good morning i'm lawrence pathway representing dr fine he had died the arista plan has the burden of showing an exclusion from coverage and the rules are well settled the exclusions are narrowly construed the they have to be clear plain conspicuous  construed against the insurance company and the preexisting condition in this case is a right arm problems caused by pinching of the nerve that exits the spine on the right side at the c five six level travels down into the cause a sense of this all along that direction now is the preexisting condition anatomically that's gone that's removed so they put an artificial disk in to replace it but that's not a preexisting thing that's a new thing and that's forty and after and of the looked at period a problem for the artificial desk is not a preexisting ok and look that period ends in january and so but so the ultimate question is i mean time then that you have a letter in the record from the doctor on the appeal and the letter sounds that the there is no evidence of any left side symptoms it appears that these were caused by and are related to the surgery done on that day yeah i and he and he also says that it was the replacement this was flexible it's not normal and that's when he got these language is whether it was caused or related to the original pre condition cause like issue exactly i mean dr dot could have been run over on his way to a doctor's appointment and you have caused by but if you read this language so as we will only pay benefits under the policy for any disability that results from or is caused or contributed to by a preexisting condition or up to six weeks as cetera so the purpose of this laneway yeah was to say that if you have a disability that results from a preexisting condition that leads to some other non preexisting condition that they won't pay what you're essentially are him what we would call an authority case and intervening cause right yes and the question is how is that treated under th the policyholders expectation you know isn't doctor gets the policy he has a problem with the right arm he knows he can't get that insured the insurance company is the insurance company you know if they were doing individual underwriting would write an exclusion for the writer but  the left arm you know something he would expect to be covered because morning gets the policy there's no problem with the left arm you know if the surgery said there's a distinction between a preexisting condition resulting in a disabling condition and an unexpected complication arising after a pre you'll improve i mean that's why you do it well right i mean any time you get this kind of result from a medical procedure it's it's unexpected it's abnormal you know i mean the first part of the hippocratic oath as normal because of something that was done as opposed to i mean if you would do you that fusion and may or may not fuse just as a matter of i have a right not because anybody doesn't sing right or anything  anything unusual happens right well and that instance it seems to me that causation is a lot more direct than if something doesn't operate normally well  and and clearly i mean this is this is an unusual result i don't think anybody has a good explanation for exactly what happened but i thought th were taking the disk out putting the new disk in you know i don't think anybody knows but what we do know is that you don't normally go in for this kind of procedure  have the right arm fixed on the left arm go bad i mean that's you know i'm not suggesting anybody but he was negligent was this something that was inevitably going to happen because of this whether he had the surgery or not no and that's i think it's a critical issue because it is a process of nature rule in disability cases where you do expect certain kinds of conditions to progress and if they do well you know then that would make sense to say well that's still a preexisting condition and i think we cited the cases on that those cases are all about something else or about a statute of limitations problem or something like they're to the ultimate issue was the operation a substantial factor was this just a complication well i mean i think the operation i mean there's a complication surgical complication of some kind and that certainly is a subset it's the predominant factor in causing the problem with the left arm if you don't have the surgery you're not going to have the left the application of the provision says that if the preexisting condition causes or contributes to the disability you're limited to six weeks of benefits in this particular case i think it's important to understand how the le symptoms came about as the district court found all of the facts are under speed in this case doctor who died had c five c six cervical just disease it was preexisting as defined by the policy  he is the condition got worse in march of two thousand and fifteen he decided to undergo a disc replacement surgery ok kinds of stuff in there from him in county and this may be typical i don't know the cited didn't identify treatment actually what the courts are looking at is just like you didn't dowdy was is it a substantial cause i don't with because i'm so blessed in that instance the fact that treatment was identified i mean without treatment being identified you least have one more large hope to get over in terms of the causation chain of causation well that's one issue and i think in a certain sense in circuit in unique circumstances basically you would be right i don't think it's the facts of this case and i think the other thing about putting treatment in there if the insurance companies start doing that you're going to preclude a lot of insureds who otherwise would deserve coverage and they won't be able to get coverage because so i think it's better to add on i actually i don't understand well there's no start over there anyway but if it's not in there i'll give you an example in five is one of the cases out of the tenth circuit basically the court adopted a substantial contribution ten test have the insurance company put a treatment exclusion in there she would have got benefits but you're saying that the treatment exclusions are there anyway i mean you're saying that even though it doesn't say treatment the fact that he shows to undergo this surgery to correct the preexisting and that the surgery is not to preexisting condition no it's but what it is that say you are saying that that even when the policy doesn't say that the treatment can't itself and doesn't cut off a substantial cause in the top of the throat you insert instruments you cut out the defective disk then you insert and place the artificial disk there and mr pathway indicated that maybe the disk flex that's been mr pathways argument well you don't have with the manufacturer and other physicians and they determined that the disk was within normal limits what dr tae said was and this is a nine thirty four it's the last paragraph it appears that there was a left sided nerve root injury which occurred during the was not normal but then it goes on to say i consultation with industry experts the surgeon felt that this placement was adequate and it's not normal well actually if you go back in the record we cited other pages in the record where they say it's basically within normal limits ok but what dr taste as is during this disc