please the court and good afternoon your honour's james martin for the anthem we recognize that disputes involving orissa health care coverage denials often arise in sad and unfortunate circumstances and this case is certainly one of them but is this court's decisions reflect the proper resolution of a benefits decision inevitably must rest on a fair reading of the arista health care plan and the evidence in the administrative record in this case how do we got into it get to to the performing of medical procedures that run up a bill of several hundreds of thousands of dollars without indeed pre determination of cover this case your own or the coverage determination was made after because the plaintiff when forward with her surgery before the plan evaluation was made to send that but i guess i'm  review and the surgery went forward before the plan administrator completed its review that was not something that the plan was involved in or interceded in or was given an opportunity to do anything about it so at the point that the plan evaluation was completed after the surgery and timely after the surgery within five days the denial of coverage was made that denial of coverage was provided for under the plan under an exclusion in the plan that was very clear that it didn't extend to bury after a weight loss surgery route part of the  came the the larger the large question here of whether or not this was with an exception of the exclusion well let's step back and take a look at that you know honor because that also goes to the fact that when you look at the medical records here this surgery never would have been approved because it was barry outright surgery for weight loss if you look at the records and the intake which was prepared by dr davis who was the surgeon it lays out a weight loss plan and in that plan there is no reference anywhere to a condition of excessive nausea and vomiting as a reason to have the surgery from start to finish the analysis i thought that's what i wanted the two things on that you know a lot of the only diagnosis in the pre surgery plan was for morbid obesity there was a reference to gerd in the plan but gerd weight loss surgery to take care of gerd is not covered under the plan it's not within the terms of the exception the plan doesn't cover weight loss to treat one another what does the plan cover in other words what are the exception to the exclusion exception to the exclusion is confined to a condition of excessive noise area and vomiting and that never appears in the pre surgical medical medical so there would only be a relationship between gerd and excessive noisy and vomiting if the medical records provided that connection and said that's a condition of the surgery in this case in the pre surgical records and in the medical records from start to finish there is no indication that this surgery was intended to treat the condition of excessive noisy and  plan exclusions as you're on or that if the weight loss surgery is performed for any other purpose except for the condition in the exception which is clear it's excluded and it goes to great pains to say that now as far as excessive noisy and vomiting is concerned in this particular case it only made its way into the analysis in a letter from the treating surgeon after the fact at the second level appeal and the issue here is did the plan have to take that declaration  we certainly argue that the first level appeal was substantive and it was the one that was correctly provided for under the plan the issue for this court is under the abuse of discretion standard did anthem ha credit that subsequent statement in the letter at the expense of what was provided for in the medical records and this court has many times answered that and said none of them what you're saying you're saying that that the doctor's statement came in only in the the first appeal and it was at the first appeal it was also part of the second appeal ok but the but for purposes of the abuse of discretion analysis and the substantial evidence in the record the plan was entitle to make a choice between what was referenced and rationally connected to the surgical records which did not refer to excessive noisy and vomiting at the expense of what the treater had to say after the fact and after the benefits decision had been made this court has a seven or eight cases that have walked down this analysis and said they need not credit the treating physician at the expense of what the records provide it said that in gothard it said it in burrell it said in anderson the plan provides for instruction for the first appeal so the first appeal it required a writing but the plan took the e mail that was sent that initiated the appeal and allowed the appeal to go forward on that basis and advised the plaintiff that they them or what does it say about that for a day or so the initial denial of benefits by anthem which was the plan administrator before the appeal set forth the right to appeal and indicated to the plaintiff that material could be presented in connection with that appeal at the next level it laid out exactly according to the requirements in the plan and there's no dispute in this case that that happened the plaintiffs are only disputing the fact at the know it was it was provided for for the first level to an additional information was submitted the plan says if you make them an additional information from your ear written statement of denial at the second level with people with ample evidence there i'm unclear yes reviewing the underlying so really the answer to that question is at the second level appeal anthem considered the medical records that provided for the surgery and it was not obligated you're on or under this court's authority to submit any evidence of its own it didn't have to consult an expert that issue for the court was is there are rational connection between the decision made by the plan administrator says that is that there is no indication of excessive nausea and vomiting and that this was a weight loss surgery versus any evidence of authority so the answer is they are not coterminous to start there if you have heard it does not mean of necessity that there is excessive noisy and vomiting  many symptoms attached to it heartburn being the most prevalent so if you see a diagnosis of gerd in a medical record that isn't going to tell you that there was excessive noise here and vomiting now is it possible to have gerd and excessive nausea and vomiting yes but the problem here is the record breaks down on that very point there is no connection made in the medical records in this case know you're on a how to move it to use exception is phrased for treating the condition of excessive noise and vomiting and again what we're looking for here is not the most persuasive evidence on all of this if but if the if you're treating that knowledge of that it's produced by gerd if not if not included that yes i mean weight loss surgery to treat gerd associated with gerd would not meet the literal terms of the exception but even there your honor there is no indication in these medical records that that the gerd were referred to was connected to nausea or vomiting and the only thing i was the clear that gerd was connected to the weight necessarily gerd was a condition that the plaintiff apparently had according to the records but it can come with obesity it can they can be together but there was no article submitted