and causes within insurance contracts within the state of arkansas all that have been issued or renewed after march first two thousand and thirteen you have it is there any evidence here that it was renewed i mean we can guess maybe it is b and see any evidence saying for sure this was renewed on a particular day your honor i would say that is renewed because within the policy itself it states that as a twelve month contract that it ceases terminates without the payment of a premium if it's going to renew it has to be renewed by a new payment just because the contract can be extended out doesn't mean that they just could call every anniversary date when no they are not a renewal date to make policy go forward it has to be paid for and has to go back into effect and actually if you were to look at black office dictionary and just look at the definition of or know the act of renewing reviving the substitution of a new grant in gauging or right in place of which one has expired taking the contract and putting it back in place my recollection i maybe i'm wrong about this and please correct me if i am but my my memory of the of the document is that you do have to make a payment every year but no where in the plan annoying and so that would be a problem if you haven't shown that there was an actual renewal well actually i believe it does in the policy the policy states and i think this is in the eight zero six some may have to premiums set by us at each renewal date while the contract again within the plane calls itself a twelve month contract and if there is no extension of that a rewording of the twelve month contract it but its own language is  note the footnote says that there was an argument between the parties about whether or not it was or no because amendment twenty which was not included in the record discussed were knowing which the court relied on what it had in the record could not go back and see amps the risk the procedures and standards of review when the insurance policy is the plan you're not think that would go back all the way to firestone if you're removing the discretionary calls  some deference to state insurance regulation which is why i promised my question on the policy being the plan and the issue being the claims procedures the  is occurring and it has been approved and it states that the state can argue in state what policies language can be included he's saying that when the policy is a plan and the discretionary calls based on firestone it's a postcard as a de novo review but firestone said that if the insurance companies include this discretionary clause then they get to have the power they get to make the decisions or if you remove that cost you to continue on to with one on one does talk about striking the language from any plan or policy that is issued or renewed within the state argument is that by having this twelve month period that it's a renewal when you pay the next premium so each year my client was found to be disabled eighteen months after the statute came into effect on march first two thousand and thirteen so no matter what based on the plain language of the policy it had to renew within that time period there was no extension no change of the language by the insurance company or in the policy that extended it past twelve months there are other arguments that we've raised that i'll address on briefly we believe that there were issues  with the failure to consider that our client was disabled because of his back his back he had to take prescription narcotic medication this man was an engineer that worked o e believe that actually we don't really have an argument with the v o c that was submitted by the insurance company stating that he was to do sales calls to do meetings to go out set up heavy equipment on all rigs to align them to teach the people how to do it the issue is to attention of his supervisors which is they would note that he wrote the supervisor and it's in the record said it was not aware he went to only talk to me found out what medications he was on and he states in his letter are individuals and he list a couple companies  earth but i believe that as an engineer and if you look at the v o c that was submitted it talks about on call go into site set up so i believe it falls within the occupation not just this specific job he did do extra meetings eight part of his job was to go give lectures i don't believe that falls within the b o c so i don't disagree on some of those aspects but i do disagree that his occupation did not require him he was a salesman he was setting up materials so he had to be on site it was part of his occupation and the only response that the insurance company gave when that was brought to their attention was well we're going to look at the national economy or the national occupation they didn't say anything about well ok you can draw or no overarching issue today for this court is whether the decision of standard insurance company to deny disability benefits to mr nicholson was arbitrary and capricious could you could you address the rule one a one issue i asked about the timing and the policy and i just like that i think it's complicated i'd like to know factually in this case what's going on with that thank you your honor there are multiple reasons why i want to one doesn't apply first of all because the parties filed a joint motion to the from now arguing that some different standard applies the second thing is your honor that it does say that it only applies to policies that are issued are renewed after march first twenty thirteen judge home specifically found that there was no evidence on the record and there isn't any that this policy was issued or renewed after march first twenty thirteen and i think that finding the fact by the judge period will be set by us but will be not less than twelve months so there's no reason why that when it was last renewed that it would have been renewed for five years to say that every time they pay a policy which is the anniversary date changes and makes it subject to the statute that's the case that i cited the court that