and a half hours at a time with no change of she's not disabled i don't know what the point of conversation was but they made three attempts to talk the doctor they can't find them they give up and then they say well we couldn't reach your doctor so that's one of the basis for the deni overly restrictive they say something like our doctor doesn't think you disabled which is not really what  court i'm sorry what the department and surance has done is retroactive in the sense that it requires this court to do something to follow it that's not our position our position is that the discretionary language violates california law and even if the department of insurance has done nothing the discretionary clauses violate california law the department of insurance decision the order of the commissioner and the adoption of the hearing officer order following the commission or the hearing officers decision is persuasive no no no i'm ok and i apologize for my question my question really should have been is any california case taking a look at the insurance policies in question and held that those clauses are either unconscionable illegal somehow violate california's common law or anything of that kind no no published decision say that the notice and withdraw in the opinion letter are not persuasive to her under the singleton analysis right so she does go on to shout as to not agree with the opinion expressed by the department insurance in the opinion letter and the relies on an unpublished decision or actually an order in a case by judge down ralph from the eastern district which is not available on west law but it is discussed in her decision and i think both of them do a better job of following the legislative history of the statute so i wanted to mention that and going back to that on the third request really just on notice i think it's  also note that as a part of the settlement agreement problem and has withdrawn all abstraction to that order in the decision of the hearing officer so where we left off when the district courts were making no decisions on the notice to withdraw in the opinion letter was a profit and had the right to file a superior court action challenging what the department was doing as a part of the settlement court to hear this panel to abstain from ruling on that issue and simply wait until a panel of this court is faced with either horror or fender or one of the other cases in which the issue was there really thrashed out at the district court level well i think i think this court is as well prepared as any panel is going to be because you have before you everything you need which is what's in the request for additional notice one in ten berg are going to get the same thing on appeal because they were looking at documentation that is now almost no longer in effect because it's been replaced by the settlement agreement and the order of the commissioner regarding the hearing officer the documentation they were analyzing were preliminary documents issued by the department of insurance and now you have the final documentation and the other side it wasn't retroactive no using or using the insurance commissioners conclusions as persuasive of what the california supreme court would hold if least with the issue that these clauses unconscionable and therefore should be disregarded i've been a shield from the first time they appeared that's correct that's correct and that that issue we have not proof because this just came out in october and i'd be happy to brief it for you or the court has certified to the california supreme court and we could brief it in front of the california supreme court because no matter how much we brief here if that's the if the ultimate issue is what would the california supreme court then i would have to ask the california supreme contacted the employer and the employer said within these restrictions capable of doing the job deny the claim asked we asked her physician to provide us with information anything to help us out on  current first president to consider the entire medical condition of this individual the medical record reviews demonstrate that her pain was always considered and in fact that the company decided she has some assist you well the two challenges here we have to sitting until this thing don't come to anything because the company analyze those issues and determined that she could in fact perform her job within those restrictions medical records multiple medical reviews before the initial to now and