McLeod v. Hartford Life , 372 F.3d 618 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
6-22-2004
McLeod v. Hartford Life
Precedential or Non-Precedential: Precedential
Docket No. 03-1744
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Stief, Waite, Gross, Sagoskin & Gilman
PRECEDENTIAL 547 East Washington Avenue
P.O. Box 274
IN THE UNITED STATES COURT OF Newtown, PA 18940
APPEALS FOR THE THIRD CIRCUIT
____________________ Counsel for Appellant
NO. 03-1744 BRIAN P. DOWNEY(Argued)
___________________ Pepper Hamilton, LLP
200 One Keystone Plaza
SHIRLEY MCLEOD Harrisburg, PA 17108
Appellant Counsel for Appellee Hartford Life &
Accident Insurance Company
v.
LAWRENCE M . KELLEY
HARTFORD LIFE AND ACCIDENT Mintzer, Sarowitz, Zeris, Ledva & Meyers
INSURANCE COMPANY; GROUP 1528 Walnut Street
LONG TERM DISABILITY BENEFITS 22nd Floor
FOR EMPLOYEES OF VALLEY Philadelphia, PA 19102
MEDIA, INC; VALLEY MEDIA, INC.
Counsel for Appellee Valley Media Inc.
________________ _______________________
OPINION
On Appeal From the United States District _______________________
Court for the Eastern District of
Pennsylvania
BECKER, Circuit Judge.
(D.C. No. 01-cv-04295)
District Judge: Honorable Cynthia M. Rufe
______________________________ This is an ERISA case. Plaintiff
Shirley McLeod (“McLeod”), a former
Argued January 12, 2004 employee of defendant Valley Media, Inc.,
appeals the District Court’s grant of
Before: ALITO, CHERTOFF, and summary judgment in favor of defendant
BECKER, Circuit Judges. Hartford Life and Accident Insurance Co.
(“Hartford”) in which the Court upheld
(Filed June 22, 2004 ) Hartford’s denial of long term disability
(“LTD”) benefits to McLeod based upon
Hartford’s interpretation of the language in
BARRY L. GROSS (Argued) McLeod’s benefits policy with Hartford.
The question before us on appeal is whether video cassettes in a warehouse and involved
Hartford wrongfully determined that long periods of standing. McLeod signed up
McLeod, who had been receiving medical for health insurance and other benefits under
care for various ailments since 1997, but the Valley Media Plan (“the Plan”) with an
who was neither diagnosed with nor treated effective date of April 1, 1999. Under the
specifically for multiple sclerosis (“MS”) terms of the Plan, a participant is not entitled
until after her benefits plan became effective to receive benefits for any disability that
in 1999, should have been excluded from stems from a “pre-existing condition.” In
coverage due to the existence of a “pre- relevant part, the Plan provides that:
existing condition,” namely MS. Consistent
No benefit will be payable
with our opinion in Lawson ex rel. Lawson
under the Plan for any
v. Fortis Insurance Co., 301 F.3d 159 (3d
Disability that is due to,
Cir. 2002), we hold that despite language in
contributed to by, or results
the benefit plan aimed to cast a broad net as
from a Pre-existing Condition,
to what constitutes receiving medical care
unless such Disability begins:
for a “pre-existing condition,” McLeod did
(1) after the last day of
not receive treatment “for” such a pre-
90 consecutive days while
existing condition prior to her effective date
insured during which you
of coverage because neither she nor her
receive no medical care for
physicians either knew or suspected that the
the Pre-existing Condition; or
symptoms she was experiencing were in any
way connected with MS. Under the (2) after the last day of
heightened standard of review formulated in 365 consecutive days during
Pinto v. Reliance Standard Life Insurance w h i c h y o u ha ve bee n
Co., 214 F.3d 377 (3d Cir. 2000), the continuously insured under
decision to deny McLeod LTD benefits was this Plan.
