same the facts of the matter described i think fairly well in the briefs after that was denied she filed this action in court this was originally scheduled for trial but the judge by applying the wrong standard of review and i think the best way to see that is to look at the judge's reasoning that allowed him to get to do an overall review now the decision in question  benefits was made in september two thousand and three at that time the plan in effect was the two thousand and two long term disability plan but it's not quite that simple as a council because i would like to get to exactly that if you give me just a minute i will get to that point your honor but the two thousand and two plan was in effect since february of that year the two thousand and two plan makes albertson's acting through its benefits department the plan administr the doctrine that's correct your honor but where did it apply the doctor well i think it doesn't actually say that it is applying it but i don't know how else to make sense of what the judge did if you look on page six with this page six of the opinion as it's in the administrative record excerpt from record that we've submitted to the court the judge says if a term is ambiguous it will be construed against the drafter and aligned with the reasonable provision is ambiguous and that you might construe it to refer to any of them whatsoever even if the district court even if we agree with you that the district court apply that doctrine doesn't matter in this case i properly use the doctrinal contra proper antenna and what if we say ok disregarding that doctrine we're looking at the language of the two thousand and two plan without saying it's ambiguous ok and it still comes to the same result i don't think so you're i'm not because the two thousand to a plan two thousand two plan applies a fact to february one two thousand and two so you actually have to read the language is still in there that would say your honor the disability had not risen before the two thousand and two plan because the plaintiff from a strain was in fact found to be disabled under the first definition of disability which your argument well it's an it's a new disability in the sense that it has to meet a new definition and if you could be disabled under the prior definition no question about it but you're not disabled and i don't i mean if the new disability it means it's a new pro but that doesn't mean that the disability changed well and well disability is is a legal meeting a legal standard or excuse me a plain and standard disability is a physical condition or mental condition it's not the plan govern ition it's a manifestation of a is a colon mental now function ok but you're only disabled under the terms of the plan if you meet the plans the definition of that disability so in two thousand and two and two thousand and three when her case is up for consideration she doesn't yet have a disability and less she meet find in the plane that plan provides two definitions of it the first one being you're disabled if you cannot perform the functions of your own patient the second one says you're disabled if you're same between both plants and so it's the two thousand and two plan that's been in effect for eighteen months at the time the decision is made and under that plan that it applied to any amendment even one that had nothing to do with total disability it was a change the amendment in question really was the change in the ministry the structure of the plane and moving from the amendment provision that the district court focused on and construed the first sentence of that this is any amendment of the plane shall be affective with respect to total disability again it uses the term total disability and capitaliz determined independent of the doctrine that the nine hundred ninety three plan apply to the appellate claim i guess i'm a lot more focused on the standard that was used and the factual basis for the standard that was used and can you highlight  have proper delegation to we had of authority and because there wasn't proper delegation the judge decided he would not apply the abuse of discretion that would or ordinarily be applied even to the person who was the post he is the director of welfare and health and welfare plans and what did he say about delegation he said that in fact the trustees had delegated to testified about how it happened the judge didn't say anything about mr snow or those steps of delegation what the judge said is that he wouldn't accept mr hodges testimony as sufficient because the delegation and then quote there's no evidence of direct allegation your honor that is correct because the testimony was that by mr hodges what you would have been i'm sorry it would have been appropriate for the medical review committee under provision g article nine to have done this review is that correct i mean to be vested with this authority the problem here is that there is no the facts are the question is whether there is sufficient to some of the doubt delegation was that apparently the medical review committee are employees correct and so they would constitute the delegation they would be within this delegation provision in in part of the of these provisions is specific delegation expressly provided in the plan to allow the mccorvey committee he found that that was not appropriate and he did not look i guess or spot doesn't know it's not clear whether he  ignored provision g or whether he did and knew it he doesn't address it it looks like his main focus is on the fact that there was no explicit provision al amin the medical review committee to be  argued to the judge below which i asked for an adventure hearing of so it was scheduled i had my hotel in plain reservations to come and the judge on his own vacated it within a few days before so it was all planned on judgment and we did not object we got a telephone call from the judges clerk saying this is what the judge has decided to do so this issue of applying the doctrine of  legal determination so if it goes both let's say we would agree with you hypothetically because back what would you do well with your evidence really with your hearings and well yeah very to try to establish the delegation was correct ruling from us tantamount to the proposition that as a matter of law what the judge did in wiping out hodges testimony doesn't work and so the only way you can deal with that is it's not enough to say because it wasn't in in writing it's no good and then he has to documenting now i view documentation is something that is in writing but your honour's i would still go back to my first point i think this issue of delegation is a sort of second tier issue the first issue is why wasn't the two thousand to play and apply the judge determined it wasn't applied because it viewed it as an amendment that took place after she became disabled and so that comes back minute for it but if i'm sorry same it says total disability