serves as a model of a well known principle and that is there are no exceptions to the rule that everybody likes to be an exception to the rule this case is not about there being any confusion y we sympathize with the appellee with the circumstances that he was going through there at the time that he was supposed to fall is claim or is a does not allow us to create an exception for him because we must enforce t there's allegations of procedural violations they're alleging that our claims procedures and failed to comply with the and so there isn't a substitute violation if the law talks about it that you can allow the evidence if there is an allegation so whether the court ultimately found a substance of error is different from the allegations that was in the complaint in that time the allegations it was a procedural irregularity and so the court should have allowed us to produce evidence that specifically rebut the misrepresentations made to the court the misrepresentations he made to the court specifically know all this that you're saying reflects one actual notice it all occurred before he had his ministry of hearing why wasn't a record made of all this in the admin it for the administrative record  over what's going to constitute the administrative record right yes and the carrier head notice actually constructed the third vendors communication indicating actual notice right yes and so my point is why didn't they make that part of the administrative record over which they have some control what i'm saying the reason why is because as a practice it's a big leap and it's a ministry of records includes the denial letters the summary plan description trial court level during the trial brief we had no reason to include this and so the the appellate claims that he had no notice of us they did but we sent a letter to him on jan were told stating you were still there was sponsible for whether the plan language has ambiguity well i think it seems the analysis you're on are because the question is based upon the participants alleged understanding not based upon the court it's understanding so until a participant am confused then there is no basis to say that the playing language is confusing is based upon his own confusion so his actual knowledge we're going whether or not he can he is confused becomes relevant in that regard so he so basically what you're saying from that ambiguity i don't have any case of the difficulty addressing that point exactly but there is a case for mr pitt if you were a packer case it's a two thousand and six case where this court stated that the actual actual knowledge the feet and on actual notice in that right while you are again i think there's a difference between what the court found to be a procedural a substantive violation vs what but what the allegations were and so at the time you were thinking to get this evidence then they were alleging procedural irregularities and so when there is a procedure i go larry disk or has allowed evidence outside of it specifically evidence related to actual knowledge and also the burke case and cited in our brief specifically relates to being able to stop them at the record when there's been some type of change or irregularity in those cases that with the administrators who was th there was one reason for the denial and then changed the reason and the court there that they should be allowed to supplement the evidence to rebut that evidence and so we're saying we should be allowed to rebut these misrepresentations that were made to the court let me ask you this do you think that the district court's decision was premised on a procedural violation or procedural irregularities i was there was there briefing by counsel on the issues immediately before it was submitted to the judge who made this determination of subs i'm talking about the notice of claim section on the point here ok that the plan itself states that it requires notice to be timely scimitar within sixty days of the commencement of the covered employee's disability then it the plan requires notice within sixty days of the date of the commencement of the covered employee's disability and then goes on to define disability as an occupational disability if further defines occupational disability as the inability of a c because of impairment to form the duties of his regular occupation and then the summary plant description language echos the language of the plan itself the i refer you to the language from doing his job yes this is your considered disabled if a physical or mental illness or injury prevents you from doing your job now a physical or mental illness does not prevent you from doing your t r w job because otherwise you wouldn't be able to work in the t r w program it prevents you from doing your regular day and the the appellee argues that are some replan description violates arista because it doesn't have a specific language stating scree the question for me is whether the clock starts when the period of his temporary return to work began or and so that's the plan shed any light on how utilizing the temporary i think there's a reference there may be a reference in the plan to your governor ryan but it's specifically addressed from replying to perch in which is the main information that participants rely on is the main source of communication for participants and specifically states all throughout addressing a t r w program that that you will be working on that's why you're disabled as a matter of fact there's a conditions presidents are working in a t r w program you simply have to be disabled because you get to work in an app and you are able plan itself we specifically address it in detail and s p d but if it doesn't address it specifically i still don't think there is no ambiguity because the plan is the civically states that you need to file your claim within sixty days of your disability and in a specifically defined disability as when you are unable to perform the duties of your regular job by definition it's the r w program you're not working your regular job ok thank you calculated to be understood by the average plan participant and shall be sufficiently accurate and comprehensive to reasonably apprised such participants in beneficiaries of their rights and obligations under the plan and just a court found that this s p d was confusing and didn't comply with this rule and as a result the proper remedy is to ensure that the claim be considered on the merits and i think your mind the court that's all we're asking the district below in this court to do we're not asking right now for fed ex to pay the claim we're just asking that x to consider the claim on the merits which as a twenty plus year employee of fed ex who was trying to do everything correctly we think he should be entitled to do if you look at the facts of this case here's a man who became injured informed as  plan for disability benefits well the return to work program is is as complicated as counsel indicated i don't think it's fully set forth in the plan itself and the summary plan description i believe refers  employees to another document to understand exactly what happens to return to work program the summary plan description is a summary plan description for the disability plans returned would they have put him in the in the disability when they put him in the temporary worker program he not been this disabled or well depends on essentially yes but i'm i'm hesitant because when we start using the word disability then we start getting into the question of well when did that start that he would not have been put in that program he had not been injured and stopped doing his old job yes that's true but if the question is well when does his clock start ticking and this is why the return to work program really confuse right you know the average reasonable person who stops working at their old job and then comes back to work in a different capacity wouldn't necessarily conclude that the clock is started ticking because the summary plan description over and over  talks about how disability means your inability to work so if you're in the return to work program most people would reasonably conclude well i'm