no evidence submitted no testimony submitted that said the reference to gerd in these records is equatable with excessive noisy and vomiting under the plan or the pla had the kind of excessive noise in vomiting connected to her gerd that could have triggered the exception when the plan administrator looked at that and didn't see those references they were entitled to conclude that it was rational that the surgery was for the purpose stated which was weight loss and not to treat the condition of excessive noise in vomiting that's a straightforward abuse of discretion the now do a three weight loss and that's based on the doctor's note that the patient was obese the pre surgical report at seven hundred forty to seventeen forty three of this record is unambiguous that this was weight loss surgery for morbid obesity it is it is based on that report that found the source of out of the doctor's notations the source of it is the typed out report signed by the doctor yes and title one of a risk is to protect the interests of participants and their beneficiaries in employee benefit plans that's just that's not just a webmaster at the labor department who says character of such plants now i may get into our cross appeal from the disposition of the district courts disposition a few minutes but first let's review the full and fair  section five zero three to leave out the full and fair rule which anthem contravened by not acknowledging and applying its own excessive nausea vomiting language not treatment of the condition of nausea vomiting the language says excessive nausea vomiting in it's own health certificate that it or presumably its associates drafted i'd like to underscore anthem's language from its own denial anthem sent in this is a rating or a document and that's going to conclusively categorically stated that our plan doesn't cover weight loss surgery very after surgery period no mention of any these are all exclusions are contracted not covered benefits period and both of those written decisions use that same categorical language word for word it's almost as if the first level of appeal so called first elect it's not a misstatement of what the policy does is it for them to say doesn't cover weight loss surgery that does a mistake with a policy that i partly disagree your complaint is just that they didn't get into the exception is that what you were complaining they didn't consider the exception to what the policy that would have been a good start art but it's not a misstatement to say it didn't cover weight loss or as as it's as a their policy says we don't pay for surgery that's designed to accomplish loss of weight i say they they they told us what they needed to tell about what she said you are the first your first predecessor supported by the record was supplemented by the original physician here but that's simply referred to the treatment of gerd not freestanding not nausea and we just went through the discussion about the reach full and fair rule the next person who comes along and is not given adequate notice that support in the in this recess section five or three cents the next person who comes along as a lay person without the long experience with be might be able to address that more in his remarks the i guess i ask that it provides a process where you can get pre authorization into whether or not they will cover a procedure obviously if it's an finally let me get into the disposition of the district courts dispositively why are we cross appealing when this is running or what yes she won the district court certainly one estab her in title meant to past and future benefits to use the district courts phrase her resulting care this sort of the district court certainly acknowledged the prayer for past and future damages in her in her entitled to add to the conclusion so it's september fourteenth twenty seventeen memorandum in order by rewarding dollar amounts the the under but it actual damages dollar amount of  phrased it her resulting care i mean the district court ask you to submit a motion in connection with that yes your honor and the and we will never motion never got never got submitted i guess because you with but both parties try to answer your question straightforwardly both parties have agreed that the judgment was final for appeal per the memo in order was damages but not a dollar value and so that's that's why further proceedings are necessary and if there are no other questions i will just a few quick points here owners on the notion of the policy issue that is overarching in this case a risk to protect only contract benefits that's the ultimate goal of the statute nothing more the supreme court said that in black and decker it said it in firestone so if there is no coverage under the plan there is no policy of orissa that requires an expansive construction here to reach a different result there's also no requirement under reso that benefit eligibility determinations made by plan administrator sort of reviewers reflect a weighing of the evidence all they have to reflect is the decision and determination that was made and at all levels in this case the plaintiff was advised of that specifically the explanation was about the exclusion referred to the exclusion and by the same token the case law makes it clear that there is no heightened burden to go beyond that even where opinions from treating physicians are involved the supreme court in black and decker said no to that this court has said the same thing in its home one and virtual cases among others on the point about the evidence in the record as to the connection between gerd and excessive nausea and vomiting it's not in the medical records and it's not in any of the articles that the plaintiff submitted either what those articles talked about was the fact that barry atrophy surgery could be used to treat obesity and gerd but none of those articles made a factual connection that vomiting nausea excessive vomiting and noise here were necessarily symptoms let's let's stick with what we know one that you want to as it relates to the medical records which would be relevant to the determination on the abuse of discretion the plan did code separately for noisy and vomiting and nausea there were procedural regard to be treated would be covered we would expect the medical records to reflect that condition as a necessary reason that the surgery was conducted we have a three page surgical report here that contains no such reference to put it another way if the determination was that she needed the berry actrix surgery in order to treat a condition or the  you on the cover of that either that's correct the plan doesn't cover for weight loss and girth it doesn't cover for weight loss and reflex in fact it expressly says weight loss surgery performed for any purpose is only the so expressed condition in the exception for excessive nausea and vomiting it creates a difference and that's not reflected in the records here the other thing to point to make on this damage issue is it has never been vetted in that exhibit or otherwise there is no basis in this record to make a nun contradicted a word of of damages the plaintiff saw it full coverage she was awarded full coverage it nowhere in the summary judgment proceedings were any damages any briefing done and there's no basis to do any fact finding on that for the first time on this appeal so unless the court has further questions we would submit