kate how much time here she would like for everybody but the clerk call the first one three four zero eight four karen russell the catholic have health partners at all health care partners at our arguments not to exceed fifteen minutes per side mr wall over four p that sadly i was engaged in a lot of litigation below before the case that the decision was reported it wasn't my doing but somebody pointed out to me that i may be in the wrong court and in fact there may not be jurisdiction that we were dealing with a church plant as a result of that i filed a rule sixty b motion i asked for limited discovery to determine that fact the magistrate of denied the request for discovery and held that your decision in the ad best case which is cited in the briefs was controlling the district court agreed with that and oddly said that i had not prove that whether or not this was a church plan in addition to  right and the distinction and i'm not going to spend a lot of time on this because i think it's pretty much a new issue your honor is a church plan a type of plan which congress drew a bright line and said this does not apply to under the arista statute you'll see under twenty nine u s c one thousand and three it says just that that church plan does is does not apply as there is not a government plan and it and it basically says it doesn't apply to this chapter or subchapter which extends to twenty nine u s c eleven ninety one or two i  believe i think that that distinguish itself from your red vest decision because ed vest did say in that case that involved a top hat whether it was a top hat plan or not an ad best said well if congress clearly unsee aides that it does not want federal court jurisdiction then it doesn't apply keep in mind in adventist your court ultimately eleven thirty two or thirty three and that's that's what gives the court's jurisdiction over recent claims so i go back to section levon she is me one o three which says it just doesn't apply government plans don't apply in church plans don't apply and i know you have other decisions that we've cited to you mostly district court cases and also the chrono stor case out of another district that says it's jurisdictional i don't think those courts have really addressed it the way you're being asked to address it today is it is a subject matter jurisdiction or as you suggested under our impression now if you get beyond that let me address the two other issues in this case the first issue i'll address is the statute of limitations claim as you're aware the magistrate ruled that under the terms of the contract a lawsuit must be filed within three years of the date a proof of claim is required and that's the standard contractual language for long term disability plan and the better straight ruled that the first time or the time that a proof of claim was required was in fact ninety days after the what they call the elimination period and that would have been i believe february of   eight the lawsuit was instituted in march of eleven or go we're late that decisions wrong for several reasons and i point that out first of all the plan doesn't say the first time a proof a claim is required is when the statutes start it doesn't say that and throughout this case there were many demands for proof of claim but each time that requests proof of claim and they use the same language now interestingly in mock them the insurer did not use of same language in this case they use the exact same language in the in the letters to miss russell they say proof of claim they define proof a claim right out of the policy in those letters so yes it does trigger that and that's consistent with the district court case of worthington v white out of southern district of ohio thing the court says if a letter is sent that triggers the statute you know i do i understand your argument and it is sort of ironic that we would have the limitations period for this language reads more almost like a statute of repose you know that you have to file within three years of the date you have to provide the proof a claim and then that date is itself defined in the contract it's not sort of out you know in the ether it's in the contract and it's pegged to end of elimination periods plus six months in query whether that just creates a hard three month period or year period no i'm sorry at by the end of which no matter what you have to file in federal court or in some court that's a good point and i would say i could have put that in the contract and made that clear it didn't well but i guess i'm wondering why isn't it clear in the contract i mean doesn't the contract define the date on which proof a claim well actually one of my  arguments is it gives two dates it gives you that first date and then it says in the contract if that's not possible you have another year to file that proof of claim and that's in the record but to answer your question logically the reason that it shouldn't apply is this case this russell was found disabled under the first twelve months on a mental disability on the second twelve months on a physical disability which is inability to do your job and then as you aware the third twelve or the beyond twenty four months is the inability to do any job for which you're suited so the proof is different the proof is different the under another theory could be that each time different is required not night additional proof of the same claim but to different claim is involved absolutely even the magistrate recognize that in his decision he said that had some persuasion unfortunately not enough persuasion for another twelve months and odom says to answer your question now we will start to look at your claim for continuing benefits so even who tim doesn't look at