about this claim essentially involves a dispute regarding the calculation of mr gallons pension benefits under the pension plan of his former employer union pacific struggling contends that his pension was incorrectly calculated specifically one component of his pension benefit and the a factor involving his final average compensation he provided contends that if there were correctly calculated under the plane and in fact he was terms of the plan that key terms which is the definition of final average compensation and another definition for separation of circuit from service that those two terms are plainly defined and are interpretation or rather the execution or application of the terms as done by union pacific as accepted by judge did or contravening the express terms of the plan specifically the definition of conflict of interest changes the standard it reveals we understand and accept that the deferential standard of review applies here however even under that deferential standard to review the interpretation or the application must be reasonable for the conflict of interest that's just whine about to leave six factors that come into play we addressed it for that reason as an alternative argument but it's certainly not our primary argument the basis of the conflict of interest if that is on and actuary is not being paid straight out of the company's benefits the supplemental plan however is not handed the benefits under that plan do indeed come out of union pacifics general assets so the conflict of interest is not just a simple application of this is a full refund and play and the company has no interest no financial interest in whether m gallon gets additional benefits or not they certainly do because in this case the correct calculation of his final average compensation would take his benefits out of just simply the pension plan and put them into the supplemental pension plan which does come directly out of their assets what about the special  worksheets almost as to this is what it would be your this is what it would be under this calculation right i discussed you ation but his pension benefits did not come into play until two thousand and twelve and that was the first time we could actually absence under this plan through out the plan the time absence including in section two point eight team which union pacific group relied on slicks of absences in the context of individuals who remain employed they may be on some type of leave of absence but it doesn't terminate their status as an employee or as a cover employ that's the key distinction with the two point six seven two point six seven what a different category of events which causes a separation of service otherwise why would you need to put total disability in there as a definition of separation of service if it's if it's an absence i would also  point out that the remainder of that phrase says any absence that causes him to cease to be an employee and there is the key piece of the separation of service definition if you have a separation from service all of separation from service as occurring when someone suffers a total disability at that point the separation from service occurs and he is no longer a cupboard employ for purpose of the plan the reason he can take advantage of additional benefits acquiring or not even benefits but an additional pieces of benefits of quitting after that date is because there is a special exception but only for accredited service there is not an exception or any alternative definition for final average compensation in credit service however there is a specific exception specifically for the period of time during which someone is a total  compensation is calculated there are other reasons including the fact that again gets back to the question regarding absence and the plant treating at dances that do not cause a separation of service as a different category from total disability which does cause a separation from service and in essence i believe section two point eight teen is a bit of a red herring in this case because the date from which final average compensation had any parallel between the time during which credited service may be applied and the time during which the final compensation for purposes of higher average compensation must be counted their separate concepts they are separate pieces of the formula for crude benefit that can also be basing looking at additional sections and article six where if you go on i believe it's section six  six through six ten and actually continuing through the end of that article there are a number of provisions that provide for enhanced benefits for certain employees and that is enhanced benefits almost always take the form of additional years of credit service there be totally disabled my understanding is that there's no disagreement that there's a total disability here chris or if you have a separation of service and a total disability and therefore you have a disability then you have a separation of service and the separation of service nation no longer an employee he is that correct correct and if you're no longer an employee under two point two one you no longer can be a you cannot by definition be covered employee that's correct covered  him and but you can't look at two point three five in isolation read this group back through to see well by one m i correct in the decision tree but i laid out yes but you need to then ultimately we're here about the retirement benefits to which he is entitled which is set out in article six at the outset six o five deals with article six of article but not article two which is the article w watercooled to of course is the definitions betting form all serves as to what that benefit is going to be that pension benefit to which the participant is in title and six point zero five says we have a group of participants here that we're going to call disabled participants by virtue of that decision tree that you just laid out in terms of the total simple it so he's now a disabled participant in six o five says notwithstanding with separation of service that occurred in ninety seven we're going to treat for purposes of determining that pension benefit too which is in total we're going to push that out we're going to look at this period during which he continues to be a disabled participant and so now we have to look through that lens in looking at credit and service and compensation and then finally final average compensation which are the components but you know that any country the disabled participant unless you have a disability date right yes and you said to me that he is a disabled participant under two point two five he does have a disability date of ninety seven or two point two six he does very you could have either of those who issue of a separation of services sort of works right but he had the separation of service because under rules that allows him at that point under the new treasury regulations to commence a benefit commits his retirement benefits but the claim goes on  say we're now going to treat him for purposes just of calculating the benefit as if that separation