arbitrary and capricious and we will
P r e - e x i s t i n g
therefore reverse the District Court’s grant
Condition means:
of summary judgment to Hartford, reverse
its denial of M cLeod’s motion for summary (1) any accidental bodily injury,
judgment on liability, and remand for sickness, mental illness, pregnancy, or
calculation of benefits. episode of substance abuse; or
(2) any manifestations, symptoms, findings,
or aggravations related to or resulting from
I. Facts and Procedural History
such accidental bodily injury, sickness,
On January 26, 1998, McLeod was mental illness, pregnancy, or substance
hired by Valley Media to fill a position abuse;
described as “Operations – General
for which you received
Warehouse.” The job consisted of stocking
Medical Care during the 90
2
day period that ends the day provided medical care for the numbness
before: during the February 1999 visit and that she
did not diagnose or otherwise suggest that
(1) your effective date of coverage; or
McLeod might have MS at that time.
(2) the effective date of a Change in McLeod continued to seek treatment for her
Coverage. condition over the next several months from
Dr. DiGregorio, as well as from two
Medical Care is received when:
neurologists, Drs. Emil Matarese and Clyde
(1) a Physician is consulted or Markowitz, and underwent a number of
medical advice is given; or neurological evaluations and MRIs, none of
which produced a diagnosis of MS or even
(2) treatment is recommended,
a suspicion that MS was a possible cause of
prescribed by, or received from a
the numbness and other complaints.
Physician
It was not until August 1999 that
Treatment includes but
McLeod was finally diagnosed with MS, an
is not limited to:
inflammatory disease of the central nervous
( 1 ) m e d i c al system. With the benefit of hindsight, a
examinations, tests, number of physicians including her treating
attendance or observation; physicians and a non-treating physician who
reviewed her medical record for Hartford,
(2) use of drugs,
attributed McLeod’s various pre-coverage
medicines, medical services,
symptoms and ailments to MS. 1 In March
supplies or equipment.
(italics supplied).
1
For example, an evaluation by one of
The issue in the case centers around
McLeod’s treating neurologists dated
the fact that on February 22, 1999, a date
October 27, 1999, after the MS diagnosis
that fell within the 90 day period that ended
had already been made, states:
the day before the effective date of coverage
—the so-called “look-back
[S]he developed the onset of
period”—McLeod consulted Dr. Eileen
intermittent pain and
DiGregorio because of numbness in her left
numbness in her left arm.
arm. Dr. DiGregorio had already treated
She had one attack then
McLeod for a number of years for cardiac
[1998] and another one in
insufficiency, and for multiple bulging
February [1999], both of
cervical discs whose presence had been
which resolved and then
confirmed by MRI evaluations. McLeod
most recently has been
had also been diagnosed with hypertension
having an aggressive attack
and had suffered several panic attacks. It is
starting in the late summer
unconstested both that Dr. DiGregorio
with numbness in both legs. .
3
2000, McLeod applied for short term application for LTD benefits on the grounds
disability (“STD”) benefits. She had last that her disabling condition, MS, was a pre-
worked on January 28, 2000. The Attending existing condition for which LTD benefits
Physician’s Statement completed by Dr. were not payable under the Plan. Although
DiGregorio and submitted as part of the diagnosis of MS was not made until
McLeod’s application provides: August 1999, more than four months after
her effective date of coverage, Hartford
Diagnosis: Multiple Sclerosis
concluded that McLeod had “received
Subjective Symptoms: Severe pain me dic a l [care] for manifestations,
legs, feet, can’t stand long, symptoms, findings or aggravations relating
paresthesias to or resulting from Multiple Sclerosis
during the 90 day period prior to [her]
Date of onset of this
insured effective date of April 1, 1999
condition: 1997
[1/1/99-3/31/99]” when she saw Dr.
Dates of treatment for this DiGregorio for left arm numbness on
c o n d i t io n : P r o g r e s s i v e February 22, 1999.
symptoms since 1997
On November 2, 2000, McLeod
McLeod’s claim for STD benefits appealed this denial through an internal
was initially approved from February 4, appeals mechanism. Hartford informed
2000 through February 17, 2000 and was McLeod, by letter dated February 22, 2001,
then extended through May 4, 2000. At the that it was upholding its determination that
time of the extension, McLeod was informed “the Multiple Sclerosis was a Pre-existing
that benefits beyond May 4, 2000, would be condition based on the ‘Manisfestations,
reviewed to determine her eligibility for symptoms, findings, or aggravations related
LTD benefits. Hartford denied McLeod’s to’ the Multiple Sclerosis.”
