what he wrote was i asked the patient if you want to go back to work he said no i said that was fine we have to take that this comment from from the physician as part of the totality of the circumstances and in that circumstance this planet may differ you're actually did a rational job you may find that it's at the low end of the suppression of reasonable is but what they did was reasonable and the district judge had no authority to impose her independent judgment and that's exactly what happened in this case and these are the types of situations where the the court of appeal has to step in and reverse and reinstate the plan a minister's job i did not address the appeal issue i believe that the notice of appeal was timely because it was premature once the judgment was entered the notice of appeal was done thank schiro quickly on the appeal issue we believe it was not timely it was filed sixty eight days after the original order then on march sixteenth we filed a motion to dismiss the appeal because it was not timely and this court specifically ordered the district judge to issue a judgment which the judge which the court did after which they didn't f notice now the exception there is a one exception and it's the outcome case in effect circuit and says the purpose of roof forty two is to avoid the harsh results may obtain when a district court has announced its final judgment and zealous counsel in his haste to file a notice does so before the district court formally enters the order well it may be it's they waited sixty eight days that's not really seal and then particularly when this court said ok the judge has to issue a judgment they still did nothing more problematic is that on january twenty ninth the district drop the court issued a judgment ordering office depot to pay some twenty eight thousand dollars in attorney's fees that's a final judgment there notice of appeal is the november nineteenth two thousand and four order that's what they're notice of appeal client but it is a judgment on the other issues that fundamental mistake so what is there in the record that supports your idea that the plan administrator absolutely didn't abuse the medical evidence went contrary to the medical evidence or something like that well as the court the district court said that the the administrative record finds contains forward mantras from dr truax dated june eleventh july a claimant to bring an action there's no means that because the plan and then a stranger is rude i don't you know i'm sorry if this means there was a very poignant note in the file there the man writing to the company and asking for relief but it's he's the sick person his doctors need to tell the plan administrator what's wrong with him and why and that's what i don't see in the record route one reason i think what they do say is you can't work now because we're dealing with a short term twenty four week right here period it's kind of like you know we're workers copies temporarily total this ability but does that mean we've got a broken arm let us in the man's disabled but he's temporarily totally disabled and and in six weeks he'll be fine ok and that's kind of what these doctors were getting at with this with the short term disability but what they determination is limited to determining whether there is substantial evidence in the record to support their decision and a plan administrator can abuse his or her discretion if he or she fails to obtain necessary information well if this case had been for two weeks of disability it seems to me might be completely different case but you're asking for the twenty four weeks of this short term disability are you not right because what we're again what they say is what we're limited to the administrative record then yes ok right that you are yeah yeah you understand that so that i can't i can't get somebody to say twenty four weeks later this is what this is where he is but his doctors repeatedly pounds occasionally they go out in the record is it there is no diagnoses on the record i guess it's ok other than the diagnosis for the surgeries  circumstances of this so this decision also are very interesting the court remanded the matter and specifically asked the planning ministry to consider all i could think to myself was well maybe he was grossly obese well he was not grossly obese and you know to suggest that they needed to list your fifty the man had to work all of the equipment that's what the part of the part of his drive description was he had to climb ladders lead climb ladders or regularly based on his job that's not you know this is not somebody sitting behind a desk bringing up if you have a hernia surgery tell you yes the district court did look at the administrative record there's no there's nothing improper about that you have asked otherwise the concept that you can bring an action under i'm going to look at mine then were ordered by the court look at it what do they do nothing they did nothing and then they send a report and don't even give it to the to the claimant i mean this this case i know it's not sexy but it's not your average a risk case those things don't happen very often cases i see that there's a remand and then in normal the man and i understand it looks like the judge did go through and look at the record attorney's fees as a result of that order we fully expected counsel to ask for the judgment be entered or the district court to issue a judgment thereafter that never took place what took place was that counsel sent us a demand saying you've got to pay this now and as a result we wanted to be clear we file the notice of appeal because a we were concerned that the order was going to be considered a final appeal judgment we looked at the rules as to the hundred and fifty days for appeal of the judgment and we decided to file the notice of appeal thereafter the judge filed a final judgment that the premature notice of the groovy judge yeah a rule fifty eight judgment the supreme court has said this court has said you know the first to your case i think is probably right on point that a premature notice of appeal is considered notice the the only reason why you wouldn't consider jurisdiction is if somehow there was prejudice in this case that they didn't expect us to appeal clearly that that occurred in this case and that that notice x is known as the day that judgment is entered so i think that issue is a bit of a red herring i want to go back to what judge jones was raising with the issue about the diagnosis and i think it's important that when you look at the remainder of you which i believe that cedric did a really good job on that remains analysis explaining they went back to dr brock because each step of the process this is not something that we were delaying and when you look at the administrative record and you look at the notes from said we're literally days day after day after day there is activity on this file leading up to the decision after he records or indicative that he can't do his job according to the job descriptions dr brock had a veil of will to him that information as to his medical condition his medical treatment the test that were rendered there is substantial evidence on the sliding scale to support the decision made by the plan administrator to go beyond and question the quality of the batticaloa evidence is really obligation to review evidence that they couldn't have reviewed when they made their final decision we're purging this court to reinstate the decision of the plan administrator to reverse the decision and find that the plan a r acted within the scope of their authority thank you thank you very much tied session for