have fallen into the unfortunate habit in arista cases of focusing entirely on the standard of review the focus should be on whether the claimant is entitle to the claimed that if it is and i think we talked about that a little bit in our last case so her for two years so far so good now mr aung thought her disability was due to her mental illness post traumatic stress disorder because that's what her doctors told and the planet issue like many plans does that if the disability is due to mental illness benefits will only be paid for two years so when liberty stopped paying news john did not protest she also did not get better her sentence did not respond to your presence or psychotherapy and two years later she finally found out that she did not have post traumatic stress disorder she has a physical disease actually several of them the most prevalent of what which is chronic fatigue syndrome in two thousand and one her benefits would have continued and since she can prove she remains disabled and under the care of a physician and meets all the the policy requirements she would still be receiving benefits to in what she thought was an appeal the claim that if you look at it they greeks take a new claim they said ok fine we'll look at your new coins but what they refused to do was to figure out whether she had remained  what hurt her is that she had previously said no to klein fox she only had a mental illness and therefore didn't appeal and then try to submit new evidence of the physical disease and this has never happened before where someone's tried to relate back their claim based on a new diagnosis i mean because i mean that's what happened here it was a new diagnosis that occurred much later and how do you deal with this you deal with it as a new claim is there a way to relate it back and that's never happened before we have all scoured the legal decisions and have not found a legal decision i can tell you anecdotally that i believe that there are tricks companies who would was a physical new diagnosis and that she's no longer covered under the plan the problem with what they did on the new claim is that they assumed a disability they did not give a baby also tells us that where the insurance company fails to exercise its discretion which i would say happened here because when you assume a data disability you're not exercising any discretion you're just taking a date longer exists and lives there could afford it and that all standard it was either abused the discretion or didn't know well and there was nothing in between under our new standard which i'm not supposed to say use a sliding scale but insurance company fails to exercise its discretion which is what happened here then it can lose all of its discretion and can meet its decision to be reviewed under that's when you became diagnosed with chronic fatigue syndrome you were no longer employed at that point so denied start repeating that you think they should have adopted what the doctor said i think they should have done an investigation i think they should look at the rockers and if they didn't like it if we didn't provide enough which we provided a lot but if they needed to send her for an independent medical review if they needed to have one of their doctors look at it even though she started her up but even though she's no longer covered by the plan well she's she's alleging that she became disabled at a time when she was covered by the plan and that the whole point new claim they just adopted it that's abuse we have to it at least ended back down for review under the new baby standard i think more properly this court can review it under because there was a complete failure to exercise discretion the second way is the notice prejudice rule applies to appeals and i can discuss that if you like or i can  the point is that we have nice your case authority to us that there are exceptions to the exhaustion doctrine i mean obviously courts are always able to offer to exercise equity to provide the body you know they haven't really found a virus the center for disease control has a you know protocol for finding c f s the interesting thing about it is that you have to exclude a lot of other things to get to the c f s diagnosis which is why it takes a long time sometimes to get to that diagnosis you have to have six months of certain symptoms and you have to rule out a whole bunch of some of those symptoms manifested during the period of the first claim as well they were all they were all the only really that we all agree that's the one thing both of us agree about and so because she was misdiagnosed i mean doesn't she have the obligation to be diagnosed correctly at the time when she's allowed to pursue her claim i mean i'm just trying to figure out what this opens the door to if we allow this because it seems like she had an opportunity to get all and i know that these are difficult diseases or illnesses and diagnosis but she had an opportunity physical so we should be able to relate back well certainly i think the record demonstrates that she was she was seeking treatment the entire time and there is a requirement under the policy that you have to be under the constant care of a physician and if she didn't do that that would be a basis for them to deny the client he she didn't comply with that requirement but the problem with requiring her to appeal her mental and nervous claim is that she had no basis to appeal it so next day just because for whatever reason she puts an appeal in and she says well i know i only have a mental an opportunity for further review and slammed the door shut with it but it's some point insurers and employers have to know the extent of their exposure i mean it can't it can't just keep you know powering up right it's really a difficult situation well the statute of limitation gives you the end of the exposure and if the insurance company is prejudiced then they don't have to look at your honour's almost afternoon my name is susan handelman i'm appearing on