McLeod filed a timely appeal of that
decision, again in accordance with the Plan’s
. . The constellation
grievance procedures. The appeal focused
of her symptom[s] is
on McLeod’s claim that she had not received
consistent with
treatment for MS during the look-back
multiple sclerosis
period, since the MS had not yet been
with a
diagnosed at that time. As part of the appeal
relapsing/remitting
process, Hartford forwarded McLeod’s file
onset and now
to the University Disability Consortium for
possibly a secondary
an independent medical review. The review
progressive course
was conducted by Dr. Brian M ercer, a
with this most recent
neurologist. As part of the process, Dr.
attack being
Mercer reviewed M cLeod’s medical
prolonged and
information and spoke to her treating
progressing.
4
physicians, Drs. DiGregorio and Markowitz. Appeal on March 14, 2003. The Court had
Based on his review of the medical records jurisdiction pursuant to 28 U.S.C. § 1331and his discussions with McLeod’s treating because the complaint sought benefits under
physicians, Dr. Mercer concluded that “the 29 U.S.C. § 1132(a)(1)(B). We have
records indicate that [McLeod] was treated appellate jurisdiction pursuant to 28 U.S.C.
on 2/22/99 for left arm numbness, which § 1291.
was a symptom and manifestation of her
multiple sclerosis, albeit not yet diagnosed at
that time.” In consideration of all the II. Standard of Review
information before it, Hartford affirmed its
Our review of the grant of summary
decision to deny LTD benefits.
judgment is plenary. See Shelton v. Univ. of
McLeod then filed a complaint in the Med. & Dentistry of N.J., 223 F.3d 220, 224
District Court alleging claims of interference (3d Cir. 2000). We apply the same standard
with protected rights (Count I); failure to of review to Hartford’s decision to deny
award benefits due under the terms of the LTD benefits to McLeod that the District
Plan (Count II); breach of fiduciary duty Court should have applied. See Smathers v.
(Count III); and breach of contract (Count M ulti- Tool Inc./M ulti-Plastics, Inc.
IV). McLeod named Hartford, Group Long Employee Health & Welfare Plan, 298 F.3d
Term Disability Benefits for Employees of 191, 194 (3d Cir. 2002). McLeod’s claim
Valley Media, Inc., and Valley Media, Inc., arises under ERISA, where “a denial of
as defendants. McLeod voluntarily benefits challenged under § 1132(a)(1)(B) is
dismissed Counts I, III and IV of her to be reviewed under a de novo standard
complaint as against Hartford pursuant to unless the be nefit Plan gives the
Fed. R. Civ. P. 41. The matter was stayed as administrator or fiduciary discretionary
against Hartford’s co-defendants due to the authority to determine eligibility for benefits
bankruptcy of Valley Media, Inc.2 or to construe the terms of the plan,”
Firestone Tire & Rubber Co. v. Bruch, 489
Hartford and McLeod filed cross-
U.S. 101, 115 (1989), in which case it must
motions for summary judgment. The Court
be reviewed under the arbitrary and
granted Hartford’s motion on February 27,
capricious standard. See Smathers, 298 F.3d
2003. McLeod filed a timely Notice of
at 194. Under the arbitrary and capricious
standard, the Court may overturn Hartford’s
decision “only if it is ‘without reason,
2
On February 27, 2003, the District unsupported by substantial evidence or
Court entered summary judgment as to erroneous as a matter of law.’” Abnathya v.
Count II of the Complaint in favor of Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d
Hartford. On February 9, 2004, the Cir. 1993) (quoting Adamo v. Anchor
District Court directed the Clerk to enter Hocking Corp., 720 F. Supp. 491, 500
that order as a final judgment pursuant to (W.D. Pa. 1989)).
Fed. R. Civ. P. 54(b).
