our fifth case for this morning is there against sun life twenty five years ago this court decided the sank here versus hartford case which stands for the proposition that accidental death insurance does not extend to death that occurs during the course of medical treatment but in that opinion the hypothetical was close by prophetical said but it would be different if he twisted his knee playing tennis in the injury caused blood clots that number wise to his lungs and killed him following the hypothetical the court cited several cases that dealt with circumstances where somebody experienced a traumatic injury underwent medical treatment subsequently died either in the course of the medical treatment or is a complication of the medical treatment and the courts in those cases all found that the accidental death insurance policy extended to provide indemnity in those cases because the initial accident the initial traumatic injury was what mattered so you know if the prefer in sick pathologists examine jeremy considered where there whether surgery contributed to  the forensic pathologist in her report dr yeomans specifically mentioned that she saw the signs of the surgery and there is not a word in her conclusions attributing the surgery to the cause of death neither did miss herring actually in her report ms herring the medical examiner for the insurance company in her report stated that  is a risk of the surgery the mr prager underwent but she never explicitly concluded that that was the cause of death so should mind your drawing is that you can talk about risk you're saying that what they needed to do was take the next step and say this risk came to pass yes this risk happened so you know if it's getting a rash  risk of taking cold medicine not everybody takes cold medicine gets a rash so you need to use you need more information yes absolutely should we should we presume the jeremy surgeon would not have the surgery if he thought that a deep leg thrown bosis had already occurred i would assume so but we don't know we have any answers all we have on the record is the call that was made the day before the surgery july twenty one counteracts mr prager complained about the symptoms that he was experiencing he was what doctor called in and said will take a look before the surgery and then boom surgery takes place there's not even a record an examination the sort of place before the surgery it in a trust in your honour's question judge would i think the key here that the one that you posed a minute ago i think the key here is the structure of the policy accident everybody concedes that that took place here in that was independent of all other causes everybody concedes that took place here the medical examiner ruled out mr pray there's other potential medical conditions as a cause as did ms herring in her her medical analysis that she completed so you're talking now about whether this language under the restrictions section that says we will not pay for any loss that is cause she did directly or indirectly or contributed to by law about medical or surgical treatment whether you who had to bear the burden on that right and that's what i was going to get that is what i thought because once mrs pryor there proved that her husband died as a result of this injury that he experienced playing basketball and the medical examiner concluded that this was an accident and that the underlying cause playing basketball and the record also shows that deep vein thrombosis is possible from this kind of accident alone before anybody touches you medically mishearing considered it and answering the questions that were pose to her she immediately went to but this can occur as a result of the mobility and the medical or literature supports that anyway because how many days gap between when they got the injury just remind me was it five or six days gap between the injury  actual surgery five days to the surgery and then another five days or but i mean i'm just talking about sex again six days to the surgery and then five days last on call about  but no that could develop in those days of inactivity because that was five days with no mobility on that presumably yes and that's that's the problem with defendant's position in this case  question here this i'm going to assume for the sake of this question that we are dealing with a policy that gives discretion so that we're under the arbitrary  review what is it that the claims administrator sun life here should have done did they need to at least find what i might call substantial evidence that this was a surgical complication not just a straightforward problem from the original accident did they need to actually show by a preponderance that it was more likely a surgical complicate what thrombosis pulmonary embolism is a risk factor for the surgery and in my opinion that's what happened doesn't actually tell you why that's his or her opinion that would that would that be enough to make you lose no because i was like is that what i have to do because there's not that much evidence right you know they have to give a rationale there has to be something that connects their theory that the cause of  difference so far as risk is concerned between mobilization and search the medical literature that i researched didn't show any conclusive evidence one way or the other but that the death occurred as a result of the is supposed to be a way of dealing with the problem that might be less likely to result in a pulmonary embolus but actually you're saying the medical literature expert to look at the administrator might have said well in his case he's already got signs of a deep vein thrombosis on july twenty first so in his particular case