growers prudent people by disability insurance this rather sounds like an echo of the last argument to protect themselves in the event that a catastrophic illness or injury prized them and their families of income in return for the premiums that they pay they have a right to expect they do expect that they will be treated fairly by the insurer themselves the coverage of the policy will be interpreted in a manner that is ordinary and reasonable and that in the event of a dispute that they will receive fair and appropriate treatment the courts regrettably in this instance save one exception from the district court terry masel has not received any of that september of one thousand nine hundred five he suffered a massive heart attack after forty four years of age it was unexpected and unanticipated as the discussion was this morning he has never been able to do his job since that day he attempted to return to work as part of the rehabilitation process under the instructions of his physician and his rehabilitation nurses but he was never going to do his job of that there was no question everyone that complete problem was that he couldn't travel when he was working and he was when he was performing duties he was maintaining client relationships supervising employees so he was doing some of the he was executing many of the look at the definition of partially disabled which is right under the resume i can best it was partially disabled the reason we believe that he was totally disabled under a very uncommon reading of the policy is because of the corps which talks about the fact that there's any of that you would hear i don't see the ambiguity because you look at the definition of partial disability which follows on in total and that to me reflects considerable light on what all means in to if you're asking insurance companies the courts to judge where the person is doing their job well you're asking them to do something that's really impossible and they should not be doing so that if a court decision in big macin vigen should be followed here because what nick mack and talked about and there was an eight month period where the employer was easiest part of his rehabilitation efforts timing is when you became totally disabled it was after january one thousand nine hundred ninety seven hartford's along with these very not obligated to pay part of the time the record seems clear he was performing many of the responsibilities of the job simply not traveling i'm not trying to punish the guy satisfies the elimination period our contention is that when you read this clause as what an ordinary and reasonable person looking at it through the l looking at it through the decision and richardson looking at it from the city and indeed in really devise disability coverage he intends to protect himself in the event that he can't work well who are you you're asking us to ignore the definition of partial disability or partial disability rather only applies if he is working at another job and making less than he was making the point is that i don't live in a the total disability provision all the material and substantial duties of your occupation but it was that is that some point in time able to work full time or part time and make a last then he made when he worked are performing at least one of the material duties of your occupation or part time basis and that he's never told her when his positions told him that he had to stop working here is not returned th rough the workforce social security has rated him is totally disabled this is not something that he wants just struck you made mention of the fact that he was only an able to travel it was far more than that the fact that he fell asleep literally every afternoon in his office and secretary would have to close the door he could not do the job required of him as the executive vice president and general manager of that office as there was no other position for him to take but the definition of partially disabled is not just working part time in your job you either can do your job or you can't do your job as we read you are going to do single use a different character it is a different job earning  money so that hartford makes up the difference between what you are able to earn doing something else and what you would have been entitle to up to the maximum of the coverage if you stayed in your job but that has never occurred he has never had another job after this happened now the second reason that he was kept going and why they paid him was not only to try to help him rehabilitate but for the same reason that they kept him on from august when his doctors told him you can't do it until his successor tim hart was in place which was to try to keep the hyundai account under the roof of bates ultimately it didn't work ultimately the hyundai business with elsewhere and thanks to my knowledge doesn't even exist anymore but he was not being paid because he could do the job they were paying to try to get him rehabilitated and then they were paying him until mr would start not because he was doing the job and that's clear in the record mr white it seems that in his declaration there's no evidence to counter that's what was going was better than him and then it became later this to say that the post operative studies on his cardiac function measuring the each action fraction found that it a condition at the time that he was being paid post heart attack and if we were going to find that he's totally disabled within the meaning of the policy based on his current condition that would mean that he's totally disabled within the meaning of the policy back to the relevant period yes because his condition has not improved and what is true you know has a deteriorated it has died because of some rather remarkable drugs which have come on the market which were not available in one thousand nine hundred five particularly his reference to the record among the things that he takes is couric purpose of korea is to prevent the left ventricle of the heart from increasing in thickness in response to congestive failure it prevents what the physicians refer to as remodelling rejection fraction remains at about thirty percent if he gets lowered to the twenty five percent range then he goes on a heart transplant list so he has been able to maintain a plateau but he doesn't get any better he still has the same problem they fall room every afternoon he nodded off in the mediation with the nice circuit mediator that we held trying to resolve this case you can't stay awake in the afternoon he can't do that job under this under hartford period of coverage and if we were to agree with you that he was permanently disabled even at this early or period how long i should know this but i do not long term disability falsies are replaced with income if you have no income to replace you are not disabled the undisputed facts here show that he did not quit working until after terminations are policy the many years now well as of today i have no idea what his physical condition is certainly from the time he had a heart attack he did improve such that he was able to go back to work boss says i'm sure you're familiar with those although he came back to work he was unable to perform the job of vice president general manager although it meant that i was required to continue spending significant amounts of time in the west coast in order to cover mr masel i decided to keep month payroll because he was a valued employee so the managers really saying isn't it in the not and then was totally disabled couldn't perform the work i was just carrying on because he was a valued a different type of event they were a number of months go by in their own able to work to go back to work are right there in a worse position to pelletier because they go back to work another employer then they stop working again and they no longer have d policy at all this court determined well yes the trial court first determined you're entitled