Okay, we'll call the case again. The end of the verse is a good, good, good life assurance company of Boston. Smith. Thank you, Your Honours. May I please the court? My name is Patricia Smith. With me, a council table is my colleague Edward Grove. We represent the appellant in this matter in the Breeding Life Assurance Company. We had here on the record that Mr. Mormal, see here? Mr. Mormal. Okay, you're listed on the wrong side of our sheet here. You have one minute of Mr. Rizzo's time. You have one minute of somebody's time. Nobody wants to... Nobody's on it up to you. Since this is the last case, I'm sure the council is going to be a lot briefer than the prior cases. We'll give you one minute of the court's time
. How about that? I think we both actually offered him one minute. Okay. You may proceed. Thank you. I'd like to reserve four minutes of every bottle time, please. All right. Your Honours, this case involves a claim by the plaintiff below Mr. Gambino. For short-term disability benefits and long-term disability benefits, under his former employers, Rizzo government benefits plans. Liberty's life ensured and administered claims and made final benefit determinations with respect to the short-term disability plan. Long-term disability benefits, however, were self-funded through Mr. Gambino's former employer, which made all final benefit decisions. With regard to the long-term plan, Liberty merely provided certain administrative claim services pursuant to a contractual agreement between Liberty and the former employer. Now, Mr. Gambino ceased employment on March 9, 2001, and applied for and was denied benefits by Liberty under the short-term disability plan. He did exhaust his administrative remedies under that plan. Mr. Gambino never has applied for long-term disability benefits pursuant to that plan. The court below conducted a two-day bench trial on this arisen matter
. And at the conclusion, awarded Mr. Gambino short-term disability benefits, finding that Liberty had acted arbitrarily and capriciously in denying him those benefits. In making that ruling, did the court below subject Liberty to a heightened, arbitrary, and capricious standard, a less deferential standard than an ordinary arbitrary and capricious standard or not? It did not seem to be doing back your honor, but the court articulated the fact that under the Pinto analysis, that the arbitrary and capricious standard applies where you have the same entity both paying the benefits and analyzing benefit claims. I agree. It looks like the district court said, even under the tightest review you guys lose. That's what it looks like, I think. Would you agree that the district court said, even under arbitrary and capricious, the most deferential standard I can give, Liberty, you come up short here. I think that's correct. I think the court did apply the arbitrary and capricious standard. As a matter of fact, with regard to at least one aspect of the case, the court came right out and said that Liberty acted arbitrarily. My question is, does the court below's decision not to use a less deferential standard, a heightened arbitrary and capricious standard? Does that bind? Is this court free under view to make its own decision about just how deferential an arbitrary and capricious review ought to be here? Well, there was no... The court should be looking at the administrative record, which is in the appendix at D3 through D30. And that is what the court below should also have been doing. I think that the question is, is there anything in that record that would demonstrate anything that any standard other than an arbitrary and capricious standard as being appropriate? And the answer to that I think is no. Let me try to..
. I apologize for more time because I may not ask this clue, but I was under the impression that if a company like Liberty is both the administrator and the pay-or, that that is a fact that the court can take into account and decide, well, I'm not giving you a full-scale arbitrary and capricious, to get a little less than that in the way of that sentence. The district court below decided, apparently, not to take that approach. So my question is, just as a matter of law, are we free to say, look, there were two hats here, when we look at this record, we're not giving it full-scale arbitrary and capricious review and it's not the last one. Or are we bound by what the district court do? I think, you know, the district court is supposed to look at these cases like an appellate court. And given that, I do think that this panel is free to make its determination on that based upon the administrative record. And the courts often articulate in the situation that they will apply a standard of review that is a modicum removed from the straight arbitrary and capricious standard. Now, I think you would, yes, be free to do that. All right. I think you know, had in fact never filed such a claim and that has a time in which to do so had a last in October of 2002. Liberty has appealed both of those decisions and I'd like first to address the court's decision with regard to the long-term disability claim. Why not to, I'm not, you've only, you only have about four minutes remaining. Why don't you address the short-term disability claim first? And let me just ask this question too to get you started. You didn't, apparently, you did not request any information in reviewing the claim as to Mr. Dan Bino's responsibilities at ICON. And I guess my question is, could you have really made an informed decision regarding his disability without this information? And could we look at that since we're reviewing the administrative record as a kind of procedural irregularity that could make your decision arbitrary and capricious? I think the answer to that is no, sir. I think you're raising the Quinn decision issue here. If a planned administrator is faced with some uncertainty as to whether an individual is able or unable to perform some of his essential job duties, then it's certainly incumbent upon the administrator to attempt to ascertain what those job duties are. But here, Liberty never reached that stage of analysis because the only information provided to Liberty from his psychiatric health care providers did not indicate that he could not work. If you review the records of Dr
. Ying Chang and the records of Marion Robinson, they're quite consistent in that regard. Is that the standard note? Does he have to prove he is absolutely... Let me back up and ask you this, Frank. Isn't the standard imposed on Mr. Can Bino that he show that after that exclusion period, that two-week exclusion period, that he's regularly attending physician or regularly seeing a physician, and it can't work. Is that... Am I wrong about that? He has to demonstrate that during the elimination period and going forward in time, that he is unable to perform his duties, in other words, that he's disabled from performing the duties, and that he's under the regular attendance of a physician. Okay, and that takes us to what Judge Fish was asking, I guess that's why I'm trying to ask it and not be very artful. If you don't know what his duties are because you never ask, how can you make a decision that's anything other than arbitrary and capricious and making the statement that he hasn't shown he can't perform his duties? Because it was incumbent upon him to proper some medical evidence that he was unable to work. He never did that. If we had received information from Dr. Ying Chang, for example, that said he can... he's restricted from lifting 30 pounds
. I thought Dr. Arlock had said he can't come back to work. You shouldn't come back to work. Am I mistaken about that? I would need to address Dr. Arnook a bit differently. Dr. Arnook submitted sort of a one-page form saying he's not clear to return to work. Isn't that the same medical evidence? It's not sufficient, Your Honor. Dr. Arnook has agreed that he was not qualified to opine on Mr. Gambino's mental health disability status. He is an internist. Despite liberties, repeated requests, he'd never provided anything in the way of medical history, office notes, a treatment plan, anything. Evidently, Mr. Gambino went to Dr. Arnook on March the ninth it looks like, although there's some discrepancy there. And asked Dr. Arnook who was his treating internist for diabetes to fill out a form. Dr
