upholding the pelleas motion for summary judgment in regards to the statutory and common law of bad faith elements of the claim as well as a counter claim by the  sees me asking the court to overturn the trial court's denial of their rule fifty motion for judgment notwithstanding the verdict we would be asking the court to uphold the trial court's decision in that matter in regards to the st issue the appeal to for the court the standard review for this matter  the common law is must prove we must prove that they acted unreasonably under the circumstances and knowingly or recklessly disregarded the validity of the claim there is evident in the record undisputed evidence in the record that they acted on reasonably by not having a specialist look at the records that were submitted on appeal instead of having a general practice doctor with no orthopedic experience review the records or form an opinion so what so what's your evidence on that your honor the statements of fact from from the original that their policy also has doctor qualified in the same area analyze and review in addition there was included driving as well as lifting twenty five pounds on the appeal we provided to them a statement from her orthopedic surgeon a functional capacity evaluation a report from a vocational expert who had interviewed and conducted an investigation of missed and of all in her capabilities as well the statement from our client of her pain that information was once you've got that information they had a meeting and they decided to send this to a general practice person to review everything they did not send it to the original orthopedist who had reviewed it previously so this  a fact admitted that he didn't he would have been i guess a neutral reviewer he would be biased by the you know if they sent him if they turn it back to the same previous doctors would not become a more bias situation and bring in and have a rd party independent doctor your honor this person was an employee of you know the the point is they did not follow their own policy in that they did not get the specialist an orthopedist to understand who specializes in spinal neck surgery instead they send it to somebody who's done some hospital rounds and done some stitching and been a hospitalist  to review as well of the functional capacity evaluation he has no expertise in that area but he knows wouldn't if the is in so dr mcalister did give a reason that you dispute that he didn't see that you submitted on the ministry of appeal didn't reflect the heart rate for each one of these activities you point out that i think for the iso inertial lift in carrying it did that there were a lot of tasks that were assessed on the in which there is no reflection of part rates so why does it matter what doctor we calenders visual t was because you haven't come forward with presented any reason with the benefit of consultation with the specialist that would just that would give us a reason to disbelieve his analysis on the piece of regarding i believe it was the pegboard test but don't quote me on the exact test but misandry all plath and flying colors in the ninety percentile he was cross examined by that about that and he said well the standard or the baseline for that was done around the turn of the century from women who did shuttlecocks on when you make fabrics and so that was one test is that everybody passes that test he also explained where the heart rates were done within and he also explained the other factors he uses to see misandry ball or anybody conducts these on our exerting true effort is this trial testimony you're talking about yes or no ok so so let's let's assume that you thoroughly impeached him at trial it made him made him look terrible like he didn't know what he was doing how does that equate to bad faith at the summary judgment stage you know what do you what do you have at summary judgment that shows that the insurance company wasn't wasn't able to rely on him their own policies your on their policy that they will give deference to treat physicians ok so let's talk about that i mean you agree that they don't have to always defer to the treating physician right i mean it's something they consider they give great weight to the treating physician but if their own internal personnel disagree with the treating physician they don't have to completely just give way to what the treating physician says today your honor i believe according to their policy is to give them deference what is deference mean does that mean they give the treating provider more credit than two of their doctors does that mean they they hold off on their opinion because the doctor the treating physician gave that that was something that was not presented to the jury to decide that as a material fact what does deference mean in the case of this does it mean oh we'll give him the same credit we get three of our doctors that aren't more treatments or we'll give him we'll give him all the dr barker did reply to their letter he provided their matter he provided medical records in reply to your letter he did not have time to sit down and give an interview to a doctor he thought he was giving medical records to another trained professional who would be able to read them and take into account believe i don't believe them simply trying to call and if he had replied with nothing then they might have something but he sent his medical records he had replied to a previous letter a month i believe it was thirty dollars to forty five d beforehand he had replied to that letter they sent another letter he sent the medical records and said no changes he had placed her he had not released her back to work until june they could off benefits in may i would argue does not deference to seem to exist and he asked for another six months to reevaluate her come in june and they cut off for her benefits in may is the difference have to go to the treating physicians final decision to release someone to work or is there deferring to other things that the treating physician might a pine about the sort of the building blocks to the ultimate releasing someone to work your honor i believe it according to their own policy it should be deference in all of his opinions so in your position it would be  treating physician says she can't go back to work then basically no matter what any of the company docs say they have to live with that if i'm sorry you don't do you say could or could not go bail that she could not go back to work then the company and even if the company docs disagree they just have to live with that your honor i believe then they will have to do more investigation maybe that's when they have the other policy when they are in in force the other policies of requiring this and of all to cooperate to do a nurse practitioner interview to do an eye and a to potentially get an outside source to do an independent review paper review because all the experts or all  dr parker he did that's what he wrote in his reports their failure to get the treating physician who is touching and actually visually looking at the patient  and with respect to affirm the summary judgment award we certainly urge affirmative summary judgment ward a district court is not required to go beyond the reference or sions of the evidence in deciding summary judgment and this court is not does not reviews district courts decisions on summary judgment based on materials