filed suit against banner for the improper denial of medical benefits it is i believe agreed upon between the parties and at the district court found the medical benefits at issue were provided through an of knee injuries to quote dr court it is supported by several well accepted published peer review articles of improved functions and outcomes dr court's report to be found in the surgery it is well respected and performed by well respected facilities throughout the country and has been proven effective and peer reviewed articles the issues in this case limitations about what you mean by effective because i thought the data indicated that it often had to be repeated there were adverse effects of the surgery it often didn't help that much what your standard for effectiveness can you can you give any objective criteria for determining what it means to be effective in your view based on dr court's report he indicated that the peer reviewed medical literature did show that it was affective to treat the condition although certainly not by any means but for proof you know as with any medical procedure there are rest there are possible complications but none the less productive courtin accepted that several well accepted recent published peer review articles in cases in a case series of improved function and approved outcomes following the a c i a procedure that he the procedure you agree counsel that the administrator in this case has discretion even who want to plan yes your honor the summary plan description does indeed contain broad discretionary effective treatment whether there are other treatment options because i know in a denial letter here it said please continue to follow up with dr gerson offer other options but she's too young for a knee replacement surgery i'm not sure there's any other but also included would be how how effective it is and when you say peer reviewed are they just one surgeon reporting that surgeons results and that surgeons evaluation or are these other types of studies and that the figure that i found most remarkable as a negative is quoted on page seven of the insurers brief and it says a review of the surgery d quote found an overall failure of paraphrasing overall failure rate of five eight percent re operation rate of thirty three percent lucky i leaned over to reach this is from page seven of the apple e's brief here's some bullet points and i'll paraphrase the last one but i think paraphrase accurately that of review of the surgery found an overall failure rate of five eight percent a re operation rate of thirty three percent with ninety percent of studies being scored is poor no what is your response to that data to those data and i believe the data that you're referring to your honor comes directly from the the  or not or medically necessary to track to the language of the plan what's absent from the record from the from banners analysis or from the district courts analysis is any attempt by the medical reviewer or  by banner at the administrator of the plan to distinguish between that data that that you've cited and the other data recognized by doctors court and submitted by dr gershon that found the procedure was opinions it could not satisfy the standard for an arbitrary and capricious standard how would you suggest that a judge looking at two different approaches both of which some people agreed was good review the court's task today is not to determine what would be the best outcome of but the court's task is to decide whether or not the record reflects that there was substantial evidence to support the ultimate which is a very well recognized research tool and comes up with a decision how is it how can that be r the language of the plan and the plan language in this case specifies that they would sam and medical records protocols and authoritative medical literature you know what happened in practice  practical purposes in this case much as what happened in the lynn m case is that the administrator directed the nd medical review to apply the macmillan care guidelines as a dispositive standard under this plan and that is contrary to the plan language which does not indicate or reference anywhere that the macmillan care guidelines are the dispositive standard for review or determination of medical necessity under this particular plan one needs only look at the three separate decisions made in this case the st two specifically and provided the only rationale that we rely on the to make medical decisions to the extent that they ignored the opinion of their own mandatory medical review dictated by arista the denial letter mentions that a medical review was done and then simply disregards without discussion units of the competing p m s because certainly the medical review institute acknowledged that there were those other years and doesn't really need to go through and just  but there's there can be differences between british or and maybe it would be helpful to understand better perhaps i have a misconception of what the m c g does there will be lots of reports a surgeon will say i did this and i got great results and that will be published that's important for people to know but then some other institution and i gather this is what the m c g does but i may be wrong because through all the literature and of sin all the studies that have been performed and says some people had its report good results when we had a look at the data overall we get these results and wouldn't that be a much more reliable source than that of an individual surgeon reporting that surgeon's results know based on the record that's available it's very difficult to tell exactly what the macmillan care guidelines are there's no reference to it in any policy manual the full guidelines are not even included in the record its reports i don't believe other than the three or four pages specific to the a c i there is any other additional materials about the macmillan care guidelines included in the the well there is a nother significant issue that must be addressed or outers in terms of the statue limitations of the court's permission i'd like to leave my play and did not provide coverage for miss weiss's claim ferrata lodges contra side implantation or a c i and nd was court should reverse the district court opinion that the one year limitations provision in the plan did not bar miss weiss as lawsuit which was filed nearly two years after her final decision on appeal i address each of these issues in terms as to the st issue miss wise on appeal essentially makes two arguments one that better health could not rely on the milliman care guidelines in determining that the a c i procedure did not meet the definition of medically necessary reject both arguments st the plan does not limit the type of information ban or can review when deciding whether procedure meets the definition of medically necessary while the plan does not refer specifically  perhaps you could address is not with milliman so much as banner picking and choosing depending on every case that comes through in different conditions