misunderstood was what happened with regard to the claim the doctors in vitro made to minnesota mutual this which was a different insurance carrier i understand minnesota mutual right what's wrong with that but the problem with that your honor is that you have to look to be down simply the fact that van was written over and over we agree with that it's was to be disabled under the terms of the policies you must show two things an inability to work that you were earning in then you weren't earning a living earning money  making that point your honor confused the difference between total disability claim under the policies and a partial disability claim under the policies and judge made the same error under a partial disability claim their issue with regard to earnings that's true the issue doesn't come into play until after the partial disability has been paid for six months but after it's been paid for six you can work and have disability ok so we start there it seems that this isn't a little bit more unusual case because it's a doctor working and the question comes up is if the doctor can't perform competently is that what these california cases mean about usual or customary way and so it seems to me that that would you agree that that's a legal issue that we would have to decide  assume that we disagree with the way you look at it and we say well we're not going to impute now practice or those negligent theories into working if you're working especially question as to whether or not he should have been working in that comes up under all the different california law cases that were cited the austere ok is the more case there's a whole series of them we're not it's not just attorney in many ways there's a standard of care a stamp list in the law whereas let's say a newspaper boy doesn't have a standard of care ok so so the working kind of sits over here so we're talking about a matter of law you want to say that where there's a duty or a standard of care a legal standard of care that if there's questions about that person needing it that's enough of a factual issue to raise a question as to he should not have been going to work there is no question of using power but he was incompetent because of a mental illness and because of a substance abuse resulting from a mental illness it doesn't matter under the policies the issue more precisely whether or not there was sufficient showing that he was disabled prior to september the first actually yeah that well actually it depends on the policy your honor their what i think is the appropriate thing to do is to make the decision there is a question let me that's another problem  know it's out of milwaukee or on yachts minnesota mutual which was the carrier that replaced the and l policies is out of minneapolis  the course in curry begins and ends here with the following question did doctors and veto present evidence admissible evidence that that he suffered from a disability within the meaning of the policies before those policies last the last of which latched on september five  two things about that it was not a finding of disability what it said was that after he had reviewed certain things including things that that the u s district court and the utah court had refused to consider declarations of doctors who hadn't even been there at the time but who were saying things after the fact well this must have been what he was like but that's what dr logan used and what he concluded was it seem that something that could be introduced before a trial well the court was aware of this your honor the court took this into consideration and decided that it did not raise a tribal issue of fact enough to raise a material issue as to disability is it not well i think it's not and but i agree you don't weigh the evidence here the reason i think it doesn't bear on the question of disability is because it's not a finding of disability disability as defined in the policies consistently with erica and so on is an inability to perform some or all of the principal duties of the man's occupation that's dr logan said dr logan's memo in by the way that wasn't written in your honor and still nine hundred ninety eight so he wrote that he came to that conclusion after reviewing these records which i would say the records in the standard medical care that he's required to observe under his medical license well he's impaired yes it's some people are impaired and do quite well you know but others do not so why why it's not just raise a question that needs to be decided well i think it does raise a question but i think that question was decided correctly as a matter of law from the admissible made and signed by doctors and vito then the company investigated with his signature they had the ability to obtain records from other people and so on because it's like this around a claim form constituti hundred ninety one no no no there wasn't other then there was terry that's when he applied for the minnesota mutual policy ninety ninety one and and of course dr sam beat all along after the fact best but isn't that really does not go to the weight of the evidence in other words it's all sort of sticking out there and how it resolves itself is a factual issue this and not in this case in my opinion and the reason is because the facts in this case as to what was really going on in april nine hundred ninety one may have nine hundred ninety one when he was applying for the minnesota mutual policy the facts are completely clear and the facts are not  are there declarations or other evidence offered that suggests that during this period he didn't have some kind of a mental or other disability the only declarations are from people who didn't who were not there at the time and who are looking backward in time even though they didn't treat him right for that at the time my point is that that's what i want i read i think that that's where i come up if there was an illness well what if the parent meant to disability and that then a legal determination on the basis of the facts in other words but what they don't have to actually make the final legal conclusion in those declarations in order for there to be a factual issue the final legal conclusion or the final coverage conclusion is made by the claims examiner was there a disability within the meaning of the policy attending physician statements and it's in dr b ozone claim where he said i didn't significantly curtail my duties until december actually says until after december nine hundred ninety one and  number two they're irrelevant because even if you do credit them fish they don't go to the issue of disability they go to the issue of illness and that's not what this case is all about when you consider case that he did produce of plasticine negligently is not enough to establish that he was unable to perform any three and there's no evidence to show ok well let me ask you about the law because it seems like it it is tied in with the evidence in a way if you take these cases that he's high and i believe the district court did that to show the disability  regarding illness and regarding isolated examples of negligent treatment this is not a health policy and it's not a professional liability policy that's to protect him from liability events like negligent treatment a can you do your job and there's no evidence here to create an issue of fact that he was only able to perform the principal duties of his occupation when these policies last case that's right and well basically what those doctors were trying to do was they were trying to help doctors and vito get around the problem that he had with minnesota mutual because the trial judge in the u s district thank you if the court judge russell decided that he the doctors and the ito intended to defraud minnesota mutuals just by not revealing on the policy after that he had been treated at st john's for two weeks in january nine hundred ninety for substance that he was he covered that up anything and he lied about it in the icon in the application and so counsel for doctors and vito after the judgment in favor of minnesota mutual for the five hundred thousand allowing them to get their money back he tried to put forth declarations from these two doctors hershon mcelhaney and one other three doctors that basically said we don't think doctors and vito could have formed  intent to defraud minnesota mutual back then and april of one nine hundred ninety one because he was having a mental illness going on and the and judge russell said no i saw the man testify what you're saying the evidence of the january one nine hundred ninety substance abuse treatment constitutes disability absolutely and the fact that dr primary care physician also had him order of the board of dental examiners created once a month for blood testing to see what was going on with his substance abuse the chronic illness it doesn't come and go yes its symptoms go up and down that's true and if the district court had read our expert opinions that we submitted to the court which refused to consider those expert opinion patients and ask them one by one how he was treating them during this period of time i would submit that's not what we have to do the fact is we know that he was incompetently treating many patien incompetent treatment equal disability yes and the reason it does is because of the nature of the incompetent treatment this wasn't simply a guy who was negligent once in a while this was a guy this period of time but i would add that every single one of those patients was at risk because the nature of the onus is on predictable it couldn't have happened to any patient any time th