. Arnook, and you'll see that his testimony reflected in our brief, he did so because he felt that he should fill out the form. But he certainly testified a trial that he was not qualified to diagnose or treat Mr. Gambino's condition, alleged condition, and in fact he never did so. The two... Wouldn't Debbie are you inviting us to look outside the record to the trial testimony? No, I'm really... Thanks to which you have so roundly criticized your plan. That is a double-lipsoorth. And no, I'm not asking you to do that, but I can tell you that with mental health issues and with any disability issue, the administrator does look to medical testimony. So, this is a double testimony from properly credentialed healthcare providers. And in this instance, they were looking for medical evidence from properly credentialed mental healthcare providers, which here was Dr. Yin Chen and also Mary and Robinson, neither of whom stated that Mr. Gambino was unable to work. Both of whom said that he should take medication, both of whom said he should attend weekly treatment sessions, and he did not. All right, Mr. Kniff, we'll have you back on our bottle
. Thank you. Mr. Rizzo? Yes, sir. Please support for the afternoon, your hours. My name is Paul Rizzo. I'm representing the athlete, Anthony Gambino. Mr. Rizzo, did the district court go outside the administrative record and determining this case? Not in its ultimate determination, your honor. In its ultimate determination, the district court looked at what was in the administrative record before the administrator at the time of denial. The district court cited Dr. Arnox certification. In fact, the district court may elit a list of what was before page 15 of the decision. And talk to the side and sworn statement of Dr. Arnox as of March 9, 2001. The records in opinion of Dr. Yin Chen, the treating psychiatrist, and the records in treating therapists of Mary and Robinson. So when the court made its decision as to whether there was an arbitrary decision, the court relied upon and looked at only what was before the district administrator in making that determination. The statement just made by Ms. Smith that neither Ms
. Robinson nor Dr. Yin Chen said that he was disabled. Mr. Gambino is wrong. Ms. Robinson did not make that statement because Ms. Robinson is a mental health provider or therapist. She's not a doctor making determination. She wasn't asked the question. But if you look at it's at a 155 in the appendix, it's Ms. Yin Chen's letter to liberty in which she is answering about five questions that Dr. Arnox had not answered on the form supplied by liberty. And she indicates that he was not able to work, although she does indicate at the date of 327-01. The reason she sites that day is it's the day he's evaluating at St. Clair facility from which she works from. So that's the first contact. St. Clair is anyone from St. Clair's house? Yes, I ask it
. Didn't Ms. Liberty below specifically object at the time of the non-jury trial to the taking of testimony as opposed to the review of the administrative record? Yes, sir. Okay. And didn't the court notwithstanding those objections go on and take testimony some of which went beyond the clearly went beyond administrative record? Yes, sir. And my review of the administrative, from my review of the court's opinion, shows at least perhaps six or eight different points that were part of the court's findings that came from testimony as opposed to the administrative record. It's self-musk glaring of which was the indication of Mr. Gambino's demeanor trial. Judge, I agree with that. I submit that the record was so overwhelming that the court, I just surmise made the observation of it. The problem you had, Your Honor, is at the point of the outset of the trial when Liberty is making these objections is we've never determined, we've never had Liberty say in the litigation with any specificity. This is why Mr. Gambino was denied. This became a problem throughout the case. It's not until we're almost through the case that Judge Hockford finally submit lost patients and said, what's the reason? And the reason for taking a lot of testimony at that point is we don't know. We know through the submission of the letters to Mr. Gambino that they asked for objective medical evidence of this psychological condition around the time he left work and said, we didn't have that, that's why you're denied. But through some re-judgment, motion to reconsider, trial brief and limiting motions, we have discussions of the lack of getting information in a timely manner, the vacation, the golf thing. We have other indignation questions in terms of whether he's really disabled and there's no definition of what would you rely upon. So at the time we start trying, at that point we're taking testimony because we need certain information that's not there
. For one thing, I think Mr. Gambino needs to testify so what his job duties are, because that is not part of the record. And it was not in there. And how is the court going to evaluate what's going on? Why does, why does it, is there, why is testimony needed as Mr. Gambino's job duties to make a determination as to whether or not Liberty's determination of his disability? Based on the record today had, it was correct or whether it was arbitrary and capricious. My determination at that point, you're on, how does the court, anywhere in Liberty, determine whether Mr. Gambino's psychological condition prevented him from doing his job unless the court knows what that job is? Isn't that good for you? I mean, I guess some will puzzle like, I can take a judge's Fisher as I shouldn't be for him, but by introducing that, well. Did you just have a legal argument that it's arbitrary and capricious to make a determination without evidence in the record as opposed to putting evidence in the record? That was part of the argument, yes sir. Yes sir, but I felt and Judge Hawker agreed with me with the record before it's not knowing what Liberty is basing as an eye really on. We need to go a little further, I will still understand that at that point, I have a claim against Dr. Rannock. Which incella is not in this appeal at this judgmental rate? That's correct. He's out of the mix. That's correct. But at that point, I'm again not certain if it appears from the letters of Liberty that they are denying the benefits because Dr. Rannock never provided that off the snow. So that's my claim against Dr. Rannock. Testimony I feel is necessary as to Dr. Rannock, I certainly not limited to Dr. Rannock. But again, I just want to go back to my only answer, Judge Fisher, your question, but again pointing out that, yes, there was a different testimony taken because, quite frankly, I think the record and even the decision on summary judgment makes it clear that we're not sure what was going on with Liberty. But by the time that Liberty says, it was because you didn't establish disability in the elimination period, Judge Hawker disregarded what she makes her decision, what was there and says, look, you have Dr. Rannock's certified statement he came in on March 9th, that he's suffering from anxiety and depression and I took him out of work and he cannot work. I refer him for psychiatric evaluation. You have a note that you knew he was evaluated, St. Clair's on March 27th. You have the opinion of Dr. Yunchan that yes, he was unable to work. You have this nurse McGovern whose qualifications we don't even know, but one point I emphasized the lack of qualifications, one point I think either Judge Hawker or Ryan emphasized. Was the nurse McGovern never recommended a discontinued or disqualified, what she recommended was contact with the primary care physician that asked some more questions. Liberty didn't even follow the recommendations of their reviewing nurse. So Liberty clearly had all this information before it and disregarded the opinions of treating physicians without having a review of its own and it does have that burden on the last. What do you make of the argument made by Liberty that the clean here should have failed because he didn't regularly attend the appointments he had. There wasn't regular treatment by a physician. There was regular treatment. The problem is how do you define regular treatment. Now, the only reason answer is what we have the discretion to interpret meaning
