insurance company this case involves a claim for payment of disability benefits under a recipient but unlike most disability cases in this case there is no dispute that mr ten passed is disabled and there is no dispute that he became unable to work on sunday august st when he had a heart attack required emergency hospitalisation and surgery subsequently suffered two strokes and was in the hospital for at least a portion of every day for the following two weeks followed by more than a month of inpatient rehabilitation the only question is the amount of the benefit that is payable and the group policy provides the answer to that question the policy specifies that the benefit is calculated based on the employee's earnings on the determination date and determination date is a defined term in the group policy that's defined as the last day worked just prior to the date the disability began mr ten passes disability began on sunday august  therefore lincoln national reasonably calculated his benefit based on his august salary which was twenty five thousand dollars mr ten past disputed that calculation and wanted to include a salary increase up to thirty thousand dollars that was set to take place after his disability on september st he wanted to create the fiction that through the policies active work provision he could never be disabled on a weekend or on a holiday under any circumstances regardless of the medical facts because he remained in active work status the district court erred in misconstruing the active work of disability and determination dates as those terms are defined in the group policy and in adopting mr ten passes interpretation as john about when that definition of active were actively at work was injected into the dispute and it looks like from what i can  tell the original determination didn't didn't look to that definition because it really doesn't have anything to do with either determining what disability begins or determining the amount of benefit  determination date term that you just referred to it has to do with an entirely separate question about continuation coverage and whether an employee interchangeable terms was injected into the dispute at the appeal stage ministry of appeal stages and my reading this record correctly yes you are your honor your you're reading the entire thing correctly the active work dispute was injected by mr tan past in an effort to try to extend his coverage and extend increases monthly benefit to include a salary increase that was after  disability it was not part of the determination because actively at work functions exactly as your honor just pointed out it is something that that determines either when an employee becomes eligible for coverage when increasing coverage can take a fact or it also helps to continue a conversation when an employee is absent from work whether that absence is due to a holiday a workday i'm sorry a weekend a non work day any non work day active work continues coverage throughout that period so there's not a constant interruption in coverage every time someone goes home for the weekend they're still covered and they're covered because they're deemed to be actively at work unless they are disabled and that's the part that the district court and mr ten past got backwards active work status isn't that prevents an employee from becoming disabled it's exactly the opposite becoming disabled removed somebody from active work status and so as soon as mr ten passed became disabled unless clause within the active work section of the policy correct primarily yes your honor it's pacifically states unless this abled on the prior work day or on the day of absence  it also goes on when you're looking at the dates in which an employee is considered actively at work it excludes disability related absences for example number three specifically refers to a non medical leave of absence so it's not intended to cover a disability related absence same thing it includes you know approved medical leaves for family members m l a type leaves but not for the employee's own disability so it's never active work is never in candide to continue coverage well it is not intended to prevent a participant from becoming disabled when they are absent from work on these vacations holidays etc the active workwise continues coverage when a participant is absent from work but active work does not prevent  disability from occurring while that participant is absent from work and the district court held exactly the opposite and you hear that ten us was covered he has coverage eligible yes coverage there was no break in coverage at the time that he was stricken with a heart attack on sunday the st and so there's just no eligibility or disability oh yes yes and yes it's all of those things that you mr can pass in fact was was paid benefits through the maximum benefit period there was no question that he absolutely had coverage at the time of that heart attack his claim was promptly approved and the dispute arose because naturally he wanted a higher benefit amount but the way that the determination date and the policy generally is is structured a determination date the the amount of your benefit is based on the salary that you had before you became disabled the determination date must always be before disability and can never be after disability it's based on the salary on the last day worked just prior to the date disability begins for mr ten past that was in august two thousand and fourteen and lincoln national appropriately used his twenty five thousand dollars salary to calculate his benefit that decision is it's reasonable it's rational it's supported by substantial medical evidence in the record and it should have been affirmed under risk is arbitrary and capricious standard of judicial review and the district court erred by holding the appeal letters were explicitly stating hey when you became disabled you were no longer