working so therefore the clock hasn't started ticking on my time using these workers like light duty wrong if you are doing that state a job that requires a lot of heavy lifting in you're injured on the job and your employer finds out you can't perform the full range of your prior responsibilities you're still going to work in the temporary maximum twenty eight hours instead of forty hour week and the work is that the integration of the disability and the return to work programs actually disincentive ises employees from applying for both  because the way the plan works is there's offsets so that you can't make more than seventy percent of your salary while you're in the return to work program and so if you are receiving disability benefits under the plan and also receiving salary under the return to work program your cap is seventy percent which is where the twenty eight hours comes from because that seventy percent of forty hours so the average reasonable employee was in the return to work program and making seventy percent of what they were making twenty eight hours a week would also reasonably conclude well not only do i have more time to submit my claim but there's no reason why i should do it now because there's no financial advantage to me would do well except he has a thirty percent gap right temporary program the light duty he's making seventy percent of what he made before right that's right in so short thirty percent now is now what the disability pays at least during this period when he's still working though my understanding is that with offset revisions work is that he can't make more than the seventy percent so he's ultimately is going to absorb that thirty percent that's right even after he's finished with this temporary work program right the short term disability benefit is a seventy percent  benefit so your theory is that there's no way he would know that the clock starts at the beginning of the nine day period versus at the end and there's nothing in the summary plan description or the plan that would set clarity on that issue right and this really is the central problem with the summary plan description is this is a frustrating case because it could be so easily solved by rewriting the summary plan description the fact that there's that the return to work program is mandatory imposes an obligation on fed ex to tell employees look if you are participating in the return to work program this doesn't toll your deadline or claim any of your art or delay any of your claims submission deadlines for the disability plan but that's what councils actual notice argument comes and you want to talk about that sure first of all these letters that were sent to mr negative weren't admitted and that's when the separation that we can talk about but even if they are admitted you know these letters are really evidence of defendants of their interpretation of the s p d they can't override what's actually in the summary plan description with the letters they can't cure any defects that are in the summary plan description with entitled to conclude that that wasn't a fair interpretation of it and also i'd like to add the record i think fairly clearly shows that he i thought he was doing the right thing when he called up at night to submit his short term disability claim  at you know one of those questions is well what was the last day that you worked because they want to know how to calculate the benefits and he told me it was april fifteenth two thousand and eleven which was the last day of his participation in the return to work program so he's someone who clearly thought that the last day of work for purposes of disability program was the last day that he was in the return to work program so you're not withstanding things letters were sent to him and i would encourage the court to take a look at the letters and of course this is even this is if the court even finds that they should be evidence which we are arguing that they should not the letters are very long and filled with a lot of information and and it's something that's easy to overlook and someone who received this letter right after they go out of work and then comes back into the return to work program would reasonably conclude well yes you're telling me that i should have been applying for short term disability benefits but i don't need to do that anymore because now i'm working and so the way to dispel that kind of confusion that the reasonable person would have is to explicitly tell people this only plan description look if you're in the return to work program this does not mean that you don't have some you claim you still have to submit your claim and here is the deadline and moreover the deadline is tied to the last day that you performed your regular occupation and that's the central problem with with the defendants arguing this case is fed ex is arguing is trying to tie the disability deadline beginning to the date the last date of performance allegations that they mishandled the claim somehow what about the allegations of the complete well i don't think those are relevant and by the time the briefing was done it was clear what the central issue was is the s p d adequate and so there may have been other evidence there may have been other allegations in the complaint but that was a central issue at the time of briefing and at any rate these letters clearly should have been included in the record let me back up a second counsel's trying to depict this new evidence as rebuttal evidence to new arguments that were in the briefing but these new this new evidence is letters to mr magoo teaching about how he should submit his claim i mean those are core documents that ought to be administered of record in the first place so this isn't a rebuttal issue this is an issue about documents and what should be in the ministry of record they would like with that they should have put in the record and to put them and try to include them in evidence with their opposition to the trial brief and let me back up and explain what happened the party submitted trial briefs and then they submitted opposition trial briefs there were no reply briefs and there was no hearing it was decided on the papers so these documents were submitted with the opposition at the very last possible moment that this is the last moment in the case in which these documents could have been submitted and they were i know we had briefly touched on the issue of the information about claims submission that is the ideal case in which a recent he's just up and prevent those provisions from being enforced against participants and and i'd actually like to cite a case to the court that i don't think was submitted that was cited in in that case was that a plan's failure to prominently display a time limit rendered on and forcible and this case i think is even easier than spy next business find if the time limit was fairly straightforward is just a matter of whether someone could find it if they were looking for it in this case the time limit is there sixty days but no one knows how to calculate it it's calculated based on when your disability began but as p d defines disability as alternately your inability to do a preventing you from working from your regular job also your honour's what the appellee is essentially asking or saying about the has to be there saying it's confusing because of a language that it doesn't contain and i think that is the argument that every particular participant to do so want to follow this p d because when once you start putting every circumstance is going to make it too long and participants won't read it so let me clarify for the record that not everyone works in a program so to a this pacific language explicitly address and his would be a situation explicitly for the appellee and or it's a work in it's the r w program there was conditions first you have to your health care provider has to release you do so  many of the participants many of the employees are not released by their provider so they don't even go to responses and in second even after they help you are part of provider releases you we have to have the work that complies with your restrictions and with many of