What is a Pre-Existing Condition?
Long-Term Disability (LTD) policies that are governed under ERISA frequently have a pre-existing condition coverage exclusion that is usually broadly worded. It often goes something like this:
“We will not pay any benefit, or any increase in benefits, under the policy for any disability that results from, or is caused or contributed to by a pre-existing condition, unless at the time you become disabled, you have not received medical care for the condition for 90 consecutive days while insured under the policy, or if you have been continuously insured under the policy for 365 consecutive days. “
“The term pre-existing condition means any accidental bodily injury, sickness, mental illness, pregnancy, or episode of substance abuse, or any manifestations, symptoms, findings, or aggravations related to or resulting from such accidental bodily injury, sickness, mental illness, pregnancy, or substance abuse for which you received medical care during the 90 consecutive day period that ends the day before your effective date of coverage, or the effective date of a change in coverage.
“Medical care is received when a physician or other health care provider is consulted or gives medical advice or recommends, prescribes, or provides treatment.”
“Treatment includes but is not limited to medical examinations, tests, attendance or observation and use of drugs, medications, medical services, supplies or equipment.”
The “Look Back” Period
Whether there is a pre-existing condition depends on the “look back” period, which is the 90- consecutive day period that ends the day before the effective date of coverage. If a medical condition is suspected, diagnosed or treated during the look-back period, then it is a “preexisting condition,” and may be excluded from coverage.
Insurers typically draft their pre-existing condition exclusion clauses broadly, but courts have interpreted them narrowly, in accordance with well-established principles of insurance law, which require exclusions to be narrowly construed. Critchlow v. First Unum Life Ins. Co. of America, 37 F.3d 246, 256 (2nd Cir. 2004) (Under ERISA, exclusionary clauses “are given strict construction” and “should be read narrowly rather than expansively.”)
Under the law, an insurer bears the burden to show its exclusion applies to the medical facts involved in the case. Mario v. P& C Food Mkts, Inc., 313 F.3d 758, 765 (2nd Cir. 2002) (“[A]s a matter of general insurance law, the insured has the burden of proving that a benefit is covered, while the insurer has the burden of proving that an exclusion applies.”)
Will My Pre-Existing Condition Exclude Coverage?
Most LTD policies provide that if you have a medical condition that has been diagnosed (or even suspected) or treated in the “look back” period, then that condition is considered a pre-existing condition and will be excluded from coverage. However, many policies provide two exceptions. (1) If you remain continuously insured for 1 year from the date you first became insured (insured date), or (2) if you do not receive medical care during any 90 day period on or after your insured date and before your date of disability. Then, even though you have a pre-existing condition, your disability coverage will not be excluded if you meet one or the other exception.
What Happens When There Are Symptoms in the Look Back Period Without a Diagnosis?
When a claimant sees a health care provider for what are only symptoms in the “look back” period, before a diagnosis as to the cause of those symptoms has been established, an insurer may nonetheless attempt to exclude coverage for an underlying condition by retrospectively claiming the symptoms in the look back period relate to that underlying condition after it has been diagnosed.
For example, in Lawson v. Fortis Ins. Co., 301 F.3d 159 (3d Cir. 2002), an insurer denied disability coverage for leukemia on the ground that a claimant's symptoms of shortness of breath during the 90-day “look back” period (initially diagnosed as an upper respiratory infection) had been an early symptom of the later-diagnosed leukemia. The insurer claimed therefore that Lawson's leukemia was a pre-existing condition and excluded it from coverage because the shortness of breath in the look back period had been a symptom of her leukemia.
However, the Lawson court held otherwise, explaining that the leukemia was not a pre-existing condition because “it does not make sense to say that [the plaintiff] received treatment ‘for' leukemia when the actual condition was not suspected” during the “look back” period.
In Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 269 (1st Cir. 1994), the court held that there must be “some awareness on the part of the physician or the insured that the insured is receiving treatment for the condition itself” in order to qualify as treatment “for” a condition under the terms of the policy.