to l t d benefits because you are disabled old enough to the point where you go back to work while you're working you're not to sleep because actually i don't think that has anything to do with this because i look at the definition of this disability it says nothing about whether you're getting paid or not it simply says whether you or your prevented from doing all the material is substantial loser your occupation we got the guys boss here saying he can't perform his job we're simply carrying on because he's a good guy i doesn't say anything at all on the policy about but if you're getting paid even though you're dead you can't you know you can't be disabled it's whether you can do your here the guy worked for us for a long time he did a terrific job he was doing his best he was trying to hang in there he couldn't do it we carried him rather than throwing him out and then we finally decided ok time work ah but they carried him your honor if i may because he was valuable to them because he truth nobody would hire him well that would be a different circumstance here he was hired and being paid and all went now you are sliding off i'm trying to figure out what all material and substantial duties means and you told me that circumstance the declarations were that he was kept on because he was valued because one of the things he was doing was keeping up this relationship with one of the firm's the client but turns out it's not sustainable meaning he's there for a little they're hoping he can work turns out he can't that's right and so his claim arises at the time when he actually stops working you know it sounds to me right much like this is a claim this is a genuine issue of material fact whether it was  wasn't the bottom going to come in and say yeah he was there he was going through the motions but he wasn't performing i was covering for him all we were trying to do was was help him out that sounds like enough to sustain a verdict in favor of the proposition that he was circumstances of the job it's very fact specific you have to look at somebody's occupation under the any office standard in see what there are speech involved but certainly if the employer is willing to pay somebody even if they were a paraplegic to talk on the phone their full salary declaration that he has a new job his new job is only to talk on the telephone when trying it out and doesn't work and if it doesn't work the person stops working and that's when their disability claim arises that's how somebody is not the doctor says if you go back to work or even try to go back to work that seriously endanger your health you simply can't go back to that job none the less his employer pays you know for the next two that and will pay some employers of salary continuation programs setting all that aside if they're not actually coming into the office if that or if they're actually not even doing any work at all then maybe they're not perform all look at what happens if his value in here is in the fact that from time to time you can whisper in all the files there and if that is valuable enough to the employer that they continue to pay him his full salary you know i would insurance co to take an article back in effect past issue policy they had a proceeding and now in fact there's a separate lawsuit your honor it's not in the papers i don't think it's relevant on challenging and so that issue was up in the air so again that would only affect future controlling the person didn't because they went back to work during the period that they are at work and getting salary they're not disabled when they quit again they might be disabled and that's when their claim right here is a rose under the p revere policy he's not l he made a claim under paul revere he pursued that claim for four years before he ever made a claim to hartford he'd been told by the employer that his claim insurer was changing from article hauler paul revere there was no method it's a matter of law under the common law versus your own regardless of what it says in the policy or is a long term disability policies are intended as replacement of income if you have no income to replace your therefore not disabled your not forfeiting anything because if openly stopped working yes when your disability claim rises and that's the point at which you look to see if somebody is disabled of course you look policies were not intended to bowl to cover disability for the same policies in fact a recent claims that are fully insured is when are you've got one policy to fully insure you don't have to policies there'd be no point unless the insurers had some agreement to only cover half of whatever your percentage of salary was net was there's nothing in the record on and that was not the case here i did want to see i cited some other cases in my papers your honor similar to from other circuits around the country for me talking magnetic which he was before i disagree court with the same policy language at issue here and it does record in that case found that well when you went back to work and during the period you were working you're not s e i did want to mention the attorney fees issue i think that the court should have found hartford as the prevailing party certainly had the meritorious position was entitled to its attorney's fees in the circumstance he knew that his claim was under paul revere he you look at those five factors and it is an abuse of discretion standard i believe the district court of use of scratch and the manner in which it looked at those by factor you're arguing that he is pursuing his claim policies duplicate benefits for a single disability in his claim arose africa at work that's what the undisputed facts show writers and i believe that plaintiffs and defendants should be treated the same i made then a reference to christopher reeve who was then still alive under hartford's of her profession christopher reeve as a quadriplegic would not have been totally disabled from doing the job of an ocean lifeguard because one of the essential duties of an ocean lifeguard is can watch the water for swimmers in trouble and the strong stance response to the district court was as long as the state of california was painting he would not be totally disabled well again to my reading that flies directly in the face of  if that's right what happens well i believe you are that it should result in a reversal because although i did with the rest of your argument well we certainly dealt with it in the brief the district court used the score wrong standard of reviewing hartford's conduct it reviewed it for abuse of discretion the documents that we're looking at i believe are a summary plan description we also grief the fact that hartford did not comply in any way shape or form with the risks requirements of our notification when they  if the court determines it should have been de novo then you can remain and and instruct him to deal with the issue of fact lastly judge or any discretion can we do the same thing but it's just harder stand if we could just as time goes to trial yes well  policies and we think the first the opinion letter is enough as an intervening change in the law to take away discretionary review in this case now reviewing strains passing in the night the other side says this is purely perspective  by a gentleman named jeffrey a puzzler who was a lawyer with hartford in his home office in connecticut that the forms that are before us what we think is a summary plan description had been approved by the department of insurance well we have filed a request for supplemental judicial notice of your honor and have provided you with a certification from the department of insurance that says none of the forms in that document were ever submitted for approval by hartford so the prospect of withdrawal district court well and then we would be back where we ought to be which is that there is in fact a genuine issue as to whether this man was totally disabled thank you very much thank