start off with the page fifteen that the district court decision is really the crux of the matter the district judge that it was reasonable for hartford lawyers to determine that are a was the employer that's really the crux of our argument here we we believe this is really a contract case and if you look at the point language of the policy at issue harper like position or the puller for terms of determining the amount of benefits violate the contract st if you look at the definition of the employer under the policy itself as r e i and affiliates there was no disputing the record that scarsdale was an affiliate and therefore is included under the definition of commissions you know and hartford never calculated any investor mayor doing this is in commissions under the policy in determining the amount of his monthly benefit some of the things that the district courts the courts that it was reasonable for harper like to rely on documentation and information provided by aria but that's not what the policy says if you look at page sixteen of the policy it says hartford and says how we determine your amount of benefit well no because i think the way that hartford set up the plan it covered r e i which was like the overall agency and it cover all the affiliates and there were fifty of them so the one point convert the employe period but it doesn't it says and it's silly and beyond that the w to use themselves and all the payroll stubs there's not one to help you to that shows that mr mayor was paid would weigh against the insurance company harper not against under it and i think no true as a matter contract and season but also a wrist good yes you're just saying on the general principle of insured as a general principle and the secondary thing is this you know if the records show that already i proper ringler so she gets incorporated proper paid mr mayor money and then hartford said well you got payments from both of these entities and we're going possibly have the permanent it's only approved a law take for trying to say how much did the guy make that we can do with disability benefit i mean they basically took what his draw was processed through a payroll  those bonuses and commissions and again if you look at the policy that's just not consistent one with the language of identified but it's not consistent with the user to his employment arrangement works is that there is  consider his employer for purposes of calculating benefits you know again the problem is that when the heart forgot all is w two not even the one of the guy from r e i proper mr henri they all were generated and all who the employer was and they all said i mean the way harford interpret the policy mr mayor shouldn't get any money because he didn't really receive any income but all from r e i they're saying r  help them i'm not sure which one right so then if r e i proper paid the insurance premiums then doesn't that undermine the argument that they have nothing to do with his employer  i don't think so because again if i just look at the definitions in the actual policy about how you determine his monthly benefit which is on page eighteen the monthly rate of basic earnings it doesn't have that kind of language it just says your average monthly read including bonuses in commissions from the employer and in that take that mr mayor didn't receive any money from r e i proper and all of his money was paid by stores dale independent and so sc the hartford life decision in this case calculating benefits was it was a classic and straightforward exercise of discretionary authority there was a dispute regarding the information and records that were to be used to calculate mr mayer's monthly rate of basic earnings under the plan and hard for life exercised its discretion to determine the appropriate facts about those earnings to use in its calculation m  starting to missions were part of the picture right they were and and wrangler associates incorporated advised hartford and provided records to hartford about all of mr mayor's earnings as it saw them and it did not include commissions it include a clue to the single bonus and mr mayor's evidence in the record doesn't point to mr mayer receiving commissions from anybody what when you look at the record that he relies on there's a claim that ringler associates scarsdale received missions from various entities other than ringler associates incorporated but there's no evidence that those commissions were ever paid to mr mayor so what hartford did what hartford life did was rely on the documents and information that ringler associates the home the parent company provided to hartford life and as judge it said and found it was reasonable for hartford live to determine that r e i was the employer of the plan administrator in the policy holder and to rely on the information that it provided i would point out that another factor here is that our ai consistently reported mr mayor as earnings and documented those with pay stubs and the like mr mayor's assertions about his earnings changed during the course of the claim and his his claim to earnings increased during the yes he does write that in his reply brief in the record during the administration frankly it's not clear what he's saying about those commissions because he asserted at one point that he there were this there was nine hundred thousand dollars in commissions during the two years in question so he doesn't claim that his earnings for purposes of the contract were nine hundred thousand dollars so it's not clear from the that the only tax documents the only tax returns that are in the record are the amended tax returns i don't believe the earth or the the returns that were actually filed four hundred and twenty  appeared to show responsibility for premium payments that hadn't been on the pre claim w two s for those years so there was there was no clear position from mr may r regarding what he claimed his his earnings were during the during the course of the i do just want to point out that mr confusing oney made a made a  statement during his argument that if there's an ambiguity in the policy it should be interpreted against hartford life but because hartford life has discretionary authority here the case law in this circuit is clear that that discretionary affiliate your honor the