. Rannock, I certainly not limited to Dr. Rannock. But again, I just want to go back to my only answer, Judge Fisher, your question, but again pointing out that, yes, there was a different testimony taken because, quite frankly, I think the record and even the decision on summary judgment makes it clear that we're not sure what was going on with Liberty. But by the time that Liberty says, it was because you didn't establish disability in the elimination period, Judge Hawker disregarded what she makes her decision, what was there and says, look, you have Dr. Rannock's certified statement he came in on March 9th, that he's suffering from anxiety and depression and I took him out of work and he cannot work. I refer him for psychiatric evaluation. You have a note that you knew he was evaluated, St. Clair's on March 27th. You have the opinion of Dr. Yunchan that yes, he was unable to work. You have this nurse McGovern whose qualifications we don't even know, but one point I emphasized the lack of qualifications, one point I think either Judge Hawker or Ryan emphasized. Was the nurse McGovern never recommended a discontinued or disqualified, what she recommended was contact with the primary care physician that asked some more questions. Liberty didn't even follow the recommendations of their reviewing nurse. So Liberty clearly had all this information before it and disregarded the opinions of treating physicians without having a review of its own and it does have that burden on the last. What do you make of the argument made by Liberty that the clean here should have failed because he didn't regularly attend the appointments he had. There wasn't regular treatment by a physician. There was regular treatment. The problem is how do you define regular treatment. Now, the only reason answer is what we have the discretion to interpret meaning. But the problem again goes to it did not set forth to Judge Hawker when she asked the direct question. We're denying because you didn't settle for regular attendance. They said you would deny because you didn't establish this ability within that 14-day period. In fact, as he did establish, you went to Dr. Yunchan. The argument by Liberty that they didn't make in a court blow. Absolutely. And by the time they denied the claim in August of 2001, he was regularly seeing the physicians. Ms. Robinson and Dr. Yunchan had been at that point for a period of months. What the argument was in terms of regularly seeing physician is that in the beginning in establishing it, he was not regularly seeing the physician. But I don't think you can look at that point in a vacuum or in the Astra. But don't you have to look at that point in light of the terms of the policy. And if he had not been seeing a physician regularly in March, maybe he should have reapplied for disability at a later date when he was regularly seeing a physician. Because the plan calls for, does it not regularly seeing a physician? And the plan calls for the plaintiff supplying those documents, the proof of that, to the insurer. Two points to Dr. Yunchan. One, you say he couldn't reapply
. But the problem again goes to it did not set forth to Judge Hawker when she asked the direct question. We're denying because you didn't settle for regular attendance. They said you would deny because you didn't establish this ability within that 14-day period. In fact, as he did establish, you went to Dr. Yunchan. The argument by Liberty that they didn't make in a court blow. Absolutely. And by the time they denied the claim in August of 2001, he was regularly seeing the physicians. Ms. Robinson and Dr. Yunchan had been at that point for a period of months. What the argument was in terms of regularly seeing physician is that in the beginning in establishing it, he was not regularly seeing the physician. But I don't think you can look at that point in a vacuum or in the Astra. But don't you have to look at that point in light of the terms of the policy. And if he had not been seeing a physician regularly in March, maybe he should have reapplied for disability at a later date when he was regularly seeing a physician. Because the plan calls for, does it not regularly seeing a physician? And the plan calls for the plaintiff supplying those documents, the proof of that, to the insurer. Two points to Dr. Yunchan. One, you say he couldn't reapply. But the fact is, when the denial is first made and he makes his initial appeal, he is regularly seeing a physician at that point. And they have that information at that point. So I don't think a re-application would be necessary. As to the issue of, is it necessary for the person who doesn't have to qualify, if the time he applied, he wasn't qualified. Because he was not regularly seeing a physician. Well, I disagree with that conclusion. That's what the plan calls for. Well, the plan says, if applicable, in your notice and proof, you must establish cause and applicable, whether you can work if applicable, et cetera. And they want notice, I mean, some, they want proof of the disability and the regular treatment by physician. I submit again that at the time it's denied he did establish regular treatment. And not within the qualifying period. Not within the two weeks, Judge. Yeah. But he did see a physician within those two weeks. He saw Dr. Arnook. That's where he went. As soon as he leaves work or he's out of work, he does see Dr. Arnook
. But the fact is, when the denial is first made and he makes his initial appeal, he is regularly seeing a physician at that point. And they have that information at that point. So I don't think a re-application would be necessary. As to the issue of, is it necessary for the person who doesn't have to qualify, if the time he applied, he wasn't qualified. Because he was not regularly seeing a physician. Well, I disagree with that conclusion. That's what the plan calls for. Well, the plan says, if applicable, in your notice and proof, you must establish cause and applicable, whether you can work if applicable, et cetera. And they want notice, I mean, some, they want proof of the disability and the regular treatment by physician. I submit again that at the time it's denied he did establish regular treatment. And not within the qualifying period. Not within the two weeks, Judge. Yeah. But he did see a physician within those two weeks. He saw Dr. Arnook. That's where he went. As soon as he leaves work or he's out of work, he does see Dr. Arnook. Dr. Arnook refers him for psychiatric treatment. It takes him 17 days to establish instead of 14 days for that initial intake. And what I think is important to note, Your Honor, is that the nature of the condition itself, you can't look at it just in a vacuum. He's saying, I cannot function. I have to go around. He has people with him who can help in function, which is what his wife was assisting him to do. But by the nature of the condition, if he starts a immediate treatment, he's going every week, he's on time, et cetera, then the claim's going to be, well, obviously you can function. So, no. Well, that didn't happen. So that's that's that's in the abstract. Can I ask you a question, Mel? If you if you're there's more that you need to say to judge on. Okay. No. Long term disability. Yes sir. He doesn't make any application whatsoever. No. How can it be wrong for all of you to say no to something he never asked for? And the party who should who would provide that long term disability isn't even a party to this litigation
