claim the plane was insured by it was insured planes might have life insurance one certificate in the summary plan description clearly said that the well the in order to determine how much he's supposed to a comparable amount from stock options every year for employment or was this just kind of a one time first of all it wasn't we don't know if it's just from sort of stock options that's what the defendant look at excerpts of record i'm sorry supplemental excerpts of record page one twenty three ever increasing proportion of her salary in the form of stock in stock options ok so that was most of her earnings from her employment was in the form of the package is your commissions bonuses you know for particular success in a particular project or something and stock options you know may or may two you're not really looking at what she earned each month you're looking at like she earned for the whole year she learned commission she did not earn a basic salary every month she was paid by way of commissions independ ninety eight w two that's again that's extra to record one thirty two and dividing it by twelve and that's exactly how you find it and it's not you don't look at any particular month you take the whole mean it depends on whether she exercised the stock option or i mean to appear on her income and you have to exercise the options well i try to bring out to the trial court and if you look at the transcript significantly affect if not determine the outcome in this case you know the review would require the court of course to talk to make a sensually a contractual determination after considering all the not engage in a irrational interpretation either of the plan or of the need for benefit so if there is ambiguity in the plan documents and this is a case where it says if i could find you it certainly isn't my understanding i think the distinction is between what had been said up until this past month and a decision reached in the middle of this past  month to withdraw approval in all cases including cases in which approval had previously been granted up until that time the commissioner was taking the view that because of  religion was unconscionable courage a request for approval would be denied but the glacier had not taken the view that previously granted permission would be revoked and that's the distinction i think that word law is referring to and of course since it happened in the middle of last month there hasn't really been a chance for that that because it is that you know the changing california law it's going to have to be litigated to the extent that change in can what to what extent that change in california law  i think that if i and i don't have a we don't have a plan i don't have a plan for me in this case it seems to be a different kind of dispute in that case as we consider yesterday we were that point the obviously the vote all the governing documents were silent with respect to the issue of whether or not the stock options are factored into the definition of basic monthly earnings and the court is obviously well aware of that that they are right about that if you look at the prior years debbie i'm familiar with what they've said they were submitted during the course of the administrative review process to met life and it and it does appear that that the plan of realized income or profits from the sales pitch my assumption and and i agree with mr fleishman that the record is not completely well developed as to what triggered the placement of the stock options on the w two form it is clear that the amount that we're concerned about here from the w two is stock option income it's not restricted stock it's nothing else because it you can you can look at something like a letter of the record page one forty four and there's a which is next to the disputed amount of income that we're talking about here and it strikes me that if we take the position that the only possible way that an insurer can avoid inclusion of that stock option income as a component of basic monthly earnings is just pacifically excluded from the definition then we really find ourselves on a very very slippery slope where theoretical seems to be the easiest thing to do  some of these employees presumably you know qualify for grants of stock options some may not i don't know but there's lots and lots of types of income that ordinarily wouldn't be considered the kind of thing that would every single policy that the issue but if we do that what else do we have to exclude and if it's not i want to really talk about stock options for the moment well we are but i think the policy we have to examine whether or not a long term disability plan a price the things that the employees are willing to pay and and that the insurance companies willing to underwrite well i agree that that's certainly possible but i would also point out that that did appear to happen in this case and robber particular document page one sixteen was somehow confidential or secret because while the e mail on page one fifteen from someone it robert have to force all of them out like is legal confidential i don't i don't see that the why why don't we apply the noble standard of review here in light of what happened on the benefits and the eligibility determination which apparently not life changed  condition a fairly somebody maybe a lawyer said look at this and said we're going to lose by law just give her the benefit think it over with i don't understand i mean the key thought seems to suggest when you change your position like carrier agrees to pay benefits and subsequently without there being any change in the player's physical condition decides to terminate benefits when there's been no indication that whatever his or her condition was that prompted the pain of venice in the first place is changed it your own doctor irony well that's something that they could have done and after they went out and the surveillance on yes and your honor perhaps the prior and subsequent to the regular case which is priest that may have not been a significant factor after the regular case but before the north decision which which overruled regular treating physicians opinions were entitled to greater weight upon the court reviews that judgment here's here's what you'll see originally judge your feet he said grants the motion for summary judgment as playing offense to the liability issue but if you read down i believe in paragraph four it points out that we that met life and stipulated prior to briefing that plaintiff would be would receive benefits and so that issue was technically moot the only issue that was in play at the time of the underlying judge and the judge in the underlying case was the issue of whether she was entitled the benefits or i'm sorry the amount of her benefits and as to that issue the court found that life had not had an opportunity to perform a result of i so if i were to scour the district court find i wouldn't find kind of what was the motivating factor that allow that life or the profit not life to stipulate well no i think you'd be left to have to make some some sleep some conclusions about that but they're not the same token the record doesn't show that there were any there were any factual changes in her condition no i think the in fact if there was a change then presumably the change would have gone from a determination that she was not disabled to a determination that she was disabled but there were no additional medical records that were supplied that even the basic lack inclusion of the condition that she was alone or alleging constitute or disabling condition of a parent the seemingly remain members of the players well i don't know maybe in the future they may say well we're going to exclude this right i think to this never happens again well certainly i think it changes consists of multiple documents that have to be considered together but that the plain language of the plan clearly provides that any amount of money stated on the gobby two for  must be factored in to her total income and then divided by twelve to get her monthly income for purposes of determining her disability benefits people could conclude that but there might be alternate reasonable explanations but under ninth circuit authority in the country proffer and a rule the court must take a reasonable interpretation favorable to the insurer how exactly do you respond to that i mean what is your argument that there's an overwhelming basis in the documents leading to the conclusion  stock options should be excluded well first of all there are several forms of compensation in the documents that are specifically included in stock options are not one of them second that the second part of your question relates it goes back to the to considered the commissioner of insurance recent actions as such significance is to warrant a vacating of the judgment and remain handing it to the trial court in this case to independently determine whether the discretionary clauses are unconscionable  based on commission now the definition of basic monthly hearing includes ortiz from bonuses and overtime it doesn't include commission and it doesn't include it doesn't say commission and doesn't say stock options but yet they're willing have like asked for her basic monthly earnings and they gave the number of two thousand five hundred forty one dollars and sixty seven cents but it says base basic monthly earnings predeceased excluding overtime and bonus bonuses to or one more thing on the original case there never was a medical review of her condition done by metlife after she did the administrative appeals thing never ever ever had a doctor with you the medical records let alone examiner