and i would say that the question of do letters trigger it that's what that's what the courts have said even the time of soft case which is the supreme court cases you're aware of that says we can you can start the statute running before the claim accrues even at the district court level so not in this case her disability was a extreme anxiety and there's no suggestion that she is incompetent she couldn't perform a job but she's not incompetent just one final point i want to address the substance of the claim a little bit and that is that the definition of when you must file the proof of claim does give you two dates as i said the year and then later one other point your contention that the are you time within ninety days or one year it says it's due ninety days after the elimination period but then it says if you can't do it by then you have one year to do it is it your contention that the one year date is clickable here my primary contention and i think it's consistent with the mark decision in the worthington decision is it starts the last time requires proof of claim that's my contention but that would be our go back argument and requires in your russell you've got you know you must provide proof of claim and she does that in april of zero eight and those are the doctor's records i note i'm out of time and i haven't addressed my further issue let me address that for a minute and i will if i can use one less minute if that's ok on the substantive claim the primary problem with the decision making process of them is that it discounts objective evidence of pain and tell jake gate you said that in the brookings case that's objective evidence limping is objective evidence and whom says simply without and i am me any kind of medical review it does a paper review and rejects that it that would i will address other questions as they come up later and i'll reserve the rest of my time thank you thank you and unum life insurance company of america i would point out procedurally that in an in addition to the arista basis for jurisdictions there is also a diversity basis because in my humble opinion the plant is not a necessary party as the court has ruled in many other cases so if if for some reason you choose to overrule and ballsed which i think clearly applies i think there's also diversity jurisdiction now speaking to what i'll call for lack of better term the two merits arguments i think the statue limitations speaks for itself i think every case addressed this including your honour's case and rice and the united states supreme court case and haim shots have the same fact as this they did not between the language of different claims i know for and there are different claims here though in terms of the first two years being an inability to do your occupation where is the after that the question is whether your situation your disability prevents you from doing any occupation why isn't it we thought that requiring new proof of claim because it just simply does not and if you look at the record your honor it was presented on both the mental and the orthopedic basis initially in the initial proof and as magistrate judge camp said in the white v worthington case sure honor we look not at the letters but we look at the contract  problem that i'm having is what someone who is disabled in the beginning would need to show would be that he's disabled from her job and she might have certain disabilities that fact prevent her from doing her job but don't prevent her from doing any gainful employment so cheap might not have any proof and not even need to show any proof of this more onerous standard which applies after two years so i don't understand logic with premier contractual language in your contract or any other argument why that isn't two separate matters because as a continuing claim your honor remember this  group policy as distinguished from an individual policy and you would lose eligibility were there a gap it has to be a continuing claim or it has to relate back to a disabling event before because different than an individual policy is group and you have to show continuing disability so it's a matter of what level of support you have to show to continue your claim the way the policy defines a claim and i understand your confusion is it has to be a claim at the outset it has to be a valid claim and it must continue the standard to determine that claim admittedly changes if you look at the record your honor at one eighty one i think it will be clear because it it goes through how do you file a claim you file a proof of claim and there after we may request that you send proof of continuing disability so i would submit to your honor's that the contract contemplates that the language changes and what we're looking at  may change for example for a period of time it may be your mental component that disables you for a period of time thereafter it may be the orthopedic component the disable issue but it's akin to continue a claim of disability because if you look at the eligibility provisions if you are not working and you don't have a continuing claim or can relate back to initial claim you're no longer a cover eligible employee the powers that your plan provided for the new standard to apply in your who're instead of in year two at the end of year two and the limitations period in the contract is still the three year period would that then mean that people would have to file suit before the new standard applies i think that's a good question i think that's where both times show off in this court's opinion the rice say we will apply reason ability and we looked at the cases for example i think it was rice and forgive me if i got the wrong number of the wrong case that permitted the found seventy