the immobilisation had already caused the problem and maybe the surgery either made it worse or didn't do anything or whatever maybe maybe the expert would say the opposite maybe the expert would say the risk is you know x for immobilization and greater than x for surgery that but than the surgery we don't know there's no evidence of that right her hair and the defendant didn't come up with any evidence that that would have linked specifically link the surgery to counsel obviously take a right to speak obviously we take a very different position relative to this case but you know the problem is this statement from ms herring in response to the question can we conclude that his subsequent surgery to repair the tendon rupture played no part she says no you can't conclude that and then she just says the risks of surgery included d v t m p e d thing thrombosis and pulmonary embolism but she never says that that happened in his case and i see a real distinction between saying that something is a risk and saying something that took place and if you read it you know if you if you ever watch t v and you see the ads for prescription drugs they tell you oh it's could be a great drug you know for your asthma or something and then at the end of the ad they both this lengthy ghastly list usually you know but you know that you may have shortness of breath and you make it rashes and you may have diarrhea and you may faint and you may you know do all these other things and they're all risks but they don't come about every time and this record is devoid of evidence that this man who already has a sign that deep vein thrombosis is happening was made worse off somehow by the by the operation there's just no evidence and with all due respect certainly not his herring statement which i'm looking at i disagree on two parts your honor first of all i disagree with the premise that he had signs of deep brain chimbo sister in his phone call in july twenty one he called and sally to report on the status of his swelling given the fact that his doctor had told him that if the swelling continued at that point they might need to reschedule the surgery so what do you think swelling i mean it's swelling in enough  lowered in your tissues and there's not enough room to hold that fluid within a confined area it's confined by stand right so it's swells up in this fluid is coming out it could indicate internal bleeding it could indicate other kinds of sources of fluid but that's what the swelling is muscles don't just like balloon up and become  some indication that his report on july twenty first was something that was a sign that maybe some added risk of a deep vein thrombosis is already happening it's orthopedic surgeon when he rip careers mr presence for report in this case would say just elevated it is all fine just come in tomorrow we're going to take a look and if nothing is going on we'll proceed the surgery if there is so i'm having a hard time finding you know determining know what was the basis of the denial of benefits because that's what you had a physician's assistant who really didn't mean first wasn't qualified in my opinion to question is phrased the question is phrased can we conclude that it played no part and she just says no because sometimes this is an outcome and then she just goes on to  capricious case which means that even if my client should have the burden of proof relative to the exclusion slash restriction language it cannot be a preponderance of the evidence as that would turn the entire never be decided in favor of the victim but judge mel's belief that it was reasonable my client's decision was reasonable based on the evidence in this case i believe that to the standard is not preponderance of the evidence my claim does not have to show that it was more likely than not that the surgical treatment contributors why under government you as long as something is a known risk of a procedure or a somewhere in the universe of risk that's recognized by the f d a or that's recognized by the medical profession you get to deny that's your position is a major standard that is you don't have any evidence no i don't what you're saying because you don't have any evidence that in this man's case the operation triggered a deep vein thrombosis and then broke loose and caused the pulmonary embolus i do know that it developed after surgical suggesting that we should go out and check all the websites we can find and come to our own medical conclusion which i don't think you really want to say generally medical information can be considered and the connection with diseases just disability cases i believe medical information maladaptive the effects of a prescription drugs for example can be considered i think it's not fair to bring you into this debate so i think i think we will take this means that more than a scintilla but enough to satisfy a reasonable mind is the standard that used generally in substantial evidence and reviewing administrative decisions there has to have been more there has to been a n opinion here that said that the surgery was a contributing cause not that the surgery was a risk so is that but what is what is the standard proof when you say was that the standard more than fifty percent probabilit dr in my opinion it's more likely than not that the surgery contributed and then maybe other people don't think so or they didn't say so so maybe on the record as a whole it wouldn't hit preponderance but you know substantial evidence means you've got some evidence somewhere in the record that would support the finding exactly and that evidence is completely nonexistent in this record thank you all right thank you very much thanks to both counsel will take