morning upon the decision of the united states district court for the western district of michigan appealing that decision on behalf of appellants live the life insurance company of boston and national city's twelfth amended and restated welfare benefits plan this is a case that involves a claim under arrest for wrongful denial of benefits sons or such in five o two a one b we appeal that decision and and i'll take each major point first we appealed the decision on the basis of the standard of review applied and second we appealed the decision on the merits with respect to the administrative record before the administrator first with respect to the appeal concerning the standard of review the court should have applied in our standard of review according to the supreme court and firestone liberty and liberty exercising yes yes they've delegated to liberty don't go to a farm and so the required by the law is that the plan provide had discretion liberty automatically is that your position or position is that liberty it delegated to liberty its discretion and what lee says is  has the discretion permit delegation and only are you saying that you don't have to have that third well what i'm saying is is that they did so in this case  term disability yes look it and it's be to long term disability that entire paragraph is missed there's no as i can find i'm happy for you to point it out to me but all of that big paragraph under short term disability is absent from an ex be to long term disability a and b klein's review on short term disability section five also has a reference to finish year status but section five under a long term disability page eight seventy five also has no reference to  i'm not finding boyer in this contract that discretion has been payouts to liberty can you show me where it is yes i just want to only answer question on page twenty seven ever be under long what the law says and i just want to back up a minute what lease said is there's no magical words there doesn't need to be express re delegation and nor does every duty need to be explicitly outlined those are what the cases say and if you turn and if  entity is a fiduciary to the extent it exercises any discretion and what condi condi case specifically addressed was an instance like this where there it was it such a disclaimer on a service contract because when you think about it service it's national that has the discretion and liberty is exercising exactly and it's so clear i guess that there are x somebodies exercise and national overturn the exercise of it no it did  liberty which is talking about writing rejecting will be process imposed in accordance with the sponsor interpretation as set forth in law well if you read the beginning of that that only pertains to instances where by law the sponsor is required under rissa to inform any administrator any individual who's misinterpreting the plan in writing that's all that means to your aryans you know position though it seems to me like the greater in the manner that sir that's been part of what about michigan affiliate absolutely and now that was absolutely a case that's not on point that's a case involved a court determining for purposes of jurisdiction whether or not someone had if i do sorry status but if it's determined  the plan dead and then what what the administration did in that case is they referred the decision the court then looked at what the administrator actually dead and the administrator actually referred the decision back to the plan administrator here you have a plan that couldn't broad and fit within the context of the overwhelming majority of the law as to the discretion and that it provides to it not only administrative bert's delegate and knowing that it has a very broad very broad how are they different i'm sorry how are the cases different they go in different directions shelby and hall yeah well so i think the comment i could tell you the common thread is that what the common thread amongst the case is the common thread doesn't help because they go in different directions and want to know where they diverge well you know all there is one of them well well you know that's not me to decide but i can tell you that with hall it was a prior similar version of this benefits the key is you know the cases of mean distinctions about particularly with respect to whether or not benefits were terminated whether or not they were initially granted in the first place and then we go on to make the distinction of whether or not even in the cases where they're terminated whether there's clear facts on the record to make a determination so that courts don't sit in the role of administrators and determining eligibility for  initially granted benefits under the own occupation standard she was never granted under a different standard an essential a a different criteria for benefits and we argue that the record has not been fully developed it's not information on which to make that determination if they were just wrong because they didn't that they did there was no evidence in the record beyond that march two thousand and ten thank  very economically there was significant back and forth about what generally the laws in terms of delegation i think that regardless of what the laws and delegation  is clear that terms of a plan must always be followed unless of course it was contrary to the law but that's not at issue here in the terms of this plans to state very specifically that any delegation must be expressed must be in writing and as has been pointed out very clearly it's simply not there sometimes when we get these mammoth plans and it always happens in the self insured it's like putting together a jigsaw puzzle try to sift the forest through the trees and figure out whether or not the delegation and all the other