in active work so they were addressing his argument that is active work status continues so they were expressly addressing the question i have for you is is i know this is it's counterfactual and i'm asking about the the work that the arbitrary and capricious standard is doing on review here on this fact pattern because it seemed to me when i read the briefs you can tell me it's a mistaken view that lincoln quite easily could have determined the disability date to have been september nd now i know it did not i'm  well aware what happened but it seems like it could have looked at this and said you know the heart attack was unfortunate he was treated he was released he tried to go back to work he gave it a shot on september rd and unfortunately experienced the stroke and we know what happened from there and that lincoln could have looked at these exact same facts and said totally disabled probably september nd heart condition to be sure on august  st if your client had done that would you argue that it's reasonable i think i'd be in trouble in front of this court arguing that that was reasonable he was in surgery in intensive care on monday september st so i think it's a little difficult to say that he was capable of working and he was not an able to perform his main duties he's he's undergoing how he went and to the office on september rd right so he attempted to go for a portion of time on wednesday that is correct you know anyone he was there for four hours so if link encounter factually had determined he gave it a shot on the rd the disability sets in the day before so working day tuesday september nd is that reasonable enough to satisfy our returning caprices review or would it  under the facts that we have here i don't think that it would be and there's a couple reasons for that in the primary being there's an entire history and body of case law that even if a participant strains to go back to work does everything that they possibly can i mean this guy had to leave because he was having a stroke that had started days earlier and if if it riseth administrators were  that because somebody is able to drag themselves into the office for a couple hours and send a few e mails from the hospital they're capable of performing the main duties of a tax attorney i think that would run afoul of the pretty consistent case law that says the work of the workability has to be more than demand a mess and you know it did certainly reasonable to say that at the time he had his heart attack and he was hospitalized undergoing heart surgery that at that point he was not able to perform the main duties of his it's his job as a tax attorney i reserve the remainder for rebuttal thank you thank you ms just  this case is really a question of whether or not lincoln national was being sure the administrator and the fiduciary of the group policy should be held to the plain language that they broke the construction of an insurance of active worker actively at work has to do with whether coverage is intact and there's no disputing that coverage was in fact so that whole issue  the key to the calculation of the amount of the benefit judge i would respectfully disagree in two ways the st being that if it was meant to only be an umbrella coverage term or term for coverage it could have explicitly said that well any i mean even right there the only place that those terms active work and actively at work here are in the eligibility section of the policy and the effective date section of the policy they don't appear anywhere else in the policy and in particular they do not appear in the sections of the policy that pertain to either disability onset or definition of justice disability or the amount of benefit though those terms just don appear in the operative sections of the policies that are at issue here so so that that whole argument about whether he was in active work status are actively at work is just a complete red herring in this case we ought to focus on the terms that actually are decisive here and that's the determination date definition and the definition of total disability and your honor i do not believe that there is a disagreement meant as to there being total disability but i would draw attention that in the definition of determination date with in the policy it does  reference the last day work just prior to the date the disability began no one else in the policy is there a reference to what is considered last day works so there is an argument to say that actively worked is the only definition within the policy they gives the reasonable reader the opportunity to define last day work just prior to the date the disability yeah it's a different term so if you would work with me on that premise and make your best arguments are part of the definition of active work or actively a fork in the premise that it would move to when feet is the date of disability the intensive care unit however he was the only resident in the intensive care unit in the economy wisconsin hospital over labor day weekend so where he was placed in the hospital is not necessarily determin of the severity of the heart attack or the mitochondrial infraction harlan continue to work while in the hospital i do not think it's outrageous to say that a tax partner continues to work remotely were instance the standard work week as defined by the defined by the employer is a forty hour work week eight hours a day so that would dissuade mr ten pounds from ever working on a saturday or sunday clear he was working at the office on saturday august th he was working at august th he was working at the office sunday august st he went into the hospital in the evening had the surgery the next day so just the heart attack was not as severe as you need immediate surgery and then communicated with his office the same day after the placement of the drug alluding stent that he reasonably believed he was as healthy as a forty year