record is not clear on that my my understanding and my belief is that it was formulated that way so that people like mr mayor who are i would say a statutory employee of a company other than ringler associated ank would be eligible for coverage under the plan  and you know could it had been drafted clearer to make it make it clear that i was the one rip you know the plan administrator and was reporting wages and paying premiums it probably could have been but i do believe that the impetus behind that the way it was drafted was that so employees but so then that means that you're going to you're saying that what it means is that  you know i think would be it would be appropriate to split it that way but the way i look at the at the policy is that the term unclear d in the policy is looking at the relationship with hartford life  not necessarily the relationship between the employer and the employee doesn't define employer as you know a statutory employer for tax purposes for purposes of reporting w two's and so forth it defines the employer d of the policyholders and so you know i think that it's it's entirely possible that you could have an employer under the terms of the policy  you know but there's a separate employment relationship for purposes of tax reporting and research ask you also just about this this question of the access to documents that are generated on  you know if the if the regulation says that that you know a policy holder or the insurer gets access to documents upon request why should that be why shouldn't that extend to be appealing to the insur generating new documents on appeal that are going to make a difference in the determination and the only fairness or the purpose of the regulation for them to have access to those documents the regulation that the governed this claim doesn't provide for that what it provides for is to occasions when the plan for the sherry is obligated to disclose documents one is on request that have to disclose documents that are relevant to an initial adverse claim determination and the d l l has said that disclosure is to allow the claimant to decide whether to file an administrative appeal  decision was made and to address and to assess whether a further appeal would be justified secondly the courts the other courts of appeals who have considered this question have have have held that five which are essentially a mirror image that require disclosure of documents regarding what the reg called the adverse determination on review right but after a limited set of documents t no it's ever it's your honor everything that's relevant to the adverse determination on review so both both provisions require disclosure of quote unquote relevant documents which is defined in the r insurers review both the initial one and repeal and after the appeal i would disagree with that your honor that that in the section of the regulation it specifically addresses the content of the letter deciding principle that the claim is has access to all relevant documents that were generated in the course of making the determination yes but after that when the mission is made not not while the the appeal determination is being evaluated  and i would point out your honor that the rick the regulation was amended or claims filed after april th team and the department of labor added a new provision specifically limited to plan providing disability benefits that requires the kind of disclosure that mr mayer d is arguing for here disclosure of new rights or that the new provision the new provisions there is to provide documents on reviews of the new regulation makes it clear that the say that the department was clarifying to link the original regulation should have been understood that was misinterpreted or there providing a different right to chose as you think it's a departure from the earlier regulation i do your hon because the subsection eight hundred and twenty three which is the one that we're debating here applies to all claims for all types of benefits life disability and health the new provision in the regulation dollars remains in the in the regulations so if one interprets it to three as already requiring disclosure of documents while the appeal is pending then the new provision d is superfluous because it it's a narrow were disclosure requirement then h twenty three so i don't i don't think it's reasonable to interpret h twenty three as requiring that type of disclosure i would add one more thing  may under under the nd circuit's rule in halo where strict compliance with the regulations are required i don't think it's appropriate where where hard for life governed its conduct based  on the manner in which this provision had been interpreted by the multiple circuit courts of appeal over the years for a district judge to say or circuit judge to say well we think that's wrong we interpret it differently  and hartford life didn't strictly comply with the provision as we now interpret you know i do think that where there is strict compliance with the complex regulation required if there's some ambiguity about was employed by r e i proper that was his employer when the record shows that he wasn't paid any money from that entity it's not it's not it's wrong on their poppy and it's also not reasonable on the law and i think that's really where it's being mean crops comes down and if you look at the november th two thousand and seventeen appeal decision that the harper made that's in the record at two hundred and thirty three you know again that's what they're reiterating or saying we're at these other numbers that the insurance company would still be in a position to challenge whether they were really received by your client or whether  to the weather they stayed with ari scarsdale in other words part of what what what what what this looks like is that with regard to the ira scarsdale he wanted to build up the numbers and he took ongoing and you know yeah in terms your honor of the minister in the actual plan yeah yeah i think that that i think that's right i think r e i it minister deploy and for all the brawler for the fifty affiliates who were all independent but they used r e i a kind of a profit service almost from the payroll trolls and everything else but as far as that in that like the sun i just made your honor for