case number thirteen forty four fifty stephen stockman versus g e disability and medical plan and all oral argument is not to exceed fifteen minutes per side mr lyons for the  appellant please the court my name is scott lance our bro present the defendant appellants met life in general electric life this built in medical plan i would like to reserve three minutes for rebuttal the single issue in this left foot function as expressly required by the plan or has functioned in his left foot as determined by about life the following three undisputed facts from the record conclusively demonstrate that stockman has function in his left foot number what in may of two thousand and eleven a year and a half after the accident stockman walked into his doctor's office without any assist of the vice he put full weight on his left foot and had only a mild  although it complained at the time of some pain and swelling his doctor told him he told his doctor that the pain was relieved by walking in the swelling was made worse when his foot when he was on his foot all day even even though he was able to walk in the suffered some permanent loss of function but the plan clearly requires permanent and total loss of function in the play and he also had pretty much a non functioning in that in that  been twelve months of of a permanent total loss and then the claim is submitted and then the claim would be investigated that that he can't submit it or that he can't win the benefits that is you know suppose that whatever it it's that happens the the medical evidence is quite clear that it's never going to improve if it is going to be permanent and he files after a month the way i read the plan is he can't get the benefits for twelve months it's a waiting period is not right that's exactly right and i write that that's a waiting period for this non severance that is a correct me if it were severed would he get paid as soon as he filed yes he was ok yes but it's a waiting period in the event of the claim is based upon an alleged permanent total loss of function you want to have some evidence exact we want we want some time in order to medically determine whether this alleged permanent loss is in fact permanent so there's a twelve month waiting period before benefits would be payable but at the end of that twelve months it still requires evidence that there's a total of foot function and and that that total loss is going to be permanent so the total loss would be determined to be what again that would depend upon the medical evidence with some assistance device and again at the a year to half after this accident he walked into his doctor's office without any assistance device so clearly he was using his foot as a foot the purpose of a of a foot is to permanent loss of total function again this is a dismemberment benefit the idea is that you've lost all function in your foot and if you're able to stand put full weight on his foot as he could if you're able to walk even with that that are to stand the balance and to walk in this case he could do all of those things there's no use you weren't saying that standing alone was necessarily good enough about this case you've got standing and walking with a limp ye i'm not saying that standing alone would be good enough although i think you could make that argument that there's still some function in the foot but that's not the record in this case the record in this case is that he could do more than just stay and you could land her in a way ambiguous should that be construed against  total loss of function so that can't be interpreted any other way otherwise i mean if you say it's not permanent you're completely reading out of the plan the essential plan requirement that the that the total loss be permanent it can't be interpreted any other way there's no other reasonable interpretation so again i want to i want to emphasize that the medical evidence in this case is that this is coming from his own doctor was that there has not been a permanent total loss of function his doctor was express asked what you're really saying is that there is loss that is permanent but it's not total and there's loss that was total but it wasn't permanent and the plan doesn't pay for it for a loss which is temporary and total war for a law which is permanent and partial the plan expressed the requires a loss of as both permanent and total and again i can't say it any better than mr stockmen's own doctor said he was asked what this big event considered a total loss of function and kids severing those items of function we were talking about locomotion standing balance his answer was i would consider this a loss of normal function of a plan doesn't pay for benefits loss of normal function it requires a loss of total function and again dr barnett said it is in my opinion that steven will never have a normal flight and can expect to have some functional impairment as time goes on and he says i expect steven for the rest of his life will require at times the use of a cane for brief periods right maybe he will not use anything at all but i don't anticipate him using nothing at all for long periods of time for reading that's a fair reading and again so there are times when he may need to use a cane there are times when he may not need a cane but the point is that he has function in his foot if you can walk even with this with the use of a cane it's clear that you have put follow so true that it seems that if he does a lot of walking during the day he gets tired or gets worse when he's used it a whole lot during the days that fair that's what he complained to his doctor that if he's on his foot all day he begins tics you know experiences more severe pain or absorb more severe swelling but he also said if you walk one point he told his doctor his walks his pain is actually relieved by walking so and i want to i want to make emphasize three points about the this medical evidence we are asking this court to rely on the opinion of a medical expert retained by metlife although this is also in the record in the form of the opinion of dr dale bell rather rest in this court to base this decision  barnett objective medical records as well as on his opinion that mr stop and regained at least some function his foot he was able to use his foot to stand balance and walk and again metlife wasn't even present when records are they like the may twenty three the may twenty three notes may twenty three twenty eleven visit that's a normal medical right his that's what we're saying the key evidence are that are his office notes showing the recovery after the surgeries and remember the time that mr spot when was unable to walk that coincided with the time that he had this infection and he was having multiple surgeries but the infection was healed that's in the records as well that when he went in and in in august of two thousand and eleven there was no longer any sign of infection