that weren't adequately brought before that as mike are just there are to adequately brought before the district court and so what we have here is a an unusual case before the district court unum presented one hundred and twenty three material facts that showed an extensive review by three doctors in response  mr under judge martinez's rules miss and of all admitted rather than contesting each of those facts with a with a q a couple of exceptions but by and large admitted one hundred and twenty three dollars facts and that she offered in place for her  positions fifteen facts and those are the facts on which the district court was allowed or entitled to decide courts are not restricted to facts a district court can go looking in the record if it chooses but complimentary or contradictory to your one hundred and twenty three facts they were i think would be fair to say both some of them are certainly sort of run in parallel and don't directly contradict in any fashion but they are dish will and some of them aren't facts and so i would like to focus this court on the facts that were offered that were supported by the expert report because on appeal certainly on the opening brief the expert report is the basis of the appeal industry standards is sufficient to show bad faith that's not a fact and it doesn't the expert doesn't add anything so the district court properly did not you know treat that as part of the analysis that he had to consider as a st standard the nd fact was it is not reasonable to adopt a non examining physicians opinion simply because it supports denying the claim again it's not a fact and isn't supported by the expert and by any other facts cited i missed and of all before the district court there is no evidence in the record that you know i'm merely adopted it's physicians opinions because they supported denying right to happen independent medical examination miss and of all was in fact informed of the right that she could ask for an independent medical examination she didn't and the key on summary judgment is that there is no evidence of a standard requiring him to actually do that so certainly unum could have asked for an independent medical examination but the key question here for reasonableness is is there any sort of  or statute or policy requiring them to do so and there was no evidence of any of those things you don't can i broke that a little bit is the fact that her  documents they're not looking at her and yet she is saying i am physically in pain ok true i have five out of five range of movement but i am in i am in ff isn't it reasonable inference that when the condition complained of is pain that you need to have it it's unreasonable not to refer to someone who will at least be in examin a standard such as the one that you just identified that unanimous post when it's pain do something different and there was just no evidence that regard i think you know on page thirty of the order the judge makes it very clear what he felt he was facing in this case he says and of also total failure to cite any evidence supporting her position in the argument section of the brief is the undoing of her bad here the district court was presented with a total absence of the miscible evidence on standards that ric support the criticisms that she was making about this review and what she needed to do in order to survive summary judgment to be able to get over the hurdle for unreasonable is a stepless the yardstick for what is some evidence showing the yardstick for what is reasonable and what is unreasonable and then some evidence to support that you know failed to hit that yardstick now the rd fact that was cited below by the  for the expert is to properly evaluate the claim you know him should have requested additional testing conducted additional interviews contacted the provider to clarify results or read all reports and that's a statement found in the expert report that's the what i just read is the proposed fact from the brief in response to the motion for summary judgment and again the the expert in this case did not offer any sort of facts showing what the basis was for his assertion and so or frankly facts supporting it like for reading all reports there so there's a complete absence of evidence supporting the notion that they didn't read the reports here i mean so so in your opinion what should he have done should he have listed out i've you know reviewed hundreds of these claims in the lifetime and i'm aware at that i'm aware of the items that insurance companies not to consider and one of the items they should consider is whether there's independent evidence of the pain in they should also routine and in the other two hundred cases i've reviewed they've conducted and i am me and mean it's are those the kind of facts that he needed to support is certainly within the law the home and case among with respect to some other criticisms i don't occur in this case that statute may be more relevant and then it would be an expert report just like an expert in any other industry who says i have you know don reviews like this and this is the process and when i have faced a question like this i consistently take another action explaining for example in the f c c so there's criticism of the f c c and the fact that dr mcalister only stated that he was frustrated by the failure to show heart rate for individual tasks well if an expert typically if you want to provide this will evidence challenging that is being unreasonable you would say in the industry people when they face this question take these actions based on my experience doing this type of thing there's nothing like that found in this expert report and certainly nothing like that found in the facts urged on the district court in the response to summary judgment  reply i believe the st time we hear that this case is truly about actions taken only after appeal there's no support for that in the law that you only look at one narrow sliver and i certainly have found nothing suggesting that and i would urge on this court that the appropriate review for reasonable ness is the whole host of facts and certainly that's what the district court looked at  one thing i would like to mention is that we raised an alternative argument so there's a common law claim a statutory claim the common law claim has two elements both of claims have the reasonable aspect become a claim also requires knowing or reckless disregard and we below argued with that with the trial court that there was insufficient evidence on that point the court didn't get to it it's an alternative basis for you to affirm with respect to the common law claim we argue in our brief there was no response and so at the very least we would urge that that got the common law claim must be to affirmed the dismissal come a claim on the  on the cross appeal  we raise two issues one is the occupation question and the nd is the regular care of the physician question i do want to clarify one thing in our request for relief in our brief we asked for reversal for dismissal that's incorrect if you decide our way on the question of regular care of the physician we can see that she was under regular care the physician intel october of two thousand and sixteen and so there if you agree with us it should be a remand for a recalculation of damages not a romance for dismissal if you agree with us on the occupation question it would be a remand for