file a claim for disability pension the claim was was denied the plan had expressed arbitration provision which mandated that in the event of a dispute over permanent total disability the matter would be submitted to a cool new facility i have a difficulty with your friends maybe you could straighten it out your grief indicates this is an arbitration the nature of an arbitration is an arbitrator is selected both sides provide evidence the arbitrator makes a decision you know that wasn't the case your client went to dr gold dr gold made a decision and all the trappings of arbitration assume that this is an arbitration case but it doesn't look like an arbitration case or doesn't smell like an arbitration case it looks more like a person was designated to make a final opinion but that isn't necessarily arbitration how does arbitration argument get into the case other than by council setting at stake it's arbitration but you know if you're honor that the reason why the arbitration argument gets into the case is because there with there was a contract in place that said that in the event of a dispute about this issue that the parties would submit it to somebody who was a mutually agreeable arbitrator and that i didn't use the term arbitrator it did not use the term arbitrator  contract says it will be submitted to a doctor an independent doctor for a final decision which would bind both parties arbitrator was never used the word arbitrator which was never used your honor there are numerous cases and just circuit and elsewhere t say that the language such as final and binding which is the language that we have here a final and binding determination it means i find that in one case it was a district court case by a very eminent district court judge where is a ninth court for example or to the mcdonnell douglas case which is granted a second circuit case but the language is it is in our estimation irrelevant to the contract language in question does not employ the word arbitration ab such rather what is important is that the parties clearly intended to submit some dispute to their chosen instrument for the definitive statement of certain grievances under the agreement what was the citation that said eight fifty eight said second eight would be submitted to dr gold and that his decision would be final with respect to this and that both parties would be bound by that agreement itself you know with respect to this is the trappings of arbitration i granted it doesn't look much like make a determination the determination will be final and binding on you and on the employer so here we are and that's what the language says how does that now play into doctor gold issue is clear and unambiguous or at least capable of being interpreted by the by the district court and the third issue is whether presuming that dead doctor goals decision this was was so one player that was incapable of being interpreted clear that the parties objected strenuously to both dr gold and the videotape but it's less clear with respect to dr gold than it is i mean to the extent that's possible and is with respect to the videotape which we don't want let's let's take them one by one let's just first talk about dr gold and perhaps you can tell us what your position what you think your is reflected in the record on waiver it's having additional testimony from him and issue i mean i think there's at least five separate points in the record at which the mr repetitive counsel explicitly objected to the testimony of of of doctor dr gahl that there was a trial brief there was the  statement that opening there was written objections that were filed after the opening prior to any witnesses testimony testimony that that objected to both dr gold and the videotape there was my statement that the  not not indicating what he should have said but on some basis of the two points you want to read in context mr context mr tanner statements were just a response to the defendant's position which is that we were trying to cover up some fraud and that if more evidence could be shown nine and so you had to say that we're not concerned about this evidence and there's nothing in here that would hurt us but the more significantly there is that the the fact is that after those statements were made that the plaintiff filed written objections to dr cole testimony in the videotape i provided this court this morning and i'm sorry i didn't get it earlier but i did discovered earlier a letter with respect the supplemental supplemental authority and that's the chip general signal corp and that stands for the proposition it's a nice circuit case and it stands for the proposition that you know a party in that case explicitly agreed to a set trial procedure then later on when the set trial procedure turned out to be not so favorable for it it then set forward objections and this court held that the fact that you objected to something even though you explicitly agreed to it at some point meant that there was no was no waiver in the matter was just to be argued for if the doctor if you if you didn't have the video tape and you just had jack to come in then i assume you consider his visit to the trial kind of harmless correct the certainly your honor the i mean the you know there's what is good for our case and then there's what's right and what comports with the law and those are not necessarily the same things i think if you have you know you read dr gold the director certainly all he did during his direct  trial that you're now saying was improper or at odds with his treating it as a blind me yes your honor i do because that because i believe that his statement is written decision was clear and unambiguous or at the very least could have certainly been enforced by the by the district court it was certainly clear enough for that and that being the case i think that it was improper to bring in you know someone who was effect tape your argument is that that really doesn't relate to the doctor's opinion correct my argument is that the parties agreed to submit that the dr gold you know the videotape could have been submitted at the time it was not dr gold issued an opinion and if you're going to maintain the presence as defendant is apparently doing that what was really taking place before judge dredd was just giving dr gold an opportunity to clarify his opinion which was ambiguous it makes absolutely no sense to say well what we're going to do is show him additional evidence because really what it is you're doing if you're taking a second bite at the apple you agreed in writing that you were going to allow dr gold to decide this matter was submitted he decided it and now we're having a hearing for the sole purpose by showing him additional evidence which is not in the record and which was not shown to him before we're going to show him this additional evidence in an effort to get him to change his mind and that's what took