5
In this case, the Plan provides Reliance Standard Life Insurance Co., 344
Hartford with “full discretion and authority F.3d 381 (3d Cir. 2003), cert. denied, 72
to determine eligibility for benefits and to U.S.L.W. 3553 (U.S. May 24, 2004) (No.
construe and interpret all terms of [the 03-1203),] the District Court was required to
Plan].” Thus, Hartford’s decision to deny review this decision under a heightened
LTD benefits to McLeod must be reviewed arbitrary and capricious standard.” 3 While
under the arbitrary and capricious standard the record is not clear as to the exact nature
unless the heightened standard of review of the funding arrangement of the Plan, we
formulated in Pinto applies. In Pinto, we accept Hartford’s concession that a
held that “when an insurance company both heightened arbitrary and capricious standard
funds and administers benefits, it is of review applies.4
generally acting under a conflict that
Given this heightened standard of
warrants a heightened form of the arbitrary
review, the discretion Hartford accords itself
and capricious standard of review.” 214
to “determine eligibility for benefits and to
F.3d at 378. This heightened standard of
review uses a sliding scale approach,
intensifying the degree of scrutiny to match 3
the degree of conflict, considering, among In Lasser, neither party disputed on
other factors, the exact nature of the appeal the District Court’s determination
financial arrangement between the insurer that because there was no “evidence of
and the company. See id. at 392. When conflict other than the inherent structural
applying this standard, a court is directed to conflict,” of both funding and
consider “the nature and degree of apparent administering the plan, the correct standard
conflicts” and shape its review accordingly, of review was “at the mild end of the
with the result that the less evidence there is heightened arbitrary and capricious scale.”
of conflict on the part of the administrator, 344 F.3d at 385.
the more deferential the standard becomes. 4
Hartford appears somewhat tentative
Id. at 393.
about its concession that a heightened
McLeod contends that Hartford both standard of review applies. For example,
funds and administers the Plan, and that the Hartford implies that there was insufficient
heightened standard of review formulated in evidence in the record that it funded the
Pinto therefore applies. Both in its brief and Plan to trigger a heightened standard of
at oral argument, Hartford conceded that it review and that the District Court therefore
funded the Plan and that a heightened did not err when it held that the arbitrary
standard of review applied: “There is no and capricious standard of review applied.
dispute that Hartford insures the Plan and However, as noted above, Hartford did
has been provided with authority to construe also concede that a heightened standard of
Plan terms and to determine eligibility for review applied. Thus, despite the hedging,
benefits. Therefore, under Lasser [v. we accept Hartford’s concession at face
value.
6
construe and interpret all terms and promote the interests of employees and their
provisions of [the Plan]” is not unfettered. beneficiaries in employee benefit plans’ and
to ‘protect contractually defined benefits.’”
Firestone, 489 U.S. at 113 (quoting Shaw v.
III. The Plan Language Delta Airlines, Inc., 463 U.S. 85, 90 (1983);
Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
A.
134, 148 (1985)). Were the Plan’s language
The question before us is whether the the subject of non-heightened discretionary
District Court erred when it concluded that review, and had Hartford provided a
a diagnosis of MS that postdated M cLeod’s plausible reason for its interpretation, then
consultation with a physician during the perhaps the result would be different. But,
look-back period for numbness in her arm given Hartford’s concession, heightened
established a pre-existing condition such that review applies and Hartford’s suggested
Hartford’s decision to deny LTD benefits to reading of the terms “for” and “symptom”
McLeod was justified. More specifically, cannot withstand that scrutiny.
could Hartford “read back” a pre-existing
Under Hartford’s interpretation of the
condition for purposes of excluding
Plan, any symptom experienced before the
coverage when the condition itself was not
excludable condition is diagnosed could
diagnosed in the look-back period,
serve as the basis for an exclusion so long as
especially in a situation such as this where
the symptom was not later deemed
other diagnoses were made as to the very
inconsistent with that condition. For
symptoms that are now being attributed to
example, a policy holder could seek medical
the (alleged) pre-existing condition.