old and that he would be back to work unless his wife and he would not be back to work but would stay at home to get used to the medication so long as his wife didn't drive him crazy there was nothing from that email or his actions that would state that he was disabled tax attorney what was arbitrary or precious about that determination acted terminations arbitrary and capricious because none of the medical evidence that was presented to the claim adjuster or or taken saturday when he was brought in to the highland park hospital in addition the claims adjusters continue to move the goalpost initially the claims adjusters before the appeal which was one of the questions previously asked did start only monday it wasn't until the claims adjuster was notified from the employer about the salary increase that there began to be an issue regarding the date of disability all of that happened in the initial working for a it's a large accounting firm correct yes judge he's a lawyer the interaction that he had at least one of the e mails was with regard to a tax return and a problem that a client had with it and then him indicating that that would be addressed as a correct yes judge is the nature of his work whether it be that week or subsequent weeks or prior to that it was a record reveal to yes so it would be more to think of him has and managerial position that at the time he actually had anywhere on up to fifty different accountants underneath him and a partner it would be less that he acted in the role of an attorney or an accountant and more as a case manager so making sure that the clients that brought in the largest amount of money it's the firm remain happy to make sure that the accountants working underneath him were meeting their deadlines i mean if you noticed by the date that all this occurred with a very close to the september th date which is the end of the rd quarter where many returns have to be filed as law as well as the extension dates for corporate tax returns so at that would he be the one doing the actual returns no he's managing the different accountants that are handling the different cases and he a face for the different accounts now as to his his billing or how is building what happened during that period of the year and it wouldn't be an entry into the time system that i'm working for a company or feet per point two get three hundred dollars an hour rates and it would be i'm communicating with the clients to make sure that the clients are satisfied i'm communicating with my accountants underneath me during this very strenuous time of year where people's vacations and everything's being changed because we're nearing the number th deadline and making sure my employees stay happy his job is not to do the nuts and bolts as a lead tax partner his job is to work up business to keep things moving to make sure the clients stay happy to make sure that the employees under the stress that they're under stay happy and he continued to do that every single day until his stroke which left him paralyzed on the right side and the fish i'm i believe this court in conducting the review has to remain cognizant as well of the conflict of interest that exists when the administrator has both the discretionary authority to determine the eligibility for benefits and to take to pay the benefits when do you and i when we analyze such a case the standard of review may remain arbitrary and capricious but there can be less deference the court has held  over and over again in determining whether there was an abuse of discretion and that if there is and any remaining issue that that conflict of interest actually acts as a tie breaker  however that is simply not true the administrative record the joint statement of undisputed facts that was submitted to the district court for summary judgment and the entire administration record which is contained in that undisputed of fact which is entry forty eight in the count and the record does actually show lots of other evidence for instance the claim adjuster specifically asking the employer while there are any emails to prove that he was surely ryan which mr ten passed did not start did not was not admitted into until september th when he was released from the highland park hospital that initially said that the onset of issues until the nd stroke that he was unable to perform all the main duties of his occupation the other argument that is continued is there acts and that had to perform each and every duty of his main occupation all simultaneously at the same time we all have work functions that have a list of duties we don't necessarily provide every duty honor the only argument that mr tan pos raised in the district court was the active work argument it did not present argument to the district court that he became disabled on a date other than august st even in the briefs on appeal  specifically stated there is no dispute on that date and if and risk the administrator were arguing to this court that a tax attorneys ability to send an email from the hospital simply to let his team know i'm going to be out for a few days and to forward another problem for somebody else to handle because he was in the hospital and unable to handle the work himself the court would have no trouble finding that that would be an unreasonable position and that position doesn't become any more reasonable simply because it's being made by mr ten pos himself the decision that lincoln national made in this case is eminently reasonable to find that the man became disabled on sunday august st when he suffered a heart attack had to be hospitalized immediately had surgery the following day was followed by a stroke he was in the hospital every day for the next two weeks and it's not unreasonable for lincoln national to determine that he became disabled on august st that decision is well supported by the record the district court's decision should be reversed and