has been looking at the second circuit and the halo case and over the second circuit on the whole and by and large took a pretty tough approach to substantial compliance it did say that maybe a more fact finding might be necessary to see if that was the case here what will we do if we were following a low under a well first of all the second circuit said the burden rests with the insurer or the plan administrator they noted that originally when they first received the appeal they had the single record review that they were gone and utilized to deny the claim by june fourth and did nothing with the claim and you know they receive mistake wasn't it inverted i mean if you begin by saying late it's late i understand that but there are there's a range mean there's one way of looking at this record that is maybe about three days later there's another way of looking at this record that it's closer to thirty days late certainly like it either way i don't think there's anything that you can do to manipulate this to make it on time but it would if we're at the three day end and they don't get this out  are not going to import substantial compliance into those a little requirement to reside and in this case the regulation is an ambiguous ninety days is ninety days be one way it might work then they lose the benefit of making their description more fulsome maybe so that a court might be more persuaded that it was well reasoned and not arbitrary and capricious and they just have to stand on whatever they initially said but that was still a discretionary decision to deny the claim initially so i guess i'm not i'm just trying to get you to to help me understand what would be the reviewing so why do we have to review that initial denial  evidence additional evidence going beyond the scope of the initial application and denial and if the plan administrator fails to render a decision within the deadline in fact appeal is deemed deny things on that supplementary record and that's what comes to the court and the question of the appropriate standard of review doesn't trace back to the original denial but we're still reviewing the appeal record just on the basis  court in this case we filed the appeal on april twenty fourth they received that single record review on june fourth and nothing further happened until august twenty eighth we found the last to august nineteenth and at that point the claim is deemed exhausted and the federal judiciary that up at that point reviewed the claim to know a clear there was no ongoing good thing discussions during the appeal process so if we were to look at the record we would not find a back and forth going on between mr fessenden blinds no your honor there were two form over a five hundred page appeal to reliance to enter consisting of medical records voluminous medical records showing he had suffered from the symptoms of those conditions going way back to two thousand and eight that's what you had to know and that's the other challenge in this case and i don't know from the mindset standpoint whether any time in recent time matters that was hard for them to go back and reconstruct it was hard for you perhaps to go back and reconstruct what his condition was during the first three months of two thousand and eight well remember you're on our reliance tinder did find he was disabled during that time period they  find when he applied for short term disability benefits they he was disabled as a deanery second two thousand and eight and approved him first short term disability also the centers for disease control  ninety percent of those individuals who suffer from chronic fatigue go are undiagnosed because of the lack of education in the medical community and the lack of testing that actually come firms this condition and  haven't brought forth any in the case and that they would have done anything differently then one thing didn't this case they got already the medical records all of them and then they had to record reviewers review the crime there's been no indication they would have done anything differently or take any different force then what they did in this case well maybe you can take a break and we'll hear from you on the bottom and winds down thank ari sixteen ninety six an appeal there after was filed by mr fast and challenging that determination asking for benefits after march seventeenth and my client and i argued that in our appellate brief again could not find any medical evidence at that point supporting disability under the short term plan and or call the planet ministry that given the fact that the short term disability plans were self funded and not fully funded by an insurance policy having said that going back to the crux of the case the late determination my first point is my client recognizes that ninety days is what the regulations  also whoever believes that there is tolling which allows us based on the department of labor standards up to forty five additional days documentation is requested not received me tell you what my problem is here  kindly call it you know a large and complicated statute and lots of people have to comply with their plan administrator is there insurance companies they're individuals their employers and so our reason for taking a strict compliance approach whether it's how do you think beneficiary here whether it's how many days are there is that it would actually become administratively even more nightmarish than it is if we had to sit down every time and say well you know they were three days late but maybe that's ok other people were thirty days later forty five and turning each one of these into a touchy feelie you know it was too late to be useful as it is standard review just got a standard americans ok to address the first point i understand that approach but i don't believe that that's the law in the circuit i don't believe in any circuit really strict compliance with the department of labor regulations is not with the circuit follow they followed they follow either a substantial compliance or friend or they follow with a new approach which can be very low approach leave prejudicial slash but i'm not sure you could survive under halo because you've got under show that your failure was both inadvertent and harmless and i don't think you can do that much harder cannot do that frankly your honor unit verdant part you tolling would generally apply whenever there is information that is needed that's being requested that it's not received because you're a regulator which you regulatory support for that that is directly in the regulations you're honest so there really are no deadlines then you can wait as long as you want to while you're collecting information is that it now the regulations set out to make tolling starts when the request for information is being made totally totally incomplete when the information received and then the deadline records my client would not document the a r for the claims examiner doing his job which is sitting down and working through the medical history mr fassbender went out on work out of work on january second t the initial determination so there's a real problem with filing your statement after stupid filing you could tailor it anywhere you wanted to if you can just finish out the record and after trial what are you suggesting if you can wait complete the administrative review and still get the benefit of arbitrary and capricious review but you file your medical opinions which not with the regulations require it require specialist and that my client went beyond that they obtained a vendor who communicated with third party independent doctors that have no connection to my client something that the accepted this claim it was submitted in twenty fourteen years after this gentleman went out of work at which point my kind could have tonight the claim under indianness notice prejudice it could have piece of evidence which for whatever reason was hung up somewhere so everybody got stopped at that point and say ok well we know now we're not doing this to no avail based on an initial decision and the record stands but now we're going to stop everything and start over again with the letter that  i don't think it changes anything i mean especially not if it's not a decision to overturn if it's a decision to overturn the law of course the lawsuit would be done because the benefits would be awarded and there's nothing else to seek if it's a decision to uphold there's twenty nine it goes from no input from the insurer because the suit was filed before the insurer got around to finishing the appeal to all of a sudden a day twenty nine another enormous opinion from somebody standard forms that tolling under the regulations i don't mean that generic letter that says to the extent that additional information is needed well we will tall i think i'm talking about whether there was a specific notice to the plaint june and then on august twenty eighth when they were notified that the lawsuit that's the same day it shows that they reaffirmed denial of the claim the only instances where the court has applied