and then it tells how benefits will be paid during different periods of total disability her pay her claim was paid for more than two years in fact it was all  through august two thousand and two why after this supposed new plan was put into effect then she gets a letter saying we're not sure that you're still entitle to benefits and in that letter she's told that if she has a dispute with what with the benefit determination she's given the appeal right under the ninety three plan the language in that letter talks about appealing to the fears it doesn't talk about appealing to the plan administrator which is what the two thousand and two plans her claim gets reinstated and then again in january two thousand and three she gets a letter saying her benefits are going to be terminated again she's given the a pure right in the ninety three plan she's told she can appeal to the trustees this of course was almost a year and a half after this new plan supposedly was in effect and then she does appeal and in her final appeal denial letter dated september two thousand three again she's told that her remedies were under the ninety three point the ninety three plan was also submitted by stipulation of the parties to the t recent case is working there is an administrative record there's a stipulation by the parties as to what planet flies what the claim file is and oftentimes there is a determination without hearing because i'm still very recently with this court decision and in the five bush case which talks about the taking of life testimony at arista cases a lot of the recent cases don't have live testimony so the ninety three get plan get stipulated to by both parties put into the record and then it only afterwards that albertsons came back and said oh no no we want to change it now it's the two thousand and two plan so i think there's a little bit of revisionist history going on here the district court found no ambiguity  enough facts before the court to make a determination that it should be the no bill it looks like the district court focused primarily and almost singularly on the fact that there was no express provision giving a delegation authority to the medical review committee actually i think it is recorded more than that i think it did the two step process going on i mean there has to be dealt maybe it's more than two there has to be discretion in a plan given to somebody and then the plan has to say that that somebody is able to delegate to somebody else to some other entity and the district courts did there is discretion to the trustees and the trustees can delegate to the contract communities ploy and an independent position so right then and there you have an entity that's not an authorized delegate the other thing is you have a current employee saying some document expressed a delegated their discretionary authority to the plan administrator the district court properly employ the dyno standard of review and then specifically states because the m r c was not expressly granted discretion no express delegation to anybody but the trustees that's true it only the only thing in the plan is to the trustees and then it says that in his view authority to use discretion in in our view that is hugh's evaluation of the evidence in front of him in other words he's expecting that it's not in the plan but it doesn't have to be in the plan it can be somewhere you have to find it's not credible enough and the reason used this because there wasn't any in writing that i don't know with as think that that's the reason use i think it has to be express i don't think it has to be in writing and i i have i admit that that may have been argued below but i don't think it has to be in writing i think it has to be expressed and there are other cases out there where plans have demonstrated expressed delegation by what evidence was there in the record that there was an authorized and direct delegation of the second tier delegation what was the evidence of that that there was authority for the person delegate to delegate to if there's nothing there's no that's  review here on whether there was a proper delegation and if so if i think the district court felt there was not sufficient evidence of a delegation from the trustees to jax know that the declaration of michael h was not enough evidence for this district court and that factual finding needs to be reviewed for under a clearly erroneous standard he felt it was not enough evidence but i know that and it's and that's not what he said though he experience where there was the hearings is there very much just oral argument because everything is done on the papers and in fact this whole thing one never really come up unless we had this whole problem with delegation i you know that it seems to be a new argument i don't consider it a new argument because i can see what the argument was was that there was no there was no expressed delegation to an trustees wanted to delegate directly to the committee then i probably would not have a good argument that it's not proper even with the independent physicians sitting on it just like how it is now in the two thousand and three plan  governed by the ninety three plan as they kept telling her it has to be governed by the ninety three point district court found that seems to be the main issue here is whether the appropriate standard of review obviously the abuse of discretion would have been more favorable and deferential to the planners outright correct and that you know that's the irony often in orissa cases you know here we have a case where the district court actually was able to find on the merits on again almost standard did this woman fit the benefits of the eligibility for benefits she was disabled she's entitled to her benefits and we have a plan coming back and saying well we don't really disagree with that but if we had had a better standard of review he might have had to our just like to make two points with respect to the factual issue of whether or not there was proper delegation under the ninety three plan given that the judge canceled the hearing this is exactly the kind of could have been discussed and i think if the judge thought that the declaration wasn't adequate well the evidence could have been submitted or mean there were after all there was a deposition tape and there was a declaration supplemental evidence could have been submitted to not the factual predicate for his spine being that there was insufficient documentation regarding the  fashion determination but then secondarily if you construe it as a factual question that i believe the judge there was no documentation and that he is accepting the plaintiff's argument that delegation had to be in writing that's that's deferential standard the question before the court would be different the court the question would not be why she just tabled but the question would be did the committee that made the decision abused its discretion and arriving at its