place and i submit that it's improper and it's it's in violation of the obviously arbitration but i see it as a case to follow the contract which has a person a decision maker if that was the status now i look at what judge ray did and he made the decision as to whether or not your client is disabled the question is was he off base in making that decision and i went back to the complaint which was filed by the plaintiff in this case and it doesn't say anything about enforcing a decision by dr gold the complaint is s third paragraph eleven a controversy now exists between the parties to the whether the plaintiffs continues to be disabled as defined by the terms of the plan plaintive seeks a declaration by this court that he meets the plan definition of disability and is entitle to continue long term disability that benefits from the defendant now there was no pretrial order in this case which would by our rules substitute the initial plea for the initial pleadings so this case went to trial under the complaint the complaint asked the district judge to make a determination as to whether your client is disabled the district judge made the determination as to whether or not your client is  to wonder why we should reverse the district judge for doing i understand your complaint i'm just saying i'm not sure it's in the pleadings or the legal issues presented to the district judge but your honor the legal issues were were clearly presented to the judge i concede the court's point that the that they were not presented to the judge you know the precise legal issues that i'm arguing here in the context of the  that it was based on evidence that never should have been made and then the decision would be perhaps regular simple and here i thought you were you were arguing that under our law and  courts have like what are we supposed to do but it did no matter how confusing it might be a couple principles of large and two of which playing in here certainly the plan documents are controlling and we have the document here that says the doctor is the final just the opinion in this matter and second under mongoloids a that the district courts not supposed to take additional evidence generally unless it's you know sensually absolutely necessary in order to clarify the record well and dr gold submitted a letter which says the person is temporarily totally disabled is unable to work in any capacity and then he goes on and he answers the insurance companies questions yes he's totally disabled he's permanently disabled and then at the a remote possibility maybe he could come back maybe remotely so with that even if you thought that there might be some ambiguity with respect to dr gold's opinion as to what he was looking at what is the legal basis for admitting has not formed the basis of dr gold's pinioned which and your tests your agreement that that would be the decision maker back up also recall the videotape and and still rendered a total and permanent disable i don't even see how this is legitimate impeachment i have no doubts or goal because he never saw before i don't believe and i think not his opinion the court but the opinion he would make now the video has nothing to do with the opinion he made has may have some due to changing his mind but if you entered into a contract that will only be determined by what he said before that i can see clarification of an ambiguity if there is any it looks pretty straightforward but it wouldn't be bringing in new evidence that he's better or worse he would have to be clarifying a prior opinion not the current opinion so i'm having difficulty with the with the relevance of anything that happened after his opinion was made maybe you could is today he may have been following the complainant just that he has to make a decision and if i read the complaint and there was no pretrial i might come to the same conclusion i need to find out what his current condition is today and i say sure bring in the evidence that it will help dr gold make appropriate decision but i'm not sure if the pleadings don't govern and you just have the plan which talks about a prior opinion i'm not sure changing his opinion by subsequent facts is relevant to what you contracted would happen that's where i'm having a problem well i think it's relevant once the court opens us up on a you know both her view and i kind of a whole trial on the topic i mean it because it i don't think the district court if the question was well what did you mean by a remote possibility or what did you mean by possibly there could be so hard to imagine sedentary job that he might do what do you mean by that because then you have to fall into what does total permanent disability mean under the plan which is not necessarily the same as we think of it you know in terms of common parlance so it just seemed to me at the end of his direct examination there was nothing more to be had actually it was quite clear if there was if there was any ambiguity before so i'm just thinking that at that point really does here in the end is he honors the contract but in the context of the trial in other words what what dr gold ultimate opinion is is he's not totally totally and permanently disabled that's what comes out across and and what s as i think which was pointed out in the questions he was asked a precise question of total and permanent disability and his response was yes mr a pet is totally and permanently disabled i submit to the court that the language of a remote possibility was further treatment that he could return to work you know it isn't legally relevant language i mean you know there's a remote possibility that almost anything can can take place is a remote possibility that i could burst into flame in the next ten seconds but you know that's not i hope not not to your honor the that's that's number one and number two the defendant did know about the videotape when it submitted the matter to dr cole and it knew about the videotape when it decided the case it obviously didn't think the videotape was necessary at the time because if it believed it was necessary at the time it would have taken some steps to work to obtain it and so it seems that we need to kind of give them some more evidence and hope we get a better result this time which is which is clearly not the intent of the contract and it's fundamentally unfair and on top of that your honor of finally with respect right now in any case that i have pending where you you know what you're really asking for is the judge to overturn the determination of the of the plant produce jerry but if you get an order that just says that then the question is well now what happened you if you know if there's not a finding that it is it that mr pett is entitled to what the benefits were given some way shape or form and i'll admit it could be done more more artfully than you don't mr a pet it doesn't get doesn't get paid which which is the point