care for shortness of breath and be
Hartford would have us hold that diagnosed with the remnants of a very bad
receiving medical care “for symptoms” of a cold, and have a heart attack two months
pre-ex isting condition encompasses later. According to its interpretation,
receiving care for symptoms that no one Hartford would then be able to claim that the
even suspected were connected with the original shortness of breath was a “symptom
later diagnosed ailment but which were later or manifestation” of the underlying, and
deemed not inconsistent with it, but a undiagnosed, heart disease, rendering the
heightened standard of review will not heart disease a “pre-existing” condition for
countenance such a strained interpretation. purposes of excluding the policy holder
In a case of heightened review, where the from LTD benefits. The problem with using
plan administrator is not afforded complete, this type of ex post facto analysis is that a
freewheeling discretion, we must be whole host of symptoms occurring before a
especially mindful to ensure that the “correct” diagnosis is rendered, or even
administrator’s interpretation of policy suspected, can presumably be tied to the
language does not unfairly disadvantage the condition once it has been diagnosed. Thus,
policy holder. ERISA was enacted “‘to any time a policy holder seeks medical care
7
of any kind during the look-back period, the insurance policy. In other
“symptom” that prompted him to seek the words, we must determine
care could potentially be deemed a symptom whether it is possible to
of a pre-existing condition, as long as it was receive treatment “for” a
later deemed consistent with symptoms condition without knowing
generally associated with the condition what the condition is.
eventually diagnosed.
Id. at 162.
The language at issue before us
Addressing this issue, the Lawson
revolves around the meaning of two terms:
panel held that the word “for” “has an
“for” and “symptom.” The Hartford Plan
implicit intent requirement” and that “it is
defines neither. We have already
hard to see how a doctor can provide
undertaken the analysis of “for” in Lawson,
treatment ‘for’ a condition without knowing
301 F.3d 159. There, Elena Lawson was
what that condition is or that it even exists.”
taken to the emergency room two days
Id. at 165. In reaching this conclusion, the
before her insurance policy became
Court engaged in a detailed analysis of other
effective, for what was initially diagnosed as
courts’ renderings of the word “for” in
a respiratory tract infection. One week later,
similar contexts, noting that although there
after the effective date of her policy, she was
are differing readings of what constitutes
correctly diagnosed as having leukemia.
receiving treatment “for” a condition, the
The insurance company denied coverage of
word “for” itself must, by definition, include
medical expenses relating to the leukemia on
a notion of intentionality. See id. (“‘for’ is
the ground that it was a pre-existing
‘used as a function word to indicate
condition for which Lawson received
purpose’” (quoting Webster’s Ninth New
treatment prior to the effective date.
Collegiate Dictionary 481 (1986))).
Lawson’s parents, acting on her behalf, sued
for breach of contract and we affirmed the As quoted above, the Plan at issue
District Court’s grant of their motion for here defines a pre-existing condition, in
summary judgment. relevant part as:
The Lawson panel framed the issue in (2) any manifestations,
the following way: s ym ptoms, find ing s, o r
aggravations related to or
The central issue in this case
resulting from such accidental
is whether receiving treatment
bodily injury, sickness, mental
for the symptoms of an
illness, pregnanc y, or
unsuspected or misdiagnosed
substance abuse;
condition prior to the effective
date of coverage makes the for which you received
condition a pre-existing one Medical Care during the 90
under the terms of the day period that ends the day
8
before: review obtains. Upon finding—as we have
in this case—that the administrator’s
(1) your effective date of
discretion was not unlimited and that the
coverage
heightened standard of review applies, we
(italics supplied). would be compelled to declare that
Hartford’s denial of benefits was unjustified
McLeod contends that in order to have been
since it is undisputed that McLeod did not
properly denied coverage under the Plan, she
receive treatment for MS during the look-
would have had to receive care from a
back period. There is, however, one
physician for the MS or for the
significant difference between McLeod’s
“manifestations, symptoms, findings, or
case and the one presented in Lawson: Here,
aggravations” of MS during the look-back
the policy language is more precise and
period. She submits that intentionality is a
encompasses a broader range of elements in
key component of receiving medical care
its definition of what constitutes a pre-
and that the presence of the word “for” in
existing condition than did the policy at
the policy language is crucial.
issue in Lawson.
In Pilot Life Insurance. Co. v.
