:: Third Circuit Takes Expansive View Of Preexisting Condition Exclusion
The implication from [the Plaintiff's] argument is that he falls into the category of “a misdiagnosis or an unsuspected condition manifesting non-specific symptoms,” which under both McLeod and Lawson would not be demonstrative of a pre-existing condition. Contrary to Doroshow’s claims, however, the record plainly demonstrates otherwise. Based on his family history of ALS and his medical records, we conclude that it is clear that Doroshow sought advice for ALS when he visited Dr. oldstein during the look-back period. Therefore, he had a “suspected condition without a confirmatory diagnosis,” which may appropriately be deemed a pre-existing condition.
Doroshow v. Hartford Life & Accident Ins. Co., 2009 U.S. App. LEXIS 16820 (3d Cir. Pa. July 30, 2009)
Jay Doroshow applied for disability benefits following a diagnosis of Amyotropic Lateral Sclerosis (ALS) on March 15, 2007. ALS (more familiarly known as Lou Gehrig’s disease) is one of several motor neuron diseases (MNDs). MND’s are progressive neurological disorders that destroy motor neurons, the cells that control essential voluntary muscle activity such as speaking, walking, breathing, and swallowing.
The diagnosis of the disease is clinical. There are no specific tests to diagnose MNDs. Neurological exams are required to assess motor and sensory skills, nerve function, and a variety of tests are necesssary to rule out other diseases.
Thus, when Doroshow sought medical advice for certain non-specified symptoms in July of 2005, he began a series of medical visits that could ultimately be viewed, in retrospect, as treatment for a pre-existing condition.
The Plan Provisions
Doroshow was an employee of the CVS Corporation and participated in its Long Term Disability Income Insurance Plan, a group benefit plan issued by Hartford. CVS “delegated sole discretionary authority to Hartford … to determine [the participant's] eligibility for benefits and to interpret the terms and provisions of the plan and any policy issued in connection with it.”
Doroshow’s effective date of coverage was July 1, 2006. This is an important date.
Under the plan, long term disability benefits are not payable for disabilities “caused by, contributed to, or resulting from … a pre-existing condition.” A pre-existing condition is one “for which medical treatment or advice was rendered, prescribed or recommended within 12 months (3 months for exempt employees) prior to [the participant's] effective date of insurance.” It is undisputed that Doroshow was subject to the three-month look-back period.
The Diagnosic Process
On July 25, 2005, Dr. Mark J. Brown, M.D., a neurologist, conducted an electromyographic (EMG) test on Doroshow. In Dr. Brown’s notes, he wrote:
“1. Chronic active degeneration of right leg, arm, paraspinal and bulbar muscles with near-normal nerve conduction studies. These are features of a motor neuron disease. 2. If the left Babinksi sign is a consistent feature then he has the ALS form of motor neuron disease.”
Following this test, Doroshow visited Leo McCluskey, M.D., an ALS specialist, on July 27, 2005. Dr. McClusky wrote that:
“Doroshow demonstrates evidence of a lower motor neuron process affecting his right leg” and that “[h]e has no upper motor neuron signs.”
Accordingly, Dr. McClusky felt that “[t]hese are features that do not support the diagnosis of amyotropic lateral sclerosis or a progressive motor neuron disorder.” Doroshow continued under Dr. McClusky’s treatment for motor neuron disease between April 1, 2000, and June 30, 2006.
Doroshow visited Dr. Arnold Goldstein, M.D., his primary care physician on May 16, 2006. That visit occurred during the look-back period under the Hartford policy. The doctor’s notes stated:
“Motor neuron disease. Lumbrosacral plexitis is the most recent diagnosis. Was not felt to be ALS.”
Ultimately, however, Dr. McClusky was diagnosed Doroshow with ALS on May 15, 2007.
The Benefit Denial
Hartford denied Doroshow’s claim for benefits based upon the pre-existing condiction exclusion, stating:
Our review of all of the medical information in your claim file shows that you are claiming benefits because of symptoms related to motor neuron disease (MND), which includes amyotrophic lateral sclerosis (ALS). The medical records obtained from the office of Dr. Goldstein indicate that you were treated for this condition on 05/16/2006. ALS was discussed in this OV, likely due to the type of symptoms you were experiencing and the family history of this disease. Intermittent workup and follow up continued for your reported symptoms until definitive diagnosis was reached in March 2007. You were provided advice related to the possibility of an ALS diagnosis on 05/16/2006, and the symptoms were certainly a precursor to the eventual diagnosis of ALS. This treatment date falls within the 3 month period that ends before your effective date of LTD coverage. This information shows that your condition was Pre-existing.
The District Court – Holding For Hartford
Doroshow appealed the District Court order granting summary judgment in favor of Hartford Life and Accident Insurance Company. The District Court found that Hartford had not been arbitrary and capricious in its decision to deny long term disability benefits to Doroshow under an employee welfare benefit plan, governed by the Employee Retirement Income Security Act of 1974 (ERISA), 29 U.S.C. § 1001, et seq.
The Third Circuit – Standard Of Review
The Court noted the intervening decision in Met Life v. Glenn.
Glenn reiterated its position in Firestone that a reviewing court should consider the conflict of interest — but only as one consideration among many. Id. Insofar as Glenn implicitly overrules and conflicts with our precedent, requiring courts to apply a heightened arbitrary and capricious review, we will apply the Glenn abuse of discretion standard where a conflict of interest exists.
Hartford’s Decision Upheld
The Third Circuit nonetheless upheld Hartford’s decision. As noted at the outset, ALS is only diagnosed by a process of clinical tests that rule out other conditions. This unique nature of the disease presented an predicament for Doroshow.
