please the court also clients representing appellant richard carey like to thank the court for agreeing to hear this case which i think will be beneficial to my client and also possibly thousands of other people that have been let down by the insurance company nine he was injured at work shortly after he was employed and he had to have surgery but he went back to work and then within the next three four years he was involved in two separate car accidents which the second one was so serious that knocked him unconscious and required to have him have extensive surgeries the only requirement or the only way that the employer could possibly him back at work if they would agree to workplace accommodations the employer did grant workplace accommodations the doctor said he might need it for the rest of his life and put those workplace accommodations were or that he was required for two hours every morning to go to physical therapy and at that point he would do exercises with machines he would stretch and afterwards you need to ices joints and also  careful i think if i remember the district court's decision in this case it wasn't about the nature of your client's physical difficulties it was about whether or not an appeal was timely saat is all right so let's focus on that because i think that we don't have the so the record before us to to i'm not disputing anything you just said about your class situation it seems to me you make you raise two points one is that the department of insurance effectively was the advocate the representative for your client and the second is the idea that an appeal in this case would have been futile in light of the correspondence that was sent to the department of insurance correctly or could you focus on the talking mr kerry needed to have two hours of physical therapy every morning with his employer his employer agreed to let him have that and mr kerry work even though his condition was getting worse and for buckley twenty years with those accommodations at that point a new president came in and said no we're no longer going to allow you to have your physical therapy they didn't have the accommodations there and you want him still from the time where you were working until the new president came in you should be able to do your work your birthplace physical terror therapy at work in the morning which was totally ludicrous the second issue is when we it means that you have to look at all the files critically and you send it out who are you and it's in doubt to an independent medical expert now what the insurance company came back with in replying to not it was that yeah we looked at everything in fact if i may quote they said  for one more time on in reviewing all the documentation in your file we did not find the medical evidence supporting a change in your condition that would have prevented you from perform the duties o appeal it further and then in summary judgment motion the court allowed and what something i didn't think they should of was a declaration from an employee at united the declaration was from a lo kerry's deal i complained i did not conduct a substantial review of his claim rather my role was limited to determining the history of the united initial claim decision and then summarizing the history so let me stop you right there so that letter or that declaration is there anything in the record to suggest that your client was made aware of that during one hundred eighty day period no you don't so so even if we were to disagree with you as to the  declaration your point is it's kind of a who cares because i didn't know and so from your client's perspective she had this letter i'm here i'm sorry she was last case he had this letter and that was that's what he had yes and so you're saying based on his reading of the letter he would have understood that that his case had been appealed and real a value weighted of a close question for me there's two two things i want to inquire about one is in its response to the d o i complaint it looks like united at the one of the last paragraphs in the letter explicitly reminded mr kerry that he still had a right to appeal its denial of benefits and that he could do so within one hundred eighty days of the original denial i'm just shouldn't that have alerted mr kerry that it wasn't an appeal i mean why would they have put that if that was the response to the appeal that doesn't i'm trying to figure out how that your honor my client believe that we have valuation which is clearly what it was supposed to have been and it's clear what wasn't done he was under the impression that that was what was done and therefore have been futile for him to do that the california and he actually he had already appealed it why would they have added a provision there saying you have a hundred eighty days to appeal probably the same reason they have it you can contact the california department of surance it's a way of they're out they should have done a better way of saying that could and then my next question is what's the rush standard of review here what how do we look at this is this i mean because it's for the futility it's the you know doomed to fail but is abuse of discretion i to fail yes your honor and they did on summary judgment motion which they should have kind of gave deference to some of the things my client was saying and my client at that time was not represented when he would see that letter back from the insurance company he was not represented by an attorney he was represented by what he thought was the california department of insurance which acted and has a responsibility and obligation to help the  policyholders but for you to prevail we don't need to agree with you on the deal i represent a point correct yes your honor that is correct but it's most things were i think that there's an issue of question of whether hold and to the bigger question is yes until i step in is this labor representatives of people who write letters to them i think that's a much tougher argument for yeah yeah i understand you are not persuaded and based on the fact that