thank you your honor may i please the court mark perry for the hewlett packard benefits plan your honor to the district court committed three fundamental errors that are detailed in the briefs i would like to be plans essentially as they see fit they are contracts with the employees and they are governed according to the law of contract the plan in this case says that all legal action on the disability claim must be commenced within four years of the date of loss excuse me the date of loss is a common concept in insurance policies in california and elsewhere it appears in the insurance code and let there be any doubt honor doesn't say what it means it provides the certain insurance contracts must have a limitations period that runs from either the date of loss or the date of proof of loss depending on the type of policy a fire policy for example has to be to fire why aren't you stopped arguing for that whatever it is by virtue of the relationship with the claimants lawyer  if i can take it two steps the first is that the contractual limitations period the riposte period is unrelated to the administrative appeal it says any legal action must be commenced within four years of the last the loss  defined as the onset of disability no matter what happens in the administrative appeal now it is possible that if the administrative appeal were to take forever the case that the seventh circuit confronted indo so that it going to be ok i would submit that the inference is exactly the opposite your honor the plan had every right to expect that the claims had abandoned her internal appeal and to rely on the contractual vision that once four years had run it couldn't be sued that's the reason that you have absolutely your honor if the waiver or the extension went through the time to sue the plan administrator could extend that time but it's important to point out here that the time to sue is not tied in the plan to the internal appeal and the communications between the parties went only to the internal appeal she still had plenty of time to sue after the appeal was abandoned or whatever it was the other point your honor and then this goes back to your original question if it was extended by the agreement of the parties then it was absolutely erroneous to apply do you know of a standard of review in the district court assume just for the sake of the question i'm about to ask that we agree with you on your second or third point but disagree on the timeline who should decide under a discretion standard rather allows the district court to do that in the first instance it was about that's appropriate here the court's ruling you know was before black and decker clearly rests on the treating physician rule  mentioned earlier about the four years mentioned in provision of the plan and according to what i read it talks about that no action shall be brought within four years after the occurrence of the l that's exactly right that's the whole key to this that's with your honor now tell me about how you quiet your interpretation of the contract relative to when is this cruel should start and how we determine it being defines disability there are two definitions of disability short term disability and long term disability short term disability is when the claimant becomes unable to work at hewlett packard it's undisputed that that date is august  expired on may seventh one thousand nine hundred seventy which can be the latest date of the onset of disability under the terms of the plan what happened in that we can look at the record that we know that she could not perform any thing i've got i think there prior to that now your honor it's when she makes the claim she claims the disability occurred on that date and that has to be controlling for these purposes because that's the it's either august or may because that's the day that she claims she can't work the claim that she's brought in this court case so we're looking at the factors i can't work anymore then sure of her work so that's a yes wrong and she has four years to resolve it internally and if she doesn't get a result can come to court a perfectly reasonable limitation that she failed to known that her claim and then finally did not your honor that's the test for a cruel of the statute of limitations has nothing to do with cement with the contractual limitations period but if you want to consider that cess under her theory remember she gets limitations correct your honor but whatever date we pick she had enough time to file suit and she did she ask for more time never provided the information we think it's time barred it's not time argument takes us out of the d m v now because we were having discretionary actions taken correct ok absolutely and in fact they they complied with that agreement because when they finally issued denial in august of two thousand and one they denied it on the merits on the medical evidence they didn't say oh well sorry your claim is dean denied four years ago what are you  second argument is that if anything was extended it was only the internal appeal and not the time for foreign court on staff or let me take the second one  this for years then clearly that is an agreement that goes to the filing of a lawsuit in other words he wants to stay on the one hand while he was dean denied so you could have gone out and followed a lawsuit the day afterwards if you'd wanted too and on the other hand say well you know they waited for four years or whatever it is they're too late ok let's put it in some case law because we  have the of the agreement we can get into the federal law when the claimant should you know or should have known that the claim was then i would get all tangled up in that so now that you've stated your position what is your legal basis for that controlling issue here that you can you can use crack crack to right around using the federal standard right under under a risk and the plan has a choice of law provision in it i think it's section right ok well i'm relying on both really well that may be true but where do we go now in the federal law for going to be in federal law to say ok i assume then you want to say that should considering ret relative to extending the time that would change the period right because one thing i would like to say is the fact that the district court found that that four year internal because the occurrence of a loss or the onset of the just ability could actually be of date antecedent to the date that she actually stopped working now because because she needed the job she was afraid she was going to be fired so it's my experience that dealing with injured workers that frequently they are in the workplace even when one of the primary causes or her disability so maybe june of ninety six is the onset of disability even though she was working until august of ninety six but how could she rea rule it was harmless error because the only evidence in the final in the rocket that she was disabled from following any occupation was the evidence of none of the other doctors actually addressed long term disability the ones that they sent her to doctor would gotten a girl or got the lions all three of them would never asked to address long term disability they were she was sent to them for short term disability and in fact dr would also say she is disabled from following her occupation at hewlett packard so district court's decision on abuse of discretion because he did de novo which i do believe de novo is the correct standard of review because there was extreme procedural course discussion of price so you're buying you would say that we should follow what the court's discussion of prices and that's the that's the way we should write this yes because i would also like to make the point  says that the parties can contract around the state limitations period and the cruel period and it remanded to the district court for that determination it didn't decide so what still did not decide this question the court is advancing one step beyond where we nine and finally he could file she could file a lawsuit after hundred twenty days under mass mutual for seventy three us one thirty four and that's made clear in the current version of the regulations