. Dr. Arnook refers him for psychiatric treatment. It takes him 17 days to establish instead of 14 days for that initial intake. And what I think is important to note, Your Honor, is that the nature of the condition itself, you can't look at it just in a vacuum. He's saying, I cannot function. I have to go around. He has people with him who can help in function, which is what his wife was assisting him to do. But by the nature of the condition, if he starts a immediate treatment, he's going every week, he's on time, et cetera, then the claim's going to be, well, obviously you can function. So, no. Well, that didn't happen. So that's that's that's in the abstract. Can I ask you a question, Mel? If you if you're there's more that you need to say to judge on. Okay. No. Long term disability. Yes sir. He doesn't make any application whatsoever. No. How can it be wrong for all of you to say no to something he never asked for? And the party who should who would provide that long term disability isn't even a party to this litigation. Well, I con did not do anything wrong at this point that you could have really pointed to icon. That was a mistake early on that I started to make based on some of the advisements, but really at that point, how could I fall a icon? If he hasn't made application, liberty hasn't make it, they do make the initial decision. And if that hasn't happened, I don't think I can fall icon at that point. That's what I'm trying to get at. How is it a breach of their fiduciary role to say no to something that was never asked for? Because they led him to believe again, this is the futility argument. How is Mr. Gambino? Mrs. Gambino or anyone else supposed to know there is any point or even a possibility of applying for long term benefits? First of all, they don't know icons role we should be liberty. Second, no matter what he has done over the course of six months, liberty has said not good enough, not good enough, not good enough. At that point, how is he going to make an application for long term benefits? If he does know, I don't get short term benefits, I don't get long term benefits. For liberty to suggest we had eight people look at this and deny him under the short term, maybe the ninth person would have granted it to him, or maybe icon would have overruled us. Well, all we're asking at this point, all judge, Hawkberg is don't you just give us that opportunity. Let us take a look at this. That's all she determined is all right, I'll read you man, look at it, give him the opportunity at this point. But in terms of the late person with psychological disability with help or not help, so look at the conduct here. I just want to make two quick points, I don't have time to give to Mr. Moore-Miles. Now, Arissa does require some notice with specificity of why you're denying him. And to simply send him letters saying, no objective medical evidence at the time you left employment does not give him with any specificity of what they're missing, doesn't give him anything about regular attendance to the physician, et cetera
. Well, I con did not do anything wrong at this point that you could have really pointed to icon. That was a mistake early on that I started to make based on some of the advisements, but really at that point, how could I fall a icon? If he hasn't made application, liberty hasn't make it, they do make the initial decision. And if that hasn't happened, I don't think I can fall icon at that point. That's what I'm trying to get at. How is it a breach of their fiduciary role to say no to something that was never asked for? Because they led him to believe again, this is the futility argument. How is Mr. Gambino? Mrs. Gambino or anyone else supposed to know there is any point or even a possibility of applying for long term benefits? First of all, they don't know icons role we should be liberty. Second, no matter what he has done over the course of six months, liberty has said not good enough, not good enough, not good enough. At that point, how is he going to make an application for long term benefits? If he does know, I don't get short term benefits, I don't get long term benefits. For liberty to suggest we had eight people look at this and deny him under the short term, maybe the ninth person would have granted it to him, or maybe icon would have overruled us. Well, all we're asking at this point, all judge, Hawkberg is don't you just give us that opportunity. Let us take a look at this. That's all she determined is all right, I'll read you man, look at it, give him the opportunity at this point. But in terms of the late person with psychological disability with help or not help, so look at the conduct here. I just want to make two quick points, I don't have time to give to Mr. Moore-Miles. Now, Arissa does require some notice with specificity of why you're denying him. And to simply send him letters saying, no objective medical evidence at the time you left employment does not give him with any specificity of what they're missing, doesn't give him anything about regular attendance to the physician, et cetera. And the second quick point is the defense council has cited twice in their brief had in the reply, the steel versus Boeing case and district court case, which I believe has recently been reversed. And I would look at that and say it's very similar. I believe Judge Fisher sat on that panel where you had a demand looking for diagnostic test of a condition, you can't prove diagnostically. And I believe that's part of the frustration that Mr. Gambino had here is how is he objectively proving a psychological condition? Thank you Mr. Resonant. Thank you. Mr. Moral. The district court found for your client and there was no appeal. What do you want to get? We weren't made part of the appeal. They didn't present an argument in any of their briefs with regard to my clients. You were a man of appeal in the caption. Correct. Yes, yes, yes, your honor. So my only point of standing here was to make sure I clarify with the court is just clarified that nobody is seeking an appeal. It's Dr. Rannock. Thank you
. And the second quick point is the defense council has cited twice in their brief had in the reply, the steel versus Boeing case and district court case, which I believe has recently been reversed. And I would look at that and say it's very similar. I believe Judge Fisher sat on that panel where you had a demand looking for diagnostic test of a condition, you can't prove diagnostically. And I believe that's part of the frustration that Mr. Gambino had here is how is he objectively proving a psychological condition? Thank you Mr. Resonant. Thank you. Mr. Moral. The district court found for your client and there was no appeal. What do you want to get? We weren't made part of the appeal. They didn't present an argument in any of their briefs with regard to my clients. You were a man of appeal in the caption. Correct. Yes, yes, yes, your honor. So my only point of standing here was to make sure I clarify with the court is just clarified that nobody is seeking an appeal. It's Dr. Rannock. Thank you. Thank you. Ms. Smith. Yes, just briefly a few points on rebuttal. I want you to touch the long term because you wanted to do that nice shift to get it was raised. All right, on the futility doctrine. All right, the only exception, the only recognized exception, which would allow a plan participant to proceed on a complaint in court without first-hand. So having made and exhausted a claim through the administrative process is through the well recognized futility doctrine in the third circuit that is articulated in the arrow case. And it requires the plaintiff to show a clear and positive showing, to demonstrate a clear and positive showing of futility. Now, here, the plaintiff really has not articulated any basis for application of the futility doctrine. What he basically is saying is that he assumed, and he's always taken a position that he assumed to based upon, advised that his wife had given him that if you don't receive short term benefits, you are not going to receive long term benefits. The cases that we've cited in the brief are quite clear that an assumption like that is just not sufficient to overcome the heavy hurdle set out in Harrah. Now, by contrast, the undisputed evidence shows that Mr. Gambino might well have prevailed on a claim for long term benefits that it would not have been futile at all. The claims have different, the plans have different elimination periods. The short term plan has a very tight window of opportunity, so to speak. It is a two-week window. The long term plan has a six-month window. It's much different