dismissal i'm focusing the october two thousand the dates mix me up is the october two thousand and sixteen date the last day she was seen by the physician correct ok and so your position would be that the position telling your ok i'm to see you today october  h i'm keeping you on as a patient come back if you need anything that at that point she's no longer under the care of a physician correct but if you had given her appointments come back and see me and six months i think that would be sufficient ok i think that's evidence of continued treatment i think we all go to the doctor and when things you can always go back to your doctor something comes up and so what the requirement for regular treatment is trying to capture is there is some sort of ongoing treatment for this type of problem for chronic pain it's the it could be a host of things there's nothing in the record stablished by them showing regular course of treatment for regular pain would be at trial but one could conceive of you know prescriptions come back to make sure the prescriptions are working or not working it's something prospect of it's not it's not backwards looking but it's prospect of that there is a in a condition that requires some sort of forward looking you know care by a physician other than whenever the patient decides they may or may not want to go back what if he had said i don't know if you're going to need to come back or not it's going to depend on how well you progress so i'm not going to schedule an appointment for you now but if you need to come back call me and make an appointment so the definition in the policy of the regular treatment is care like that given for this condition and so we're the evidence to support that for a person in this condition the regular care of a physician is something like what you just offered your honor then i suppose one could reasonably find that but here there is an absence of evidence a lot permitting the jury to find that there was a regular course of care going forward that would permit something like that the evidence was the doctor said after a series of different questions and she's not under my regular care the doctor also said he wasn't sure what regular care meant but there was no evidence of a forward looking plan that had any structure or any aspect of a requirement to you know see the doctor or get some sort of treatment the policy says the regular care means you visit position as frequently as is medically retired you know that's the definition of regular as required it suggest at least getting some care and here we have the absence of care going forward and so there is a difference between that that that the test is getting the care like that that one normally gets for a condition  that that you have and here it was there were offered testimony wasn't that she was on a plan somewhat to other folks and her condition it was that she had stopped seeing the physician and had no appointment to come back unless she decides she want to go back i mean barker was a specialist right yes and so he's not someone that you would just go to continually so wouldn't when you think that if barker thought she was finished then he would have discharged her as opposed to just keeping her keeping her set up to where she could come back and see him if necessary i see i'm  time and i want answers there's no evidence at the trial suggesting something like i mean there's evidence that he's a specialist isn't there is evidence that he's a specialist i mean based on sort of common experience i'm not sure  the doctors typically formally discharge you instead of saying you can come back if you ever need to so in the absence of any evidence i think it's it is it was improper for a juror to question about your cross appeal and that is with regard to the nd definition of disability the district court clearly relied on that as well as one of two independent reasons for concluding that there is at least a trival issue of fact and whether or not the plaintiff is disabled in your opening brief you did not challenge that now through the hell even the cross appeal didn't really address that you did overseas miller am versus holmes we have said that a number of times you didn't address that until your reply brief why didn't you wave your challenge to the nd rationale of the district court by omission it was a guitar position that the district court misconstrued it wasn't raised at trial either misconstrued that alternative provision which is the partial disability provision for the  initial provision which was the the position then applied the total disability the st definition and so we did not address it for that reason and i think that the the fact that it was not responded to on that point and was not raise trial supports the notion that it was an appropriately decided upon but i certainly take your point thank you counsel and counsel and could you put to thirty  on just real quickly i would like to address some things about the i'm reasonable aspect and the common law bad faith there are no experts required under colorado law for for bad  faith or unreasonable ness expert opinions can be based solely on experience the expert also quoted colorado law as well as colorado case law and most mostly focusing on what a reasonable investigation and that they it's unfair claim settlement refusing to play can play pay claims about conducting a reasonable investigation the dispute here is what is a reasonable investigation there are facts in the motion and in our reply that establish one dollar the description of the job is that it is in dispute two they did not follow their own procedures which were having a specialist in the same area the policy states regular care is defined as you personally visit a physician as frequently as is medically required according to generally accepted medical standards so effectively manage and treat your disabling conditions and you're receiving the most appropriate treatment and care which conforms with generally accepted medical standards but it but if the if in this case there really was no anticipated future medical care i mean isn't she in the same position as any other patient that goes in for you know some type of treatment they do they do everything they can there's no expectation of a future appointment under your theory you know people are under the regular care of a doctor in perpetuity ok no you're us or something in the in the record that says you here by discharge which we don't know well your honor there was dr parker was asked directly it is she no longer under your regular care he said scheduled care yes sir and he says i don't know what regular care means regular care is a term of art he had her under scheduled care which he considered appropriate there's no testimony or evidence in the record showing an opposite medical opinion the defendant's call the doctor they went they actually asked the doctor you saw the doctor  barker said that he follows patients two weeks out of surgery six weeks out three months six months nine months and one year out do you remember seeing this in his testimony it was deposition testimony no where did they ask who which this  denial letter this is that for nine you know never mentions her they had been paying her benefits at this point and the only basis they give for denying her is that she can perform the regular duties of her occupation not that she's under the regular