behalf of the liberty life insurance company i'm going to start with pretty much where my opponent started this morning and that is that she started with a hypothetical that doesn't exist in this case the hypothetical was that if she had never submitted a claim before then we would be under different rules and maybe we could have a no this part of the situation but the fact is  case there was a claim as was pointed out also by my opponent this morning mr chairing came to her employer and to the disability insurance plan insur insure the plan and said in one nine hundred ninety nine i am disabled and that's an important point i am disabled it doesn't ask you whether you're physically or mentally disabled the point of that is this is a good income disability income plan and if you show that you're disabled and provide proof of it then you get income in one thousand nine hundred nine she showed that she was disabled and for two years cut income now there's a limitation the limitation is that is a mental illness or mental problem that's keeping you from working and that's the important point here keeping you from working what's keeping you from working every day that of information that was received was that you couldn't do the job because there was a problem with your supervisor there was stress and anxiety now also as was agreed from day one of this crime there were physical manifestations of this problem she says from day one that she had anxiety attacks she had chest pains she had that he there were all sorts of physical manifestation so that when the two year mental illness benefit which is a limitation on the disability benefit itself is coming due in february of two thousand and one liberty life didn't just withdraw benefits but they write her a letter and say look if there is any reason why this shouldn't come to a close lunch now now again reminding you that there were some things go manifestations along the way and lord knows i certainly am i able opposing counsel and my my firm we deal with these risky cases constantly and if there is a hint of a physical problem the argument is available as the court found in this case the district court found she could have at the before the benefits run or before the time period for appeal and said look wait a minute here if you're talking about soloing mental well how about rule changes and we now allow people to reopen claims as this claimant wants to do two years after the claim closed in where are we going with us and i think we have to go back and look at the purpose of research at least some of the purposes why the statutory scheme was put into effect among the reasons for it reza uniform guidelines and criteria reduce litigation consistent treatment of claims and you're right your honour's as we were discussing a bit earlier with opposing counsel there has to be some finality to claims too because it does provide certainty it does provide  e it provides a cost determinant in the administration of these plans which is that intends to encourage employers are to be encouraged to have these plans and these kinds of tradeoff symptoms that were complained about started back in one nine hundred ninety nine with the original claim so how rational was liberty to look at it as a further claim and what is one of the first steps in reviewing that process we reviewed it and informed the insured as many courts have have upheld the exhaustion of administrative remedies then when the cl requested and and the rest of the letters are in the record they speak for themselves virtually demanded review of this as a new claim liberty went reviewed  terminated in april of two thousand and one her disability or prior disability claim continued until may of two thousand and one s was any time after may of two thousand and one there was no time at which she would have been eligible for benefits and so well the date is pegged by a review of records at two thousand and three march which is what the plaintiff suggested in their own letter or whether it's paid at some other date after the prior claim closed after the disability benefits were no longer being paid which would necessarily begin a new disability period at no time was she an employee so the decision starting there was appropriate and rational and reasonable and and happen and let me explain why and it goes back to what it what what is the function of this plan the the plan provides income while you are unable to work and she said i am unable to work it doesn't say you can't have to two different different claims for the same period because it doesn't matter as long as you're disabled from working and you're getting the benefits it doesn't matter whether you're disabled because of mental distress if your records show that or if your record during the middle of the payment of a claim that started out as mental some sort of a of a stress claim you break your back and are injured in that way and suddenly the reports come in and it's physical as long as you are receiving benefits during that period of time you are on you are you are being covered with your claim is being paid who are receiving disability benefits when that claim is over there's no second claim that can be superimposed on top of it because there's only one disability benefit that can be received one income benefit and it was paid so second claim if there were to be construed as a new claim would have to be given at some period after she stopped receiving disability income benefits under the first  hey i've had a brain tumor all along here's concrete physical proof you'd still be able to say well the date of the brain tumors x even the other the x ray showed that it was there and then i respectfully your hon thousand one march what and it that the disability isn't linked to is it mental or is it physical if she is disabled for some reason the question is was she able to work during that period if she was unable to work during that period then she presented a claim and was paid her claim if it turns