elements are there and we were quite frankly surprised to see that the language in that s t d and other parts of the plant just simply don't fall through to the long term disability determination it's clear the plan sponsor is it's clear who the the decisions are operative right i mean they're there and they're treated as the decisions of national they were in this case the question the question that the question is whether or not the review i just find hard to understand i mean they made the decisions on behalf of national because of the contract which gave them the power to do that somehow or else they would have done it i agree they certainly did make sure they're acting as agents of national seems they say they are acting as agents and why why doesn't the now also send all apply because in this particular case that in the end that's sort of where i begin then this particular case if the discretionary portion of this plan is going to fall through to liberty that discretion has to be delegated expressly and in writing and that's the civically in the plan and this specifically did not happen here so while liberty can make decisions as to long term disability determination but don't lose decisions become the decisions of national until national rules they do but then they'll then it's national exercising the discretion that's missing that seems to be the logic of all that well i understand it's in some tension with shelby county but it does seem to be the logic of that does seem to be the logic of all i don't see the different ice but what we don't know about paul is what plans that would suggest it didn't matter too much well not necessarily i mean you know you can imagine circumstances where you know third party claims administrators are making decisions in the plan is straight or has the ultimate authority whether or not they're going to follow through with that decision or reject that decision seek further review in those types of determinations if they're going to agree with him there's no nothing in the record to suggest that the plan administrator did any type of independent review of facts or circumstances here so if they're going to essentially i would suggest that they believe that well that they were understand the decision by liberty then the question is whether or not that should be done on their discretion and c that's fine i'm just it just doesn't seem to hold together i mean if it's national decision of national they have somebody make it for them they either have they either give the total special to them to make it and they agree to be bound by it or they agree to or they reserve the right to change it if they want either way it's their decision if liberty is acting for them if it seems to me is the argument of paul i'm not trying to make that argument i'm just saying that seems to be what hall is saying is that somebody is just like if they hire joe to make the decision i mean it will the company can't or jammers or jane just somebody at random they hired to and i ran and they'd hire an expert i suppose to do it for them i mean a corporation can't act without people acting for it right that entails lately different concept liability and in that case see what happens i'm i'm concerned about this this conceptual basis of baristas because different legal status from what occurs if you are merely performing a function on behalf of somebody else so you know to me i'm struggling with how this works because i'm looking at the documents but i'm also struggling with this conceptual idea that you can just named the do sherry status and willy nilly give it to anybody who performs a service for you because that to me undermines the conceptual basis of the responsibilities that allocation that are receive sets up purposefully which is why i'm looking for a contractual wind wage in which national city says i'm going to make you a ninth edition gary and liberty say as i am willing to accept that responsibility and i'm willing to stand liable under the provisions of the us is that not an important distinction but it most certainly is and i think that's the import of the michigan affiliated case that you were discussing earlier where courts are struggling to determine very specifically who in fact is  particular situation governed virus and who is not and it's you know for the reasons already discussed that there is no express delegation liberty is not but also because the plan makes clear expressly in writing that relate to the particular well i think that my client prevails regardless of the standard of review whether it's arbitrary and capricious or de novo but i also agree with the conclusion of judge monye that it's the novel in this particular case and when you fall judge maloney's review of the medical evidence in the case once you determine that it was to noble and then want to determine who's directing directing attention to the parties sometimes wanting to argue beyond what a particular medical record might say and bring us back to what the medical records actually do say in when reviewing the medical evidence on both sides this case seems to be you know a case study in where claimants are are in a lose lose situation miscall s p contrary to the universal comments of her doctors in the treaters where they say they do not think she should return to work they do not think it would be good for her she is not a candidate for further surgery we have objective medical evidence supporting her medical conditions by m r eyes in g s done after surgery which show that she has a surgical scarring and byproduct build up at the surgical site which is causing compression and the e m t shows at that site radiating pain into the lower extremities this is an unusual case where we are at the same time we don't have a claims of psychological overlay