. Thank you. Ms. Smith. Yes, just briefly a few points on rebuttal. I want you to touch the long term because you wanted to do that nice shift to get it was raised. All right, on the futility doctrine. All right, the only exception, the only recognized exception, which would allow a plan participant to proceed on a complaint in court without first-hand. So having made and exhausted a claim through the administrative process is through the well recognized futility doctrine in the third circuit that is articulated in the arrow case. And it requires the plaintiff to show a clear and positive showing, to demonstrate a clear and positive showing of futility. Now, here, the plaintiff really has not articulated any basis for application of the futility doctrine. What he basically is saying is that he assumed, and he's always taken a position that he assumed to based upon, advised that his wife had given him that if you don't receive short term benefits, you are not going to receive long term benefits. The cases that we've cited in the brief are quite clear that an assumption like that is just not sufficient to overcome the heavy hurdle set out in Harrah. Now, by contrast, the undisputed evidence shows that Mr. Gambino might well have prevailed on a claim for long term benefits that it would not have been futile at all. The claims have different, the plans have different elimination periods. The short term plan has a very tight window of opportunity, so to speak. It is a two-week window. The long term plan has a six-month window. It's much different. Secondly, the plans are handled by different claims administrators. Liberty's short term disability unit handled, the short term administrative process, a completely different unit would have looked at any long term claim that Mr. Gambino might have made. Well, the plans. Mr. Gambino is saying, I had psychological problems. I was not in a position to understand what this was all about or do anything. Is there a responsibility then on the plan administrator to make sure that Mr. Gambino understands what might be available to her? Mr. Gambino has never claimed that he didn't understand that he had a right to file a long-term disability claim. His position simply is that he thought that it would not have changed the outcome of the decision. And under Harrah, that is simply not enough. Let me ask a couple of questions about this regular attendance with the physician. The elimination period for the short term is two weeks, right? Correct. So how often in two weeks do you have to see a doctor to be deemed to regularly be seen in position? There's no specific number of occasions that one has to be seen, but Harriet Michael, the appeal review specialist who testified at trial, advised that it has to do with the participants adherence to whatever treatment is specified. So if he's supposed to go once a week, then that's regular attendance. If he's not supposed to come again for six months, then that's regular attendance. So if he's referred for psychiatric care within the elimination period, and he, in fact, goes for psychiatric care, but it takes him more than two weeks by a couple days to get there. Is that not regular? Well, the hard answer to that is that they need to show attendance during the two week period
. Secondly, the plans are handled by different claims administrators. Liberty's short term disability unit handled, the short term administrative process, a completely different unit would have looked at any long term claim that Mr. Gambino might have made. Well, the plans. Mr. Gambino is saying, I had psychological problems. I was not in a position to understand what this was all about or do anything. Is there a responsibility then on the plan administrator to make sure that Mr. Gambino understands what might be available to her? Mr. Gambino has never claimed that he didn't understand that he had a right to file a long-term disability claim. His position simply is that he thought that it would not have changed the outcome of the decision. And under Harrah, that is simply not enough. Let me ask a couple of questions about this regular attendance with the physician. The elimination period for the short term is two weeks, right? Correct. So how often in two weeks do you have to see a doctor to be deemed to regularly be seen in position? There's no specific number of occasions that one has to be seen, but Harriet Michael, the appeal review specialist who testified at trial, advised that it has to do with the participants adherence to whatever treatment is specified. So if he's supposed to go once a week, then that's regular attendance. If he's not supposed to come again for six months, then that's regular attendance. So if he's referred for psychiatric care within the elimination period, and he, in fact, goes for psychiatric care, but it takes him more than two weeks by a couple days to get there. Is that not regular? Well, the hard answer to that is that they need to show attendance during the two week period. Now, as a practical matter, would the administrator have been more flexible if it had been a close in time proximity? Perhaps we don't know that. But Mr. Gambino did not give to see any mental health care provider until a month after he stopped working and two weeks after the close of the elimination period. He did not see her again for six weeks because he left for a vacation and then was a no show. He just did not establish regular attendance. Thank you, Ms. Messos. Could I make just one other point on the futility? I just wanted to make sure that the court understands that under the long term plan, the final decision maker on benefit is not liberty. Thank you. Thank you. Thank you. I want to thank Council for their help for arguments and we'll take the matter under advisement.
Okay, we'll call the case again. The end of the verse is a good, good, good life assurance company of Boston. Smith. Thank you, Your Honours. May I please the court? My name is Patricia Smith. With me, a council table is my colleague Edward Grove. We represent the appellant in this matter in the Breeding Life Assurance Company. We had here on the record that Mr. Mormal, see here? Mr. Mormal. Okay, you're listed on the wrong side of our sheet here. You have one minute of Mr. Rizzo's time. You have one minute of somebody's time. Nobody wants to... Nobody's on it up to you. Since this is the last case, I'm sure the council is going to be a lot briefer than the prior cases. We'll give you one minute of the court's time. How about that? I think we both actually offered him one minute. Okay. You may proceed. Thank you. I'd like to reserve four minutes of every bottle time, please. All right. Your Honours, this case involves a claim by the plaintiff below Mr. Gambino. For short-term disability benefits and long-term disability benefits, under his former employers, Rizzo government benefits plans. Liberty's life ensured and administered claims and made final benefit determinations with respect to the short-term disability plan. Long-term disability benefits, however, were self-funded through Mr. Gambino's former employer, which made all final benefit decisions. With regard to the long-term plan, Liberty merely provided certain administrative claim services pursuant to a contractual agreement between Liberty and the former employer. Now, Mr. Gambino ceased employment on March 9, 2001, and applied for and was denied benefits by Liberty under the short-term disability plan. He did exhaust his administrative remedies under that plan. Mr. Gambino never has applied for long-term disability benefits pursuant to that plan. The court below conducted a two-day bench trial on this arisen matter. And at the conclusion, awarded Mr. Gambino short-term disability benefits, finding that Liberty had acted arbitrarily and capriciously in denying him those benefits. In making that ruling, did the court below subject Liberty to a heightened, arbitrary, and capricious standard, a less deferential standard than an ordinary arbitrary and capricious standard or not? It did not seem to be doing back your honor, but the court articulated the fact that under the Pinto analysis, that the arbitrary and capricious standard applies where you have the same entity both paying