In the Plan at issue here, a pre-
Dedeaux, 481 U.S. 41, 56 (1987), the
existing condition includes medical care
Supreme Court noted that Congress intended
received for any “manifestations, symptoms,
that “a federal common law of rights and
findings, or aggravations related to or
obligations under ERISA-regulated plans
resulting from such accidental bodily injury,
would develop.” Importing and extending
sickness, mental illness, pregnancy, or
the logic of Lawson, a contract case, into the
substance abuse” (emphasis added) as
ERISA context, is consistent with that
opposed to the policy at issue in Lawson
teaching. Finding the Lawson analysis
which defined a pre-existing condition as a
persuasive, we construe the term “for” to
“Sickness, Injury, disease or physical
conta in the Lawson eleme nt of
condition for which medical advice or
intentionality. Given that construction,
treatment was recommended by a Physician
Hartford’s interpretation must be rejected at
or received from a Physician” during the
all events, and certainly when a heightened
relevant look-back period. Lawson, 301
standard of review applies.
F.3d at 161.5
B.
If McLeod’s case presented nothing 5
The Hartford Plan’s definition of
more than a dispute over whether she had
“medical care” is also extremely broad and
received treatment for MS (as opposed to the
seems to encompass virtually any contact
symptoms of MS), then the only question
between the patient and the physician,
before us would be whether we could apply
even absent some affirmative act on the
the straightforward logic of Lawson to an
part of the physician: “M edical Care is
ERISA case where the heightened Pinto
received when: (1) a Physician is consulted
9
Hartford places great stock in the certainly thought that to be the case when it
difference in the language of the two stated that: “The Plan does not require that a
policies, arguing that “[u]nlike the Plan in participant’s disabling condition be
this case, the Lawson policy’s definition of diagnosed within the look-back period in
pre-existing condition did not encompass order for it to be considered a ‘Pre-Existing
treatment for symptoms of a sickness.” At Condition’; rather, it merely requires that a
first blush, this distinction seems participant receive medical care for a
noteworthy, and the fact that the Hartford symptom or manifestation of the condition
P l a n i n c l u d es w o r d s s u c h as during the look-back period.” McLeod v.
“manifestations” and “symptoms,” which the Hartford Life & Accident Ins. Co., 247 F.
policy at issue in Lawson did not, seems Supp. 2d 650, 660 (E.D. Pa. 2003). The
potentially significant. 6 The District Court Court explained that it was “eminently
reasonable for Hartford to conclude that
when Plaintiff sought treatment from Dr.
or medical advice is given; or (2) treatment DiGregorio for numbness in her left side in
is recommended, prescribed by, or February 1999, Plaintiff sought treatment for
received from a Physician.” At oral a ‘manifestation’ or ‘symptom’ of her MS.”
argument, we raised the question whether Id. We disagree.
McLeod was precluded from receiving
LTD benefits merely for having consulted As stated above, Hartford does not
with a physician during the relevant look- define the term “symptom.” A dictionary
back period. We conclude, however, that definition of the word “symptom” reads:
the language of the policy dictates that the Symptom: 1. Med. A
medical care at issue must be specifically functional or vital
tied to the pre-existing condition or to the phenomenon of disease; any
symptoms thereof in order for the perceptible change in any
exclusion to apply: “Pre-existing condition organ or function due to
means: (1) any accidental bodily injury, morbid conditions or to
sickness . . . or (2) any manifestations, morbific influence, especially
symptoms . . . for which you received when regarded as an aid in
Medical Care . . . .” (emphasis added). As diagnosis. Symptoms differ
we discuss below, just as a symptom can from signs in the diagnosis of
only be a symptom if the underlying a disease in that the former
condition causing the symptom is known are functional phenomena,
or suspected, so too medical care for that while the latter are incidental
condition or symptom can only be received or experimental.
if the condition is known or suspected.
2. That which serves to
6
We limit our discussion to the term
“symptom” because “symptom” was the
term focused on by Hartford both in its brief and at oral argument.