was just decided on march thirtieth by the judge in arkansas and says that can't be the rule and that's what he's basically arguing every time the an aversion he comes up and they pay premium again that constitutes a renewable and that's what the judge rejected that very argument and i think it has to be rejected that it i don't think that makes any sense so it's really a failure proof on the part other argument your honor is that this policy was issued in georgia and the court in arkansas subsequent to the finding or priest of hell that a thing is your honor i would tell you is that i think that even if this court was to apply de novo review we are women and that's what i would intend to address now if i mind there were three issues that standard had to address what is this gentleman's occupation of the national economy second of all what evidence is he produced that he's not able to perform that occupation as it is performed in the national economy and thirdly what objective medical evidence did he present to show that he had a physical disability that prevented him performing at occupation standard identified and said this is what we think your combined occupation is he never contested that it was something other than that and i think that mr bryant in this argument this morning acknowledged that they have no argument with that so what evidence that mr nicholson present to standard to show that he was unable to perform that occupation as performed in the the national economy he didn't present any evidence he certainly argued strenuously bed he could not do his particular job that there were nuances and peculiarities of his job that he couldn't perform but he never argued and never presented evidence that he was unable to perform the job as it was perform the occupation as it was performed in the national economy and this court in hankins versus standard insurance company a two thousand and twelve case it specifically said it's not enough to show us that you can't do your specific job if exxon had specific requirements on you you have to prove you can't perform in the national economy and he never argued before us that standard he never argued in the district court that it's not in the record but secondly your honor his employer acknowledged that they had become aware that he was taking narcotic drugs and they did nothing about it they allowed him to continue to work they allowed him to that you're correct it is not the a different argument but i think it is responsive to your question because in the theoretical somebody might have said you can't come on our site well the facts are that they did allow him to continue on the site when his employer was fully aware that he was taking these narcotics and had been taking them for years know you're his employer knowing that he was taking the cards continued to employ him continued to allow him to do is work to continue to allow him to go to his clients places and perform more so they parent we were concerned about this supposed a prohibition by whether there was any objective medical evidence presented and there are several points in this regard first of all this court has repeatedly held that a claims administrator in the position of standard is reasonable to request objective medical evidence especially when the policy is here required secondly is that judge holmes specifically found that dr niebuhr the only physician who ever submitted anything on behalf of mr nicholson's claim never presented any objective medical evidence of this disability and that i believe this subject to the clearly erroneous deter standard review by this court and there's no argument that it was clearly yes yes and here your honor there were three physicians who reviewed these medical records and a board certified orthopedic a board certified and turnus and a board certified physical medicine to rehabilitation and all three concluded that this gentleman was capable of performing this occupation on the other side of the record there was and then turner's who really did nothing other than when you read his medical records report mr nicholson says he's in pain can't work he never conducted any objective tests there's no m r i there's no x ray there's no c t scan in standard even went back to them and said can't you give us any and so i believe that the three medical opinions by the physicians the board certified physicians and the specialties of orthopedics and physical medicine rehabilitation provided the sistan show evidence to support standards decision this court in  positions or over the treating physician that it's not arbitrary and capricious to do so so for all of these reasons i would ask this court to affirm the judgment of the district court thank you have to renew it you have to keep it going you have to make the next payment to address the drug issue if a drug prescription disqualifies a client for performing his past relevant work he is not capable of returning to that work subject of medical can be used with ray your position where you did anything wrong to see m r i or anything like that i believe there was adequate medical a lot of this metal goes through his back and it was determined that he was not a surgical came day a long time prior to that that he could not there was nothing he could do but pain management there were no other steps for him as far as is being disqualified for being in that position what's your position on that you should've been allowed to work with because  r another example of the old saying that no good deed goes unpunished and part of the employer they shouldn't of let him work a lot think that because of their regulations and the medicines he was on that no he could not be there because his medical need for narcotics was a deck direct result of the increase in pain that he suffered due to his disability and his back or degenerative disc disease that over a period of time got worse and if there is no actions that can be taken other the medication he doesn't have any other options and they don't have an option because again his disability required treatment through medication