the benefits and analyzing benefit claims. I agree. It looks like the district court said, even under the tightest review you guys lose. That's what it looks like, I think. Would you agree that the district court said, even under arbitrary and capricious, the most deferential standard I can give, Liberty, you come up short here. I think that's correct. I think the court did apply the arbitrary and capricious standard. As a matter of fact, with regard to at least one aspect of the case, the court came right out and said that Liberty acted arbitrarily. My question is, does the court below's decision not to use a less deferential standard, a heightened arbitrary and capricious standard? Does that bind? Is this court free under view to make its own decision about just how deferential an arbitrary and capricious review ought to be here? Well, there was no... The court should be looking at the administrative record, which is in the appendix at D3 through D30. And that is what the court below should also have been doing. I think that the question is, is there anything in that record that would demonstrate anything that any standard other than an arbitrary and capricious standard as being appropriate? And the answer to that I think is no. Let me try to... I apologize for more time because I may not ask this clue, but I was under the impression that if a company like Liberty is both the administrator and the pay-or, that that is a fact that the court can take into account and decide, well, I'm not giving you a full-scale arbitrary and capricious, to get a little less than that in the way of that sentence. The district court below decided, apparently, not to take that approach. So my question is, just as a matter of law, are we free to say, look, there were two hats here, when we look at this record, we're not giving it full-scale arbitrary and capricious review and it's not the last one. Or are we bound by what the district court do? I think, you know, the district court is supposed to look at these cases like an appellate court. And given that, I do think that this panel is free to make its determination on that based upon the administrative record. And the courts often articulate in the situation that they will apply a standard of review that is a modicum removed from the straight arbitrary and capricious standard. Now, I think you would, yes, be free to do that. All right. I think you know, had in fact never filed such a claim and that has a time in which to do so had a last in October of 2002. Liberty has appealed both of those decisions and I'd like first to address the court's decision with regard to the long-term disability claim. Why not to, I'm not, you've only, you only have about four minutes remaining. Why don't you address the short-term disability claim first? And let me just ask this question too to get you started. You didn't, apparently, you did not request any information in reviewing the claim as to Mr. Dan Bino's responsibilities at ICON. And I guess my question is, could you have really made an informed decision regarding his disability without this information? And could we look at that since we're reviewing the administrative record as a kind of procedural irregularity that could make your decision arbitrary and capricious? I think the answer to that is no, sir. I think you're raising the Quinn decision issue here. If a planned administrator is faced with some uncertainty as to whether an individual is able or unable to perform some of his essential job duties, then it's certainly incumbent upon the administrator to attempt to ascertain what those job duties are. But here, Liberty never reached that stage of analysis because the only information provided to Liberty from his psychiatric health care providers did not indicate that he could not work. If you review the records of Dr. Ying Chang and the records of Marion Robinson, they're quite consistent in that regard. Is that the standard note? Does he have to prove he is absolutely... Let me back up and ask you this, Frank. Isn't the standard imposed on Mr. Can Bino that he show that after that exclusion period, that two-week exclusion period, that he's regularly attending physician or regularly seeing a physician, and it can't work. Is that... Am I wrong about that? He has to demonstrate that during the elimination period and going forward in time, that he is unable to perform his duties, in other words, that he's disabled from performing the duties, and that he's under the regular attendance of a physician. Okay, and that takes us to what Judge Fish was asking, I guess that's why I'm trying to ask it and not be very artful. If you don't know what his duties are because you never ask, how can you make a decision that's anything other than arbitrary and capricious and making the statement that he hasn't shown he can't perform his duties? Because it was incumbent upon him to proper some medical evidence that he was unable to work. He never did that. If we had received information from Dr. Ying Chang, for example, that said he can... he's restricted from lifting 30 pounds. I thought Dr. Arlock had said he can't come back to work. You shouldn't come back to work. Am I mistaken about that? I would need to address Dr. Arnook a bit differently. Dr. Arnook submitted sort of a one-page form saying he's not clear to return to work. Isn't that the same medical evidence? It's not sufficient, Your Honor. Dr. Arnook has agreed that he was not qualified to opine on Mr. Gambino's mental health disability status. He is an internist. Despite liberties, repeated requests, he'd never provided anything in the way of medical history, office notes, a treatment plan, anything. Evidently, Mr. Gambino went to Dr. Arnook on March the ninth it looks like, although there's some discrepancy there. And asked Dr. Arnook who was his treating internist for diabetes to fill out a form. Dr. Arnook, and you'll see that his testimony reflected in our brief, he did so because he felt that he should fill out the form. But he certainly testified a trial that he was not qualified to diagnose or treat Mr. Gambino's condition, alleged condition, and in fact he never did so. The two... Wouldn't Debbie are you inviting us to look outside the record to the trial testimony? No, I'm really... Thanks to which you have so roundly criticized your plan. That is a double-lipsoorth. And no, I'm not asking you to do that, but I can tell you that with mental health issues and with any disability issue, the administrator does look to medical testimony. So, this is a double testimony from properly credentialed healthcare providers. And in this instance, they were looking for medical evidence from properly credentialed mental healthcare providers, which here was Dr. Yin Chen and also Mary and Robinson, neither of whom stated that Mr. Gambino was unable to work. Both of whom said that he should take medication, both of whom said he should attend weekly treatment sessions, and he did not. All right, Mr. Kniff, we'll have you back on our bottle. Thank you. Mr. Rizzo? Yes, sir. Please support for the afternoon, your hours. My name is Paul Rizzo. I'm representing the athlete, Anthony Gambino. Mr. Rizzo, did the district court go outside the administrative record and determining this case? Not in its ultimate determination, your honor. In its ultimate determination, the district court looked at what was in the administrative record before the administrator at the time of denial. The district court cited Dr. Arnox certification. In fact, the district court may elit a list of what was before page 15 of the decision. And talk to the side and sworn statement of Dr. Arnox as of March 9, 2001. The records in opinion of Dr. Yin Chen, the treating psychiatrist, and the records in treating therapists of Mary and Robinson. So when the court made its decision as to whether there was an arbitrary decision, the court relied upon and looked at only what was before the district administrator in making that determination. The statement just made by Ms. Smith that neither Ms. Robinson nor Dr. Yin Chen said that he was disabled. Mr. Gambino is wrong. Ms. Robinson did not make that statement because Ms. Robinson is a mental health