all the things that they did where they tried to say that he could do it the two hours of physical therapy while at work on his employer wouldn't let him do that and no employer would and also to basically they know what a revaluation yes they didn't do it they pretty much said and convinced everybody that they did and then in summary just a motion they come in and said oh we found somebody that actually did it and we're and this is what she says she i just summarize me at least the courts anyway and on behalf of united houma insurance company i first want to address the communications that united of omaha had with mr kerry the denial of his claim was communicated to mr kerry in a letter dated february twenty seventh in that letter united of omaha the area clearly informed mr kerry that he had the right  determination and that if he wished to appeal that then he must submit a written request for a review to united of omaha gave him the address and the department to which he communicated to him that he had the right to appeal under the plan told him how to do it told him where to write told him it must be in writing told him that he also had the right to bring a civil action once all his administrative rights to review had been completed in that same letter your honor at the end united of omaha communicated to mr kerry in addition in addition you have the right to complain to the california department of insurance if you wish to do that then write to the deal why at this address in los angeles after mr kerry got that letter what he did was he complained to the deal why the g o i in turn wrote out of omaha and said we received this complaint from mr kerry please respond to him within twenty one days in august of two thousand and eleven lori near who is a senior well i didn't say please respond to him the  asked to read a value wait the problem that's correct ok reevaluate the problem and communicate to mr kerry and response to this complaint and in august of two thousand and eleven that's precisely what explained the company's response and concluded her letter with the statement that you have the right to appeal to united if you wish to have the company review your claim if you wish to do that right united of omaha at this address  the for road well i would submit your honor that a reasonable reading of that letter wouldn't lead a person to believe anything else other than he still had the right to request a review from united response you know you know i had said that in reviewing the documents in the file it had determined that kerry was not disabled i'm just trying to figure out why should we read that to mean something other than a substantive review done again you know it's seems like that sending a message that it was  substantive review and to so why would he figure out that it would anything would change if he appealed it well the reason is your honor and that very same letter united informs him that he could still appeal to united and let me address that futility argument your honour's the futility argument has no merit and here is why a complaint to the deal why and the company's response to that complaint is completely different than a response to a claimants request for an internal review the internal review process that set forth in the governing plan documents is mandated by the arista regulations and the plan and there the regulations are very specific about what needs to occur in the process of an internal review the review is completed by individuals who have no prior involvement on the letterhead i mean so in terms of fertility decision mutual i know you didn't write this letter ms wang but given the mutual is saying you know we've reviewed all of that condition your file would not find medical evidence supported changing a condition you may appeal to this address and if you look up at the top it's the same address from the people who just said you don't have a calling so i'm not sure from his perspective i agree internally inside mutual it's a different process but to him he's being told you can the first letter united of omaha information you have the right to request an internal review to united and in addition you have the right to complain to the d l why then in the second communication united informs mr kerry the sentence this is in response to deal i complained and then concludes and says you can appeal to united at this address let's just concede that you know was he understood it was a separate appeal or his own appeal still there's a futility argument here i mean exception and so i mean so he's saying i mean we have to i guess look at it say whether it was a zone a b or something else is there something here that indicated to him that any appeal would have been futile so what's your response to that when he gets this letter that says you know after the  the problem and then in response you know the night he says well we've reviewed it is not based on any perception of futility by the claimant in order to meet the futility exception the claimant has the burden of coming forward with evidence that the appeal process was demonstrably doomed to fail that evidence is utterly lacking in the record he can't establish if you tell it because there is no evidence that had united follow through with the appeal process and response to a request for an appeal had brand new people look at the claim had medical consultants vocational analysts review this that the process would have ended in the same result so you're saying that's how we have to look at the burdens on him to show that it was demonstrably doomed to fail absolutely not that he perceived based upon speculation that i had healed it would have been denied and what's your standard ridiculous they tried to they basically ignored what the california department surance request of them and then at the very end they came back and with this person that w declaration saying gee i really didn't do this at all they're just kind of kidding in the first place to me it's clear that they had wanted to push what my client from the very beginning thank you will be