one days left in the period to be reasonable in other words haim shocked directs and this court in rice direct that if the has expired we will and on a reasonable time period i was telling my colleague as we drove down i think of that as i think of international soccer there's a timeout and we will fix a reasonable time period at the end so as not to deprive the yes and i think every case that looks at this addresses judge moore's question and says we will then determine whether that remaining time period is reasonable when we can do that why can we do to him in the mood who was going reasonable i don't know that i can answer that because the social security opinion to quickly switch to the merits found her capable of sedentary work so if i eligible you mean eligible to file a claim that's a complicated question because she would lose eligibility since she's no longer an employee i don't know that i can answer that your honor story you have any do you want to add anything about the merits and i think the merits are simple both both the orthopedic physician dr raines who was brought in obviously by the g p for a look said she was capable of sedentary work and as judge moore has emphasized that becomes the standard after twenty four months and social security interesting lee often i'm sure you've seen enough of these to know found her capable of sedentary work so i think under six i thought that sedentary work requires a stand you have to be able to stand for various periods is that true under your policy we just say center we don't we don't insure a particular job in either a level we we we insure the job as it exists in the national economy they did a vocational review which is in the record i'm sorry or i don't have the site and they found jobs that fit the definition of both the social security administration and as described by judge raines she's made dr raines i'm sorry no i think that's the simple answer rather than getting into a detailed argument on the merits that her own orthopedic physician found her capable of sudden turi work for some reason i thought that her own physician did not find her capable of sedentary work but had a different terminology that he was using in my right now we have two physicians she had a g p whose name escapes me and i apologize because i looked quickly at dr range and she did have another physician your honor and perhaps that one said something different i'm not remembering i suppose i'm down to three minutes now from my very briefly that's a good point judge moore you raised about is a dick claim or proof and the policy according to mr  is one claim well it doesn't really address it because the real question is what proof is needed and what prove has to be submitted and again said we won't even look at the third  level until sometime in late zero eight or zero nine but the critical point that your opponent is making is that this is one continuing claim as opposed to separate claims and don't we have to look at the language of the at the language but look like what language do you point to i point to the words proof of claim not whether it's one claim or not you know there's a lot in this policy that hurts you i mean because that creates a distinction between a claim in the group and i think what your opponent is saying is it's one claim the proof necessary might change over time but it's one claim it's one claim but there is different proof required and different prove were really the first two twelve month periods are not issue she was eligible it's really this this last issue and later in the timeframe is when the interim said show us proof of claim they put that in the letters suppose that what happens to someone is that they are claiming disability on the basis of some accident that happened and they get better from that and then some other item prevents them from working would those be two separate claim if they're with well they could be but if they're in the same plane period and they're saying we can't be you know i can't work now because of this reason i think then it would be one claim respond this way every citation by dr raines who is a board certified orthopedic surgeon skilled in ankle and foot reconstruction every everything in writing he says the moshi can see it is three hours he also says in response to that i'll give you the site so they are twelve seventeen they send him a question here and they say do you suppose they'll give restrictions supporting miss russell's inability to work at any level he says yes the next question says if a or third question if you support her inability to work at any level tell me her restrictions he does say as you question he says sit down only reference to a paper only review of her record we don't know what social security says it's not in the record but that one paper review which is back and i think oh seven says does give her a a more than sedentary level of functioning however i know how this court held social security discounts that record and point out that none of the records in here would would have been available to th doctor at that time so keep that in mind in determining whether this was a reasoned decision this decision and i'll hear if i may may finish this one thought this decision is based upon dr brass discounting the treating physician dr marcus and discounting the the i am me that we got that said she is disabled and say none of that is valid because he goes back to look at social security counseling records and says well she could sit for an hour hour and a half there is no record of complaint of pain you'll see that reference at thirteen thirty and that's why one good reason why this is unreasonable th thank you both for your argument with the court call the next case