provider or therapist. She's not a doctor making determination. She wasn't asked the question. But if you look at it's at a 155 in the appendix, it's Ms. Yin Chen's letter to liberty in which she is answering about five questions that Dr. Arnox had not answered on the form supplied by liberty. And she indicates that he was not able to work, although she does indicate at the date of 327-01. The reason she sites that day is it's the day he's evaluating at St. Clair facility from which she works from. So that's the first contact. St. Clair is anyone from St. Clair's house? Yes, I ask it. Didn't Ms. Liberty below specifically object at the time of the non-jury trial to the taking of testimony as opposed to the review of the administrative record? Yes, sir. Okay. And didn't the court notwithstanding those objections go on and take testimony some of which went beyond the clearly went beyond administrative record? Yes, sir. And my review of the administrative, from my review of the court's opinion, shows at least perhaps six or eight different points that were part of the court's findings that came from testimony as opposed to the administrative record. It's self-musk glaring of which was the indication of Mr. Gambino's demeanor trial. Judge, I agree with that. I submit that the record was so overwhelming that the court, I just surmise made the observation of it. The problem you had, Your Honor, is at the point of the outset of the trial when Liberty is making these objections is we've never determined, we've never had Liberty say in the litigation with any specificity. This is why Mr. Gambino was denied. This became a problem throughout the case. It's not until we're almost through the case that Judge Hockford finally submit lost patients and said, what's the reason? And the reason for taking a lot of testimony at that point is we don't know. We know through the submission of the letters to Mr. Gambino that they asked for objective medical evidence of this psychological condition around the time he left work and said, we didn't have that, that's why you're denied. But through some re-judgment, motion to reconsider, trial brief and limiting motions, we have discussions of the lack of getting information in a timely manner, the vacation, the golf thing. We have other indignation questions in terms of whether he's really disabled and there's no definition of what would you rely upon. So at the time we start trying, at that point we're taking testimony because we need certain information that's not there. For one thing, I think Mr. Gambino needs to testify so what his job duties are, because that is not part of the record. And it was not in there. And how is the court going to evaluate what's going on? Why does, why does it, is there, why is testimony needed as Mr. Gambino's job duties to make a determination as to whether or not Liberty's determination of his disability? Based on the record today had, it was correct or whether it was arbitrary and capricious. My determination at that point, you're on, how does the court, anywhere in Liberty, determine whether Mr. Gambino's psychological condition prevented him from doing his job unless the court knows what that job is? Isn't that good for you? I mean, I guess some will puzzle like, I can take a judge's Fisher as I shouldn't be for him, but by introducing that, well. Did you just have a legal argument that it's arbitrary and capricious to make a determination without evidence in the record as opposed to putting evidence in the record? That was part of the argument, yes sir. Yes sir, but I felt and Judge Hawker agreed with me with the record before it's not knowing what Liberty is basing as an eye really on. We need to go a little further, I will still understand that at that point, I have a claim against Dr. Rannock. Which incella is not in this appeal at this judgmental rate? That's correct. He's out of the mix. That's correct. But at that point, I'm again not certain if it appears from the letters of Liberty that they are denying the benefits because Dr. Rannock never provided that off the snow. So that's my claim against Dr. Rannock. Testimony I feel is necessary as to Dr. Rannock, I certainly not limited to Dr. Rannock. But again, I just want to go back to my only answer, Judge Fisher, your question, but again pointing out that, yes, there was a different testimony taken because, quite frankly, I think the record and even the decision on summary judgment makes it clear that we're not sure what was going on with Liberty. But by the time that Liberty says, it was because you didn't establish disability in the elimination period, Judge Hawker disregarded what she makes her decision, what was there and says, look, you have Dr. Rannock's certified statement he came in on March 9th, that he's suffering from anxiety and depression and I took him out of work and he cannot work. I refer him for psychiatric evaluation. You have a note that you knew he was evaluated, St. Clair's on March 27th. You have the opinion of Dr. Yunchan that yes, he was unable to work. You have this nurse McGovern whose qualifications we don't even know, but one point I emphasized the lack of qualifications, one point I think either Judge Hawker or Ryan emphasized. Was the nurse McGovern never recommended a discontinued or disqualified, what she recommended was contact with the primary care physician that asked some more questions. Liberty didn't even follow the recommendations of their reviewing nurse. So Liberty clearly had all this information before it and disregarded the opinions of treating physicians without having a review of its own and it does have that burden on the last. What do you make of the argument made by Liberty that the clean here should have failed because he didn't regularly attend the appointments he had. There wasn't regular treatment by a physician. There was regular treatment. The problem is how do you define regular treatment. Now, the only reason answer is what we have the discretion to interpret meaning. But the problem again goes to it did not set forth to Judge Hawker when she asked the direct question. We're denying because you didn't settle for regular attendance. They said you would deny because you didn't establish this ability within that 14-day period. In fact, as he did establish, you went to Dr. Yunchan. The argument by Liberty that they didn't make in a court blow. Absolutely. And by the time they denied the claim in August of 2001, he was regularly seeing the physicians. Ms. Robinson and Dr. Yunchan had been at that point for a period of months. What the argument was in terms of regularly seeing physician is that in the beginning in establishing it, he was not regularly seeing the physician. But I don't think you can look at that point in a vacuum or in the Astra. But don't you have to look at that point in light of the terms of the policy. And if he had not been seeing a physician regularly in March, maybe he should have reapplied for disability at a later date when he was regularly seeing a physician. Because the plan calls for, does it not regularly seeing a physician? And the plan calls for the plaintiff supplying those documents, the proof of that, to the insurer. Two points to Dr. Yunchan. One, you say he couldn't reapply. But the fact is, when the denial is first made and he makes his initial appeal, he is regularly seeing a physician at that point. And they have that information at that point. So I don't think a re-application would be necessary. As to the issue of, is it necessary for the person who doesn't have to qualify, if the time he applied, he wasn't qualified. Because he was not regularly seeing a physician. Well, I disagree with that conclusion. That's what the plan calls for. Well, the plan says, if applicable, in your notice and proof, you must establish cause and applicable, whether you can work if applicable, et cetera. And they want notice, I mean, some, they want proof of the disability and the regular treatment by physician. I submit again that at the time it's denied he did establish regular treatment. And not within the qualifying period. Not within the two weeks, Judge. Yeah. But he did see a physician within those two weeks. He saw Dr. Arnook. That's