out that there was some reason that she shouldn't be that she wasn't able to work for something you check time after that for which we now learned that benefits might be due then the analysis starts at that point was the employee at the point where the benefits cut off the last time is there a even if you could construe the date of injury as the date that the prior benefit let off then in this case she wouldn't be covered but in this case also the only date that was suggested the only thing new there wasn't a diagnosis of a brain tumor there was here simply a new diagnosis of same symptoms same symptomology all the way through but now we're putting a different label on it and here putting a different label on it does not give rise to a new claim it might give rise to they asked us to consider it as a new claim and given the best possible face to this sort of absurd situation the only data could be given to the claim according to their letter they said we had a choice of today they said most favorably the liberty it might be the date of diagnosis are most favor chang was required to provide proof of her claim as reasonably possible soon as reasonably possible but no later than fifteen months from the time that proof was otherwise required even utilizing the date most favorably to liberty under this analysis mischance claim submission would not have been required until approximately june two thousand and four thirteen months after she received her diagnosis so they ran the first one from the da knows alternatively if the time for submission is calculated from the date mr chang president or stood at her claim remains viable which is presumably a year later when liz cheney went to a lawyer and the lawyer said gee we'd better get after liberty and see if we can get this policy really really going again a real stablished then her claim would not have been required until sometime in two of five which everyone else's is utilized it is clear that the submission standard applies here well this case is different than the run of the mill abuse of discretion case because as we heard in the park case there can be there can be concerns about the grant of discretion in the first place and secondly usually typically you would say well i wonder what given a choice i guess it was rational in this case if you build this as application of the  application of a new claim questioning of the viability of a new claim submitted in two thousand and three after she was no longer covered as an employee there was actually no discretion to rule the other way on the part of the administrator so that here there really isn't anything to be done if the case is to be remanded under a body there isn't any discretion that would have been appropriately that would have  taking the case the other direction and further as we pointed out in briefing the really no matter what standard is applied here the the the district court judge made three separate rulings one on summary judgment a whole separate order and consideration of all the factors on standard of review including the sort of sliding scale which my opponent doesn't want to use that term but court trial in which he ruled that that the that liberty still had been correct so as far as as far as meaning and we don't believe that it is it is appropriate one just final note i think the court is probably tired of hearing about the notice prejudice rule but but the notice prejudice rule there's a very important reason and i want to emphasize this was the notice prejudiced rule should not apply to wonderful application or acceptance of ninth circuit reasoning and in the work case was applied to the initial claim for good reason and that is that the requirement to submit a claim within so many days so many months so many weeks is in the insurance it when it's an insured plan it's in the insurance policy and so borrowing from california insurance law is the first theory of the nurse prejudice well you can't call someone out  appeal process in the liberty the insuring document that ensures the plan so it's unconnected with insurance and so applying the notice prejudice will outside of the insurance con you can't bring our date as things start to disability start date as another claim you can't get paid twice but you certainly can have a new claim based on a prior period on page twenty eight in twenty liberty and then even a later date that you thought really applied you didn't advocate that it relates back to the original claims date in that matter know that that letter had to do with whether the claim was timely not when the disability began that was just arguing that the claim was timely because the notice that we had that we had explained what it was either in march of two thousand and three or later in two thousand and four even if that's all that it related to why should we be bound by what you offer well i don't know how it changes the result if we're bound by that there was no denial of this claim on the glorious grounds that it was too late as a new calling it was it wasn't in other words they didn't say we're prejudiced because you submitted this claim too late that letter had to do with why we weren't too late to submit the claim not whether it was a new claim or a reopening of an old coin consistently if you look back at the oakland for other benefits under the oakland you said a new claim for disability benefit right what i'm saying is that you can have a new claim with the same disability date the just the date of your disability has nothing to do with whether your claim is new or old or whether your claim is a reopen a reconsideration or or a new claim how you consider it has to do with their internal processing they're saying to you today we can't call it a new claim when it that the same sort of argument was made there we don't we don't put it in the policy we put it in the plan and so we can avoid the notice prejudice rule and the supreme court said no no no you can't just watch what she's saying is that the appeal