and the time that he couldn't walk coincided with the time he underwent for this infection he underwent six surgical the bride nights over a period of about eight months and that's when he couldn't walk but again that's not a permanent condition once that affection was was healed and once the surgeries ended and he had therapy he was able to regain use of of some function of his foot yes it will never be normal but he doesn't have a total loss of function and again this isn't this isn't just my life opinion this is the opinion of his own doctor and that opinion is an contradicted by any other medical evidence in the record court my name is joe mcdonald and i represent the i believe in this case stephen stockman i do believe that your question judged on the spot on and i think for the first course of business here we have to read out loud these words because when you put them all together as opposed to what my colleague is offering there is more to this than permanent and total the loss of a hand or foot means that the hand or foot is severed add or above the wrist or ankle joint or means to permanent and total loss of function of the hand or foot as the result of an accident after the loss has continued for at least twelve consecutive months now my colleague is offering to you you can find out administrative records seven ninety three that when the application was filed the first thing that dr barnett wrote he has not been weight bearing the left leg sense eleven three zero nine  and in see in this case is modified by at least twelve months and this is what judge rice had a substantial problem with there are in this case the idea that you only have to be permanent for twelve months in order to alter the benefit me ask you that because i was kind of interested in which one you were going to emphasize suppose what happens is there are some traumatic injury and the doctor says you're going to have to be in bed rest for thirteen months and at the you're not going to be able to use it at all and at the end of thirteen months it's going to be perfect you can run jump skip hop whatever you want you still win then yes i win because in this policy there are words that are not defined they are not defined at all and those words would be permanent total and function really the word your for this argument it's really permanent because i gave you total in my hypothetical yes and you're saying that continued for twelve consecutive  months affectively defines permanent rather than defining a waiting period right out of her statement yes ok yes and and as as just da was pointing out i think that there is another alternative perspective which we have offered in our brief the function definition of function it when it is analyzed is encouraged according to webster's is a any of a group of actions contributing to a larger action and so stockman has lost parts of this use of his foot he cannot run you cannot jump you cannot hop and he walks with a limp now it is will be clear that this is a separate argument that even if you're wrong on the first argument you say ok this should be read as the permanent and total loss of some function of the hand or foot what i just yes what i just offered to you was as we briefed it and the concern the judge rice had and the reason i offered two of them to you because there seems to be some recitation of the case law that ambiguity exists when at least two reasonable interpretations are are found and i think you've got two reasonable interpretations of two separate portions i do reasonable interpretations of those words all coming together when you say all coming together as i understood our conversation you first say if he's down for twelve months no matter how good he gets you win because twelve months that's to me linguistically separate from saying function means any function some function in terms of them being together i don't know the name of the case i think it's wolfe ursus versus quality chemical w u l f it does offer this idea that if you're going to argue an ambiguity in this type of environment you should at least be able to offer two reasonable interpretations of the contract language so judge rice was very concerned about the idea that when we have a variety of reasonable interpretations and we read met life's position what we're finding here is that they have a different for protection of permanent and that even though you fall off the roof and you destroy your calkins bone you've got to prove to them at all points in time that you are permanent for avar and if that were the case i'm certain that metlife would have done a little more at least to try to define what that was going to me if stockman has the burden of demonstrating that he has to be permanent for the rashed of his life at least they could spare a little and make sure that that is clear you can say you can i want to metlife can look at the claim for the first twelve months but then your use must never be available to you could use any abundance of terms to make that clear it doesn't have it in the same paragraph we're talking los so it starts out last means complete severance or something else so doesn't that help the interpretation some because clearly complete loss is up here and then what we're talking about is how far up do you get to be total when i read that judge box i read that as the first part of that sense being a political only to the severance and even as as the my colleague in his of the phrase loss is defining both right loss means severed or the language we're talking about but those are two ways of getting to loss isn't that the grammatical structure it could be well that's what it says loss of hand or foot means severance or this language it it could here is that as matt life continue to evaluate the appeal or the submissions of mr stockman in administrative record one thirty one you will find that after they reject their application before they file the appeal and they do have some evidence of stockings stockmen's injury and stock in surgeries they say thus claim has been carefully reviewed and according to the information provided to met life we have not been provided with evidence that the losses continued for at least twelve consecutive months they have an opportunity there even where we have a very limited submission to met life i'll give you that to highlight at least to him you've got to be permanent forever you can never walk ever you can never stand over my it's just simply not there that the difficulty that this argument brings and i think that story at the time of that rejection was that less than twelve months after the accident that the one you were just speaking that was after twelve months that was august ninth of eleven he fell off the roof or fell off the ladder in october twenty  there is a point in this case that is brought up by my colleague that is difficult and we should just address it and that is this