or milling or anything like that because this is a woman who despite the way she feels in the way her doctors common day to day to day on how she's feeling terrible there's objective verification for subjective complaints how it all makes sense how she really isn't a surgical candidate any further you don't want her on payments the rest of her life but she might not have a choice she opts to try to go back to work and that gets held against her  point if you don't try to go back to work then you're mullingar if you do try to go back to work then you're admitting that you're able to work obviously when she attempted to go back to work part time that didn't work for her and i think what judge maloney very clearly determined in this is why i say i think my client wins regardless of the standard of review is that the transferable skills analysis is significantly flawed both that there was d pontus who was the original i am me who actually saw my client for one short visit and then followed up with a transferable skills analysis that said she could go back and do some type of sedentary work and that done a fighting couple positions without any comparative analysis taking into account what her actual objective lee verified medical conditions and restrictions are keeping in mind that both i and me doctors the record reviewer and the doctor that actually saw her admit that she has or send her a light that they believe through this transferable skills analysis which is just a buzzword for locating jobs that exist under the department of labor of occupation idols rather and they just make the quantum leap from well she should be able to do some type of work too she can do these just these jobs and that's where judgement on the side of the rape case which goes on to talk about the comparative analysis that's required you can't just make that quantum leap without giving us  the analysis as to why that particular job in the requirements of that job would fit with the residual functional for cassidy of a particular point absent that analysis the any any conclusion about what her job past city is and the ability to to do these jobs is fatally flawed and so for that reason again regardless of the standard of review review i think the appropriate decision was made here that she's entitled to her benefits now whether or not re manned would be appropriate or whether or not judge maloney has the authority to award benefits up to the date of his opinion is a related topic  judgment only obviously felt that there was sufficient medical evidence in the record for him to determine whether or not looking at this under the noble standard whether or not in fact miss the last b meets the definition of disability based upon all not a and again when you re  d all the medical that we have in support of this claim and it was in his sound discretion that he felt in fact she objected lea does qualify as disabled under this particular policy now ironically every time we win receive govern long term disability claim case for a claimant it's tantamount to a reman because next month my client has to fall feigin for benefits and there's always that continuing obligation but never really understand the strife that we debate in terms of whether it's a remained or benefits are awarded usually talking about you know a period of months but ultimately functionally it is a re man because claimants have an ongoing obligation to and that's all i have the mustang questions claimed that she was disabled as of july first two thousand and eight she stopped any appropriate treatment my counsel does a better job explaining her medical records than her own doctor is dead a key to her entitlement meant to benefits is receiving appropriate treatment under the plan it says that she cannot refuse to pursue or comply with appropriate treatment and the same day that she claimed that she could no longer work she went and saw dr barrett and he found that she tolerated treatments well in fact her records are replete with her tolerating her physical therapy treatments well  visited her doctors for steroids injections six months after she stops those treatments she claims that they weren't beneficial to her and that was at the same time that she's not working so you know the key here isn't what the plan provides is that you no what he found was that she did have some impairment but that that impairment meant that she could perform sedentary work she may not have been able to conclude that she may not have been able to perform her occupation but she certainly was two thousand and eight and then go did not go back to see him for nine months until may of two thousand and nine so there's a time frame where she's not seeking treatment she's not seeing her doctors and even dr adams said he's trying to talk about available options with her and time because liberty told her she needed to see a doctor and he even says she doesn't need pain medication she's got a good motion and you know she's receiving social security disability so therefore she solely responsible for administering the benefits and here you've got a very broad plan document that permits national city to employ persons to assist  extent that they exercise any discretion and to judge to your point that's really the analysis here to your concern about you know pulling in people who may not know that they're afraid you will risk so explicitly says that that disclaimer such as that do not insulate an entity from fi do share a liability secondly with respect to the contract language the plan actually says that liberty is a name to provide a full and fair review under section five zero three is sufficient to confer discretion a status and i also just want to address the other portions of that agreement that were taken out of context you say that it has to be