We note, as the District Court did, that ALS is the most common form of motor neuron disease. Because of the inexorable, progressive nature of the disease, it is not surprising that, when Doroshow first began exhibiting symptoms, the doctors did not conclusively determine that he had ALS, but more generally said only that he had a form of motor neuron disease. From the record and Doroshow’s family history of ALS, however, it seems that a diagnosis of ALS was repeatedly considered after he began showing symptoms of a motor neuron disease.
Doroshow, in support of his position that the “ruling out” of a condition cannot constitute advice, cites two of our cases, McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618 (3d Cir. 2004), and Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d 159 (3d Cir. 2002). In McLeod, an employee was denied long-term disability benefits because of the alleged pre-existence of multiple sclerosis. He had sought treatment during the look-back period for a variety of non-specific symptoms and was treated for a host of ailments, but during this period, neither the employee nor his doctors suspected multiple sclerosis. We found that Hartford’s denial was arbitrary and capricious and held that seeking medical care for a symptom of a pre-existing condition can serve as a basis for denying coverage when there is some “intent to treat or uncover the particular ailment which causes that symptom (even absent a timely diagnosis), rather than some nebulous or unspecified medical problem.” McLeod, 372 F.3d at 628.
Resort to Random House
In what I find to be one of the most peculiar habits of the judiciary, the Court, having found an undefined term, attempts to resolve the dispute by resort to a general reference dictionary.
The parties’ dispute centers around Hartford’s interpretation of the word “advice” in the insurance contract, which defines a pre-existing condition as “a condition for which medical treatment or advice was rendered, prescribed or recommended within 12 months (3 months for exempt employees) prior to Your effective date of insurance.” Because the contract provided no definition of advice, the District Court turned to the ordinary meaning of the term, “an opinion or recommendation offered as a guide to action.” The Random House College Dictionary 20 (Laurence Urdang et al. eds., 1973).
Using this definition, the District Court determined that Hartford was reasonable in finding that Doroshow received advice regarding ALS during the look-back period. The Third Circuit agreed.
“Ruling Out” Clinical Examinations
The Third Circuit opined that it did not “generally that ruling out a condition constitutes advice or treatment for that condition”, but it nonetheless found “Dr. Goldstein’s notes related to ALS particularly compelling in the broader context of Doroshow’s entire medical history.”
As early as 2005, ALS was considered as a possible diagnosis for the range of symptoms Doroshow had experienced. Dr. Brown noted that an EMG performed on Doroshow showed signs of a motor neuron disease and possibly ALS. As a result of this test, and Doroshow’s family history of ALS, Dr. Brown suggested Doroshow see an ALS specialist. This specialist, Dr. McClusky, found signs of a motor neuron disease but did not diagnose Doroshow with ALS. Because two doctors before Dr. Goldstein considered ALS as, at least, a possible explanation for his symptoms, we find Hartford’s determination that Doroshow received advice pertaining to ALS specifically during the look-back period was reasonable.
Note: Doroshow presents an interesting case. With a family history of the disease and the process of its clinical diagnosis it appears that his disease was from the very first susceptible to a pre-existing condition exclusion. In the absence of a definition in the plan, the Court might have concluded there was ambiguity. In that case, the Glenn approach might have made the difference.
Any one factor can act as a tiebreaker when the other factors are closely balanced.
Instead, the Court of Appeals turned to the Random House dictionary for the “ordinary meaning of the term”. Here it found that advice meant ”an opinion or recommendation offered as a guide to action.”
In view of the doctor’s notes, it seems doubtful that Dr. Goldstein gave a “recommendation” when he stated “Was not felt to be ALS.” That was an “opinion”, however, and thus the dictionary definition appears to have made the difference.
The Dissent - The dissenting opinion found the outcome at odds with prior precedent.
Jay Doroshow is entitled to benefits because he was neither given advice nor treated for ALS, prior to his diagnosis of that condition in March 2007 — nearly one year after his doctor had not only diagnosed him with a different condition but had actually rejected a diagnosis of ALS. The majority’s conclusion that his doctor’s negative diagnosis of ALS during the relevant three-month period somehow renders his later-diagnosed ALS a “pre-existing condition” under Hartford’s policy rests upon a seriously flawed reading–or total disregard–of the definition of this phrase provided in the Hartford policy, as well as two precedents of our court construing similar policy terms. McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618 (3d Cir. 2004); Lawson ex rel. Lawson v. Fortis Ins. Co., 301 F.3d 159 (3d Cir. 2002).
As noted above, the family history and the nature of the disease appears to have tainted the majority opinion’s objectivity.
The dissent cited the prior decision in Lawson, stating:
In rejecting an expansive definition of “for,” we explained:
Although we base our decision on the language of the policy, we note that considering treatment for symptoms of a not-yet-diagnosed condition as equivalent to treatment of the underlying condition ultimately diagnosed might open the door for insurance companies to deny coverage for any condition the symptoms of which were treated during the exclusionary period. To permit such backward-looking reinterpretation of symptoms to support claims denials would so greatly expand the definition of preexisting condition as to make that term meaningless: any prior symptom not inconsistent with the ultimate diagnosis would provide a basis for denial.Id. at 166 (internal citation omitted).
I submit that the majority here has fallen into this very trap by essentially concluding that, because Doroshow likely had ALS all along, ALS was a “pre-existing condition.” In so reasoning, the majority does a disservice to the policy language, to our precedent in Lawson, and to Doroshow himself.