replacement surgery when you're removing either you're moving the disease preexisting disk or you're inserting the artificial disk somehow the left side of nerve was injured basically circuit case with the person under those heart surgery and then develops a staph infection yeah and i think in five is different we made that argument underneath what the court found and fought was that there were several intervene in that particular case the ventricle disease and the court under which she underwent an operation actually because of a defective stardom they had to use an unusual womb closing mechanism she left the hospital without condition which was the infection we're not going to basically apply the preexisting condition what about the daddy case and just a question of the difference between philosophical cause and you know practical cause and if you asked i would think most people in the world know what caused this problem they would say it when say it was the preexisting condition they'd say it was the surgery and particularly something that happened in the surgery that wasn't usual ated cause to begin was which is that the it's the surgery that's the problem not the preexisting condition i'm not saying that's an absolute cut off but then if the surgery doesn't go that's something that is at least unusual at that point you have a second level of and ten you ation and the question is where's the cut off well i mean i think the argument here is that you know what's the impact there's no other intervening causes that could have caused these left sided symptoms that he is now claiming is disabling him t and maybe a totally unfair question because i may not fully understand these concepts but i would rather like your perspective as i think about when you say this case is control more by traditional principles relating to position so just proximate cause or control more by the principles of insurance law that govern how we interpret interpret an exclusion i would say it's governed by rest of federal common law and the court justice you decision the dowdy case which i believe judge presiding was on the panel which said it's  you have to do is apply substantial contribution to us i think you and again i mean i think if you look at five what that we had this discussion down below and the and i think the issue is this if this woman would have undergone the coronary artery disease operation and for some reason it was it was clearing the left then trickle and all the sudden the right that trickled because of the surgery didn't function as well or she started having cardiac arrhythmias i think you would have a different result i think the court would have said it was and we don't know it would depend what the connection was between the two and a connection between until here has apparently and that he has preexisting condition was definitely on the right side in the sense that the whether or not it was caused by the single desk what the chain of causation there was that the nerves were being impaired on the right side right exactly how he was either in him on his left side that was when i forget what the term is but the the there was no closure of the nerves  focus is the disease disk and the issue is whether the preexisting condition substantially contributed to the new symptoms on the left side of the n f l condition didn't really think the actual condition didn't well i mean if you're allowin he never would have gotten any problem his left so you're right but if you have this hard and fast rule which mr pathway seems to be claiming which is that any treatment basically for a preexisting condition that results in different symptoms can't basically render is meaningless the preexisting condition exclusion you're going to have cases like i think it's topia and and brain where the individuals underwent back surgery and claimed that they had different to do with the fact that you have because the  whether something went wrong or surgery or not i think if it's basically if it's again if the surgery substantially contributes to the new symptoms basically i don't think it necessarily even others even if nothing went wrong so what even if it was just exactly the way it was supposed to go if it's exactly what the way it's supposed to go yes i think that it would still substantially contribute i mean but it wasn't exactly i'm sorry if it wasn't they said it was but i still think it would be i think there's going to be intervening causes i don't disagree again thoughts a good example basically of where the te circuit came in and said look at we're not going to find this to actually contributed because the circumstances were too attenuated but they did look at the causal chain and looked at all the other factors that went into how she became disabled due to a staph infection i do think th court was right and i think it's very dangerous if we start saying basically medical treatment that results in different symptoms does away with the preexisting condition clause because people would have to what about the fact that there was no lesion on the left i mean my point again is this is again if you look at this aeration this is a little bit different you're talking about removing the preexisting condition the disk either while it was being removed and it could happen while it was being removed as well record on the question of the how this risk was connected to the standard there is none because you didn't know anything any medical you have no medical expert on your side we basically accepted both his treating physicians who said that this injury there what was the risk but i really don't think that matters because mailing issue i don't i think it's an issue of science a substantial contribution basically and i can't see how you know even if if if if the record if we know that in point one percent of the cases this could happen that one met i would say yes i mean what if you have a knee replacement in your preexisting condition is in the bill is pain below the knee and then all the sudden you have a knee replacement and you're going to argue well i now have pain on top of the knee or one percent no i was i don't think it does i think what you have to look at it's what are the other concurrent causes basically and fought they looked at all the multiple concurrent causes that led to the result here there was only really one circumstance it was the surgery everybody letter doesn't say it's a non normal flexing dr taze letter at nine thirty four says there was an injury to the to the nerve basically during the surgery it speaks very specific about that and that's and it's at the end  thank you that there's a big value in having insurance policies that everybody understands what's cover and what's not and there's no reason in this situation to have to purse through fact by fact case by case and have different outcomes depending upon different decision makers treatment and how that work and here you have a policy where they're implying that a new term treatment and all they have to do is think is covered by me and if that's how they want to write the policy then you know a reasonable lay person  going to assume that some surgical misadventure whether you know for whatever reason that they're covered for that because they started out with something on the right side and they ended up  so we are in recess thank you very much