what's medically necessary and saying the next case involves a different hop around until it finds someone who agrees with that deny coverage especially when there's a conflict of interest yes your honor i think it's interesting that banner is in the health care entry industry it runs hospitals and employs doctors so i think it's particularly appropriate that it's relying on milliman as this industry standard and if you look at the guideline itself i mean it cites several references i think there was some  in the initial discussion about what is millimeter based upon but there are several and no it's i believe more than twenty in terms of how it compiles where we use literature to compile the information initially about how it is compiled and it references the literature that brings to the decision or or the compilation of information set forth in the guideline new returning to judge phillips question is there something that should give us comfort that banner is not being arbitrary and when it st to the militant guidelines because it only refers to it when it forbids coverage is their aunts and i hope i'm addressing the question to its recognized is generally recognized in the industry i don't think there's any evidence here cherry picking or it uses it sometimes but not other times there's no evidence of that there was no discovery psyops to explore that issue the only evidence in the record is that that's what banner relies upon notably there are several many cases around the country as referenced by the district court and milliman appropriate to rely upon  should be allowed to have the surgery because of her condition it's the procedure itself whether the efficacy of the procedure and whether it is well recognize and the nd issue brought up by miss missed weiss is to address that is that banner did not exclusively rely on milliman to the exclusion of other evidence submitted with the claim and this  established by the record and particularly the external review that was performed now mr weiss argues that banner ignored its own doctor's opinion who believe that the claim should be approved from both an orth that he had never performed the procedure harless procedures had variable results and he could not address the terms of the plan because he had not reviewed them and felt it was outside his area of expertise you even caution that missed why i should have to be informed and educated regarding the variable results and risks associated with the a c i procedure nothing in the plan stated that banner had to merely take dr course orthopedic opinion and ignore his other statements or other information available including the plan language and milam it in making its  external review also establishes that all evidence was considered and ultimately denying the claim the external review position was supplied with the full file including dr court's letter to physicians medical records and history the letter referenced the plans definition of medical medically necessary and specifically determined that the criteria that the procedure be quote medically proven to be effective treatment of the condition and quote was not satisfied based upon the lack of studies and published peer review literature the letter also cited several additional medical literature references in support of the decision and based upon this and as examined by the district court records simply does not support mr weiss is argument that banner only relied on milliman and ignored all other  as to the nd issue for review a lot of people this court need only reach the contractual limitations matter if it does not affirm the district court on the st issue on appeal the plan clearly contains a one year contractual limitations period to file a lawsuit is not an internal for internal appeals and doesn't the us p d specifically explain the participants right to bring a civil action under rissa would be explained and the time would be plain and they didn't do that your honor the plan states that a part and i'm paraphrasing the participant may bring a legal action only if the action is commenced within one year after a final decision on appeal is ma applies your honor to the summary plan description as you pointed out to the st level of appeal it does have that requirement that banner should quote that pine limitation in the letter and it did not however that limitation does not apply to the external review see that i'm sorry your honor where does it specifically state that any limitation does not apply if we deny the benefit on the final review so if you go to the summary plan description there is a separate section or extra arnel review and in that section add it states what that we review letter should contain and there and your honor there is no reference to the one year contractual limitations that's right and that's what you're supposed to me not in favor of the company or in favor of the insured in the event of ambiguity well this is an insurance contract your honor it's it's not insured benefits self funded plans so i don't believe that insurance interpretation would apply to this situation however again there is a distinction between what the plan requires in terms of when they one year period begins to run again from that stated in a letter that you sent to the insurer or to the midwives the external letter compliance with the requirements set forth in the summary plan description it did not ha that one year contractual period and that's because it was dealing with the one year was dealing with internal issues the one year statute excuse me the one year limitation applies to the entire final process so it's one year from the extra review date however the external review letter is not have to mention that contractual limitations period why not just do honor what effect it has in this case but for future work it's just not fair well your honor that that brings us to the code of federal regulations and you know that tells requires putting in a letter the the contractual limitations period well that applies to an issue of denials not denials on appeal and that's this court's decision in the hancock versus met life case that recognizing that you're sure you're making a legal argument saying you don't have to undo the c f or you can do more than what your have to of the statute of limitations argument in five separate briefs now the enter has focused on well what phase of the proceeding does this notice have to be given or the terms of the summary plan description absent from the record and what judge daniel specific we found was that there is no letter at any stage the original denial after the or before the external review or in the final denial that ever mentions the limitation period the primary theme the big issue in this case there is no evidence that banner uses this bill in care guidelines as a matter of policy or standard it's not referenced in the policy there is no claim manual not in the summary plan dispersion of the plan language they are free to pick and it is one they want to use thank you thank you counsel cases submitted