of service doesn't occur until much later date that isn't a date when he ceases to be disabled or just as a reason for that  just an arbitrary i think the reason for that is to give that disabled participant the benefit of those additional credit ignitors of service and to deign compensation for those years because typically just before the disability or the less years of active employment are typically the highest earning years in this case you had somewhat of an extraordinary sixty situation because you had a fairly high level person who had some significant incentive compensation and had quite a long period of disability because he unfortunately became totally disabled at an early age so he took advantage of part of it as you mentioned these other benefits that were available to them including long term disability benefits which provided a much richer benefit than taking his retirement early which absolutely was his right and was a wise decision on his part retiring early in those early years with the incentive compensation would have been counted were included but then he wouldn't have gotten the dish no use of credit services in response to my question those components and not only do we say we're going to treat them as if the separate separation of service occurred throughout that period of disability and being a disabled participant but we don't go to four point zero two which says and purposes of compensation we're going to give i were going to do in compensation when i assume this person continue to receive that same base pay rate for that period now let's go back to four point zero two when we were treating him as if he were a co all that time looking back credit it sure was under four point two that's what it is service but where does that fit in with regard to final i was compensation because that's how we're figuring out the compensation we're using that same period t for any periods during which this participant including the disabled participant that's in the preface to the two point eight hundred three a three c when this disabled participant is being given credited six so forth is if this contract is deemed to be ambiguous isn't you get so difference russia how much because perhaps there is a conflict of interest because of sure  participant then changes everything in terms of effectively he was a covered participant until he had a separation from service that occurs on the date when he likes to take benefits that's right and  service when we're treating him as if he were average employee and we're going to deem compensation why else would we deem compensation if not for purposes of that final average compensation and if you look at two point three five carpet you have to be on to something else six o five which covers credible years of service some also includes final average compensation which i don't see in the text of six o five and four it doesn't overrule it it says this is how we're going to treat a disabled participant for purposes of the retirement benefit which is composed of service credit service compensation and then finally final average compensation there would be no reason for deeming compensation a two point eight team if it weren't for purposes of the status in compensation for this retirement two hundred plus pages is this really unusual case factually is that why this seems unclear to me there is this sort of thing happen all the time with this plan maybe you don't have experience with this plan but it just compensation you can see it so why all the complexity here i think i don't think it's unusual for employees or go out on more interviews ability i think it is somewhat more unusual for somebody for this wrong period and to be at that level where the taking out the service and the compensation may work against them as opposed to in favor of them i think in most cases it probably works in their favor it because they're getting the benefit of that last pay rate which is typically going to be their highest base pay rate and incentive compensation is not going to necessarily be a series of works against allie was related to me the fifteen years the rate of the disability right because he's just getting the base pay rate as opposed to those inclusion when he was an active employee the incentive compensation would be counted as well and he could  opted to get the benefit of that higher compensation instead of compensation but the downside here is that he would he would have retired he wouldn't have been able to collect all the benefits today and he wouldn't gotten the additional that for purposes of determining the pension benefit to which is intitled we're going to treat him as if his separation of service occurred on the day he ceased to be a disabled practice so it's i'll start with section six point zero five since that appears to be the hook on which union pacific bases its job to basically change the definition of final average compensation the short answer to your question posed to opposing counsel is that section six o five does nothing to affect the definition of final average compensation as you no the other provisions of this article article six those provisions of article six applied as if his separation from service occurred on the date he ceased being a disabled employ article six sets for the time from which the time when an a participant may take his pension benefit even article six about pension it is about the time when they may be paid either on a normal retirement date an early retirement date a postponed retirement date or in the case of a deferred that's to benefit still requires it to be either on one of those retirement date disability benefits but it is it does not provide a disability retirement benefit in fact it does just the opposite it says you can only get your pension benefit after you cease to be a disabled participant this is not a plan that is structured such that disability can result in qualifying for the pension what disability the benefit of disability that's provided in employ there is a special exception set forth in the plan for that there is no corresponding special exception set forth for the calculation of final average compensation and in fact the interpretation that is posited by union pacific would make the definition of separation from service as being triggered by total disability completely meaningless they tried it was scared that separation of service  defined as total disability because that would trigger some right to some type of disability retirement benefit this plan doesn't provide that this plan provides exactly the opposite that you can only get your pension benefit when you otherwise meet the requirements of early retirement or normal retirement or postpone retirement and you can only do that after your disability is over so it makes no sense to on the one hand defined separation of service as being a total disability only to then in section six o five say that it doesn't there is only one purpose for total disability being defined to accomplish the separation from service so far as i can tell and that is for the calculation of final average compensation