10
point out the existence symptoms of a not-yet-
of something else; any dia gnose d c ondition as
sign, token, or equivalent to treatment of the
indication. u n d e r l yi n g c o n d i t i o n
ultimately diagnosed might
Funk & Wagnalls New Standard Dictionary
open the door for insurance
of the English Language 2246 (1942).
companies to deny coverage
It appears to us from this definition f or an y co n d i t io n the
that a “symptom” is a meaningful term only symptoms of which were
because it is a “symptom” in relation to treated during the
something else. McLeod’s symptom of exclusionary period. “To
numbness became relevant as one the Plan permit such a backward-
used to exclude her from coverage based on looking reinterpretation of
a pre-existing condition only once it was symptoms to support claims
deemed a “symptom of MS.” If it were just denials would so greatly expand the
a random “symptom” of some undiagnosed definition of preexisting condition as to
ailment, then Hartford would not be make that term meaningless: any prior
concerned with it. Given that the symptom symptom not inconsistent with the ultimate
becomes a factor in the exclusion process diagnosis would provide a basis for denial.”
only once it is tied to the diagnosis of the
301 F.3d at 166 (quoting In re Estate of
sickness, in this case MS, we do not see on
Monica Ermenc, 585 N.W .2d 679, 682 (Wis.
what basis Hartford can successfully argue
Ct. App. 1998)).
that there exists a significant difference
between the language of the Hartford Plan While this statement is dicta, it was
and the language of the insurance policy in considered dicta, which we find persuasive.
Lawson. Indeed, the Hartford Plan still Consistent with Lawson’s persuasive
bases the exclusion on “symptoms . . . for reasoning, and the foregoing explanation of
which you received Medical Care.” the rationale of applying it to an ERISA
(emphasis added). This construction simply context, we hold that the phrase “symptoms
begs the obvious question: symptoms of . . . for which you received M edical Care” in
what? Hartford offers no satisfactory the Hartford policy necessarily connotes an
answer to this question. intent to treat or uncover the particular
ailment which causes that symptom (even
In Lawson, we sought to avoid
absent a timely diagnosis), rather than some
precisely the type of ex post facto denial of
nebulous or unspecified medical problem.
benefits that Hartford has undertaken here:
To hold otherwise would vitiate any
Although we base our meaningful distinction between symptoms
decision on the language of which are legitimately moored to an
the policy, we note that “accidental bodily injury, sickness, mental
considering treatment for illness, pregnancy, or episode of substance
11
abuse,” and those which are not. It is simply MS to be revealed through the various
not meaningful to talk about symptoms in testing McLeod underwent during the look-
the abstract: Seeking medical care for a back period, none of the tests ever linked the
symptom of a pre-existing condition can symptoms she was experiencing to MS. We
only serve as the basis for exclusion from therefore conclude that the District Court
receiving benefits in a situation where there erred as a matter of law when it held that
is some intention on the part of the physician Hartford’s determination that McLeod had
or of the patient to treat or uncover the received medical care for symptoms of MS
underlying condition which is causing the during the look-back period was not
symptom. arbitrary and capricious.
Such a holding does not mean that we
require that a “correct” diagnosis be made
IV. Conclusion
before the effective date of a policy in order
for an insurance company to be able to deny For the foregoing reasons, the
coverage based on a pre-existing condition. judgment of the District Court will be
In Lawson, we explained the difference reversed and the case remanded to the
between a “suspected condition without a District Court with instructions to enter an
confirmatory diagnosis” and “a misdiagnosis order denying Hartford’s motion for
or an unsuspected condition manifesting summary judgment and granting McLeod’s
non-specific symptoms.” 301 F.3d at 166. motion for summary judgment, and for
Despite numerous consultations with calculation of the LTD benefits due to
physicians and multiple MRIs which could McLeod.
have potentially revealed the existence of
MS before the effective policy date, neither
McLeod nor her physicians ever suspected
that she was suffering the effects of MS.
Indeed, as we have explained above,
McLeod received on-going treatment for a
host of other ailments for the years
preceding the MS diagnosis with no
suspicion on anyone’s part that she was not
receiving proper medical care. Under those
circumstances, we are confident that
McLeo d’s case is one either o f
“misdiagnosis” or of “unsuspected condition
manifesting non-specific symptoms” rather
than a “suspected condition without a
confirmatory diagnosis