split between total loss and normal loss and there seems to be universal agreement as to the panel has already noted that for the first twelve months both met life and dr barnett agree that he didn't is foot never touch the ground after twelve months actually around the fifteenth month you begin to see these medical notations we're stuck with is coming into the office he's walking he has difficulty but the important thing is as we call it normal what is normal i don't really have a good idea but i know this is what normal is normal is pain all the time normal is always using or at least most of the time using a cane a crutch or a walker or even a little scooter that he has a new normal takes eight bike in a day now if that's the new normal then i really don't want to be normal i'd rather just from his statement not from the medical records that is from that is from dr that he's using the scooter is early on and then he might some time in the future need a scooter of his arthritis worsens that right the scooter use i don't know that it's confined judge to the early days like you are when i say that the actual use of a scooter that's the only thing i saw if you have a citation i'd be i'd be happy to look at it but let me ask you one other thing about normal because the language doesn't say loss of normal function it does not if it did that you would be home free and i'm sure they would pay it if it says you know we will pay you if you lose the normal function of the foot so i mean simply normal other than it being a word that appears he'll never be completely normal he can do this he can't do that but that's not the definition right normal is is not really difficult well it's not defined it's not in the language that we're not i'll give you that judge and not in the language that metlife offers in this case and it's policy that that is the policy  d i agree i agree but i'm just as we go to consider what normal is we know that normal includes a total loss of his ability to run to jump to do judge rice in his in his argument or in his his decision pointed us to the problem with that interpretation which it really gives met life  unlimited opportunity to cite to any evidence however small and on the point was not lost on me because even if stockman at fifteen months or eighteen months if daughter's encouraging him look do what you can take a few steps if you can at that point are we trying to convert any little bit of progress into the absence of a total loss i don't think that's what this policy was designed to do and i really have a problem because it throughout this record there is encouraged from stockton's position to get out there try to do what you can and although he is continually having problems judge rice i think hit it on the head he said it gives them the luxury of citing to anything any small change no matter how tiny to say it no longer have a total loss your version is that any loss of function however small is not total because we just talked about some function any function and then the question is is either of those reasonable are we really on an aggregate definition of total compensation cases to help determine least some some mild guidance as to what a loss is a function and the one thing i want you to know is that those cases are all the same package they are writ of mandamus they are only there so far afield from what we have in this case as it's an overall review and then the other thing is that in terms of  the requirement that the equivalent that stockman must suffer a dismemberment or amputation is very weak in met life's comp in its contract it says so as it relates to  and finger on the same hand will interpret those items as if as if is the word that uses as if you had lost them through if you take action it does not do that here but yet they are treating stockmen like he policy the play end here is designed to pay benefits in the event of an accidental death or dismemberment out now it doesn't require little literal dismemberment case of a loss of a foot but it requires a permanent and total loss of use and again that we seem to be my opponent seems to be dealing in it in an alternative universe or maybe an alternative policy where permanent doesn't mean permanent and total doesn't mean total but this is what the plan says this is the plan and this is what controls his right to benefits and this plan says that loss of a hand or foot means is severed at or above the wrist or ankle joint or means the permanent and total loss of function of the hand or foot it it really can't be any more clear that the word permanent and total are both in there he wants to say will permanent really doesn't mean permanent total really doesn't mean total they mean these other things but this is what the plan sets and to interpret this in any other way would be dig nor the plain terms of the plant and even the district court you know didn't find that th plan was ambiguous it said to the extent that the plan is ambiguous and clear the plan is not with respect to the thumb and finger or human that he's making what is the exact language of that portion exact language is that it says while it's of thumb and index finger of the same hand means that the thumb and index finger are permanently severed through the third joint from the tip of the index finger and through the second join of loss of function there is that's good around there isn't but so will take that one that's worse when there is nothing but i just want to be clear on what the language was yes and i think with respect to just a couple of other real quick points here  the scooter use yeah that's in a statement and there's no specific time for when he was using the scooter but again if you read the entire statement there is something isn't there in the medical notes during the first year that's the exact thing if you look at the medical records that's when he was restricted to the scooter after that twelve month period is able to walk into his office and even his own statement says since october twenty i have not had use of my left foot and still do not have full use of this foot he says during the period of october twenty eighth two thousand and nine and october twenty eighth two thousand and ten i had continuous surgeries and no use of my left foot but again so the no use was during that first year when he was having the surgeries to treat the infection after that i all of that is just from his own statement that is about a year and a half down the road that's attached to his right it's not a medical state right at the same thing with the state by could in a day there are you know that's in a statement there's no timeframe but again and in may of two thousand when he was walking into his doctor's office he did that and he said he was not taking any narcotic pain medication at that time counsel your time is expired with that your own request thank you will be submitted and the