Accordingly, when a claimant “seeks advice from a doctor for a sickness with a specific concern in mind (e.g., a thyroid lump, as in McWilliams v. Capital Telecomms. Inc., 986 F. Supp. 920 (M.D.Pa.1997), or a breast lump, as Bullwinkel v. New England Mutual Life Insurance Company, 18 F.3d 429 (7th Cir. 1994), or when a physician recommends treatment with a specific concern in mind (e.g., a “likely” case of multiple sclerosis, as in Cury v. Colonial Life Ins. Co. of Am., 737 F. Supp. 847, 854 (E.D. Pa. 1990)), it can be argued that there was an intent to seek or provide treatment or advice “for” a particular disease. But when the patient exhibits only non-specific symptoms and neither the patient nor the physician has a particular concern in mind, or when the patient turns out not to have a suspected disease, it is awkward at best to suggest that the patient sought or received treatment for the disease because there is no connection between the treatment or advice received and the sickness.” Stated another way, “a suspected condition without a confirmatory diagnosis is different from a misdiagnosis or an unsuspected condition manifesting non-specific symptoms.” Lawson, 301 F.3d at 166.
A critical factor in such cases appears to be whether the physician rendering services during the look-back period “suspects” the condition, even if it has not yet been formally diagnosed. Pitcher v. Principal Mutual Life Insurance Company, 93 F.3d 407 (7th Cir. 1996).
Therefore, in order for a claimant to be considered as being treated or seen for the particular condition, even if a claimant has not been diagnosed with that condition during the look-back period, there must be at least some concern or suspicion that the observed symptoms were caused by the particular condition. LoCoco v. Med. Savings Ins., 530 F.3d 442, (6th Cir. 2008) (“[C]ourts have concluded that the ultimate condition need only have been suspected with a reasonable degree of likelihood in order to be considered ‘pre-existing.'”)
The fact that a claimant is eventually correctly diagnosed with a condition causing the symptoms is not material to a determination of whether the claimant's medical care providers at the time of the medical treatment suspected that diagnosis. “To permit such backward-looking reinterpretation of symptoms to support claims denials would so greatly expand the definition of pre-existing condition as to make that term meaningless … any prior symptoms not inconsistent with the ultimate diagnosis would provide a basis for denial.” Lawson, 301 F.3d at 166.
The court in McLeod v. Hartford Life & Accident Ins. Co., 372 F.3d 618 (3rd Cir. 2004) similarly held that “a symptom can only be a symptom of the underlying condition if the underlying condition is known or suspected” in the look back period. Such is also the case for any medical care provided. After a diagnosis of the underlying condition has been established and a treating physician, in retrospect and with the benefit of hindsight, attributes claimant's pre-coverage symptoms to that condition, does not transform that condition into a pre-existing condition.
Other Examples of Coverage Denials Based on Pre-existing Conditions
In Fought v. Unum Life Ins. Co. of America, 379 F.3d 997 (10th Cir. 2004), claimant underwent coronary artery bypass surgery in the look back period, but then later developed a serious staph infection, for which the insurer denied coverage by concluding the staph infection was a result of the coronary bypass surgery and was therefore excluded from coverage on the basis of a pre-existing condition. The court held otherwise, explaining that the heart surgery and the subsequent infection were sufficiently attenuated and that the heart surgery itself was not a pre-existing condition, but rather a necessary consequence of a pre-existing condition (namely, coronary artery disease).
In Dowdy v. Metropolitan Life Ins. Co., ____ F.3d ___ (9th Cir. May 16, 2018), claimant had pre-existing diabetes and later suffered a serious injury to his leg that required a below-knee amputation. The insurer refused to provide coverage for the amputation on the ground that claimant's diabetic condition (which was a pre-existing condition) caused or contributed to his leg amputation. The court disagreed that claimant's diabetes “substantially” caused or contributed to his amputation and required the insurer to provide coverage.
Insurers often use pre-existing condition exclusions in the policy to avoid paying LTD benefits for a disabling condition by claiming its symptoms or manifestations occurred in the look back period, or to avoid paying for expensive treatments, by claiming substantial contribution from a prior pre-existing condition. These denials can potentially be challenged if for example- during the look back period there was no awareness or suspicion on the part of a claimant of a claimant's medical providers that the claimant had a condition that was only later diagnosed as causing those symptoms. Another example of challenging pre-existing condition exclusion clauses might arise if a pre-existing condition was sufficiently attenuated from, and did not substantially cause or contribute to, the new medical condition. This is an interesting and nuanced area of ERISA law and continues to evolve.