where he went. As soon as he leaves work or he's out of work, he does see Dr. Arnook. Dr. Arnook refers him for psychiatric treatment. It takes him 17 days to establish instead of 14 days for that initial intake. And what I think is important to note, Your Honor, is that the nature of the condition itself, you can't look at it just in a vacuum. He's saying, I cannot function. I have to go around. He has people with him who can help in function, which is what his wife was assisting him to do. But by the nature of the condition, if he starts a immediate treatment, he's going every week, he's on time, et cetera, then the claim's going to be, well, obviously you can function. So, no. Well, that didn't happen. So that's that's that's in the abstract. Can I ask you a question, Mel? If you if you're there's more that you need to say to judge on. Okay. No. Long term disability. Yes sir. He doesn't make any application whatsoever. No. How can it be wrong for all of you to say no to something he never asked for? And the party who should who would provide that long term disability isn't even a party to this litigation. Well, I con did not do anything wrong at this point that you could have really pointed to icon. That was a mistake early on that I started to make based on some of the advisements, but really at that point, how could I fall a icon? If he hasn't made application, liberty hasn't make it, they do make the initial decision. And if that hasn't happened, I don't think I can fall icon at that point. That's what I'm trying to get at. How is it a breach of their fiduciary role to say no to something that was never asked for? Because they led him to believe again, this is the futility argument. How is Mr. Gambino? Mrs. Gambino or anyone else supposed to know there is any point or even a possibility of applying for long term benefits? First of all, they don't know icons role we should be liberty. Second, no matter what he has done over the course of six months, liberty has said not good enough, not good enough, not good enough. At that point, how is he going to make an application for long term benefits? If he does know, I don't get short term benefits, I don't get long term benefits. For liberty to suggest we had eight people look at this and deny him under the short term, maybe the ninth person would have granted it to him, or maybe icon would have overruled us. Well, all we're asking at this point, all judge, Hawkberg is don't you just give us that opportunity. Let us take a look at this. That's all she determined is all right, I'll read you man, look at it, give him the opportunity at this point. But in terms of the late person with psychological disability with help or not help, so look at the conduct here. I just want to make two quick points, I don't have time to give to Mr. Moore-Miles. Now, Arissa does require some notice with specificity of why you're denying him. And to simply send him letters saying, no objective medical evidence at the time you left employment does not give him with any specificity of what they're missing, doesn't give him anything about regular attendance to the physician, et cetera. And the second quick point is the defense council has cited twice in their brief had in the reply, the steel versus Boeing case and district court case, which I believe has recently been reversed. And I would look at that and say it's very similar. I believe Judge Fisher sat on that panel where you had a demand looking for diagnostic test of a condition, you can't prove diagnostically. And I believe that's part of the frustration that Mr. Gambino had here is how is he objectively proving a psychological condition? Thank you Mr. Resonant. Thank you. Mr. Moral. The district court found for your client and there was no appeal. What do you want to get? We weren't made part of the appeal. They didn't present an argument in any of their briefs with regard to my clients. You were a man of appeal in the caption. Correct. Yes, yes, yes, your honor. So my only point of standing here was to make sure I clarify with the court is just clarified that nobody is seeking an appeal. It's Dr. Rannock. Thank you. Thank you. Ms. Smith. Yes, just briefly a few points on rebuttal. I want you to touch the long term because you wanted to do that nice shift to get it was raised. All right, on the futility doctrine. All right, the only exception, the only recognized exception, which would allow a plan participant to proceed on a complaint in court without first-hand. So having made and exhausted a claim through the administrative process is through the well recognized futility doctrine in the third circuit that is articulated in the arrow case. And it requires the plaintiff to show a clear and positive showing, to demonstrate a clear and positive showing of futility. Now, here, the plaintiff really has not articulated any basis for application of the futility doctrine. What he basically is saying is that he assumed, and he's always taken a position that he assumed to based upon, advised that his wife had given him that if you don't receive short term benefits, you are not going to receive long term benefits. The cases that we've cited in the brief are quite clear that an assumption like that is just not sufficient to overcome the heavy hurdle set out in Harrah. Now, by contrast, the undisputed evidence shows that Mr. Gambino might well have prevailed on a claim for long term benefits that it would not have been futile at all. The claims have different, the plans have different elimination periods. The short term plan has a very tight window of opportunity, so to speak. It is a two-week window. The long term plan has a six-month window. It's much different. Secondly, the plans are handled by different claims administrators. Liberty's short term disability unit handled, the short term administrative process, a completely different unit would have looked at any long term claim that Mr. Gambino might have made. Well, the plans. Mr. Gambino is saying, I had psychological problems. I was not in a position to understand what this was all about or do anything. Is there a responsibility then on the plan administrator to make sure that Mr. Gambino understands what might be available to her? Mr. Gambino has never claimed that he didn't understand that he had a right to file a long-term disability claim. His position simply is that he thought that it would not have changed the outcome of the decision. And under Harrah, that is simply not enough. Let me ask a couple of questions about this regular attendance with the physician. The elimination period for the short term is two weeks, right? Correct. So how often in two weeks do you have to see a doctor to be deemed to regularly be seen in position? There's no specific number of occasions that one has to be seen, but Harriet Michael, the appeal review specialist who testified at trial, advised that it has to do with the participants adherence to whatever treatment is specified. So if he's supposed to go once a week, then that's regular attendance. If he's not supposed to come again for six months, then that's regular attendance. So if he's referred for psychiatric care within the elimination period, and he, in fact, goes for psychiatric care, but it takes him more than two weeks by a couple days to get there. Is that not regular? Well, the hard answer to that is that they need to show attendance during the two week period. Now, as a practical matter, would the administrator have been more flexible if it had been a close in time proximity? Perhaps we don't know that. But Mr. Gambino did not give to see any mental health care provider until a month after he stopped working and two weeks after the close of the elimination period. He did not see her again for six weeks because he left for a vacation and then was a no show. He just did not establish regular attendance. Thank you, Ms. Messos. Could I make just one other point on the futility? I just wanted to make sure that the court understands that under the long term plan, the final decision maker on benefit is not liberty. Thank you. Thank you. Thank you. I want to thank Council for their help for arguments and we'll take the matter under advisement