good morning hours preparing for the appellant david van alstyne in this case i'd like to reserve three minutes for rebuttal what i intend to talk about this morning is the issue relating to the standard of review to be applied in this case based simply on the documents that were applicable in this case i will do my best to answer any questions court might have but other issues but that's how i plan to actually address i first encountered a long term disability insurance case about ten years ago that involved the risk of preemption and of course i soon discovered that risk the cases are substantially different from other insurance cases and i was absolutely amazed to find out there was an abuse of discretion standard of review that applied in many cases where an insurance company had made the decision about whether to deny benefits or terminate benefits the notion that the courts would defer to an insurance company's decision not to pay a claim just seemed very strange i couldn't believe that congress actually intended that nonetheless that's the way the law has evolved i believe the law has evolved that way based on a fiction and i believe that chimney is that in a risk  indicated by the documents in this case but what we have is a document the master plan document is not the only document which comprises the plan in this case by its terms it refers to the summary plan description which defers to the insurance policy in this case and so we really have four documents the master plan document the summary plan description the insurance policy  sort of insurance and the net result of all of these documents is that there is only one document which controls the rights of the claimant and the obligations of the insurance company who is the effective plan administrator in this case and that is the insurance policy all the other documents affectively the further that document and they all basically say that when there is insurance coverage applicable to the  disability insurance to the claim that it's involved all of the decisions will be made strictly according to the terms of what is in the insurance policy any and all of the decisions will be made by the carrier the plan changes for itself absolutely no discretion to do anything no power to do anything it simply said we've got insurance to cover this whatever the insurance company does that say that look for the not reserve any discretion within the meaning of the firestone case so that there is no basis for adopting an abuse of discretion standard of review based upon what's contained in the insurance policy itself and so what i'm basically asking the court to do in this case as i say is to recognize the reality of this case which is that the insurance policy is the only effective document and not to extend the fiction that has informed many arista cases any further then it needs to go and therefore based on that i would ask the court to find that this case should have been reviewed they novo that that is the applicable standard i don't believe there is another ninth circuit case which is in conflict with adopting that rule the closest case is the ma discussed in the briefs and it is different because in madden the relevant documents did reserve to the employer or to the plan i am an oversight function i reserve the right to interpret the policy so it's clearly a different kind of a situation here there was absolute abdication by the plan to the insurance policy and the insurance carrier if the court has was contained in the court's question is one that i would respectfully disagree with i don't i mean i think perhaps if we make an analogy to the criminal area and talk about reasonable suspicion as compared to probable cause perhaps some of the circumstances would give rise to some reasonable suspicion hunch perhaps but in terms of an adequate basis to determine that this man was not disabled i don't think there's anything in that those medical records that would justify that conclusion to reach that conclusion given the state of this record i think was arbitrary and capricious the only medical opinion that sad that he was able  upon object of findings and he was limited so what he could determine by objective findings mr van all science disability is primarily manifested by pain the objective there are not adequate objective findings or there are not objective findings that that demonstrate exactly what his injury is the precise physiological nature of his injury but the fact is he had a long long history of pain and that was well documented he worked for eight years after the initial injury although he was experiencing pain he was not a mullingar following dr johnson's opinion in one nine hundred ninety four there were two neural psychologists independent neural not any sort of psychological ponens to his points of pain that put to rest any questions that dr johnson's report might have raised from him and based on that the insurance company to its credit continued paying benefits for another two and a half years and it was then when they seized upon a completely uninformed if you will functional capacity form  well the policy itself contains an integration clause which that is all your rights are contained within this policy the policy sets up an object standard for determining whether a person is entitled to benefit but what to say about discretion plan and i'd like to be more precise if i mean in my response to the master planned document i can see contained in this question i believe that the plan consists of the insurance policy the master plan document is a relevant document but because it completely advocates any any power authority and reserves nothing for the point the plan itself to do the actual effect of document is the insurance i would ask the court based on the evidence which i think is overwhelming that this person was disabled that the court reversed his judgement belong thank you is an extremely large defense contractor at one time there were over forty thousand lucky martin employees covered under all of these plans lucky martin has a large department of benefits the employees covered by the plan at the law firm a summary plan description prepared by the insurance company in that case hundred surance here we have a large part of individuals whose job it is to prepare plan documents that prepare the master plan policy is the only relevant document your plan documenting this case is absurd the plan administrator and contrasted with an insurance company for money to fund the responsibilities and powers and their discretionary authority and states specifically that they have the power to allocate allocate and delegate its responsibilities or power under the plan and to designate other persons to and martin versus continental continental casualty company out of the northern district as well as others from from the district courts of new york for junior and pennsylvania they all addressed the issue of whether or not a pl on several points and allege that the points he raised constitute evidence of a conflict of interest but it is our position  not changing the standard of review but the position we take here is that in a conflict existed but certainly no conflict hinted the decision all of the information that was presented as evidence of a conflict of interest the claim her compensation was based on how much money she saved the corporation by not paying claims that is a direct conflict of interest here we do not have evidence of any of it  reason that he was given that opportunity west his own treating boarders and her brother for well you might have had the choice of cutting his benefits off right then because his treating physician w to have an objective basis for the extras i think that's going to be on where the claims of ministry are was going because what they were doing was merely evaluating the information and consulting with the in house medical director the information received from dr lichtenstein dr lichtenstein himself was saying this is certainly the most unusual case i have ever seen this man twists bends has incredible range of motion no atrophy on his own patient because he's not convinced when he called the claims administrator at one point after the terminations mr van austin was standing in his examination room during the telephone call he was in an patients claim further the eastern district of pennsylvania in two thousand and i have a copy of this issue with me because it's there is only a lexus tie itself as you know life insurance company the court there stated that significant or controlling significance should not be given to a doctor's change of opinion after a terminations of disability benefits because the change in opinion comes only after the benefits have been terminated that it is directly contradicted generally by the doctors earlier opinions and is unsupported by the medical evidence this is squarely on point with the case before the court today dr lichtenstein consistently opined this individual could return to at least  there are just three points that i would like to reply to the first point is that counsel indicated that under the law in the plan could have modified its terms at any  all that it takes in order to reserve discretion in all cases there never would be de novo review certainly that's not enough to retain discretion in every case planned delegated discretionary authority to line up and the fact is there is no language no document no statement anywhere that says we are delegating our discretionary powers o and the final thing point i'd like to make is that it's a bit difficult to reply to cases that are slated for the first time this morning but in particular in connection with the case of the council refers to  approving of imposing a requirement of objective evidence in support of a claim for disability in recent years we have seen policies that have have contained that express written requirement in the policy and i haven't seen the case of the counsel refers to but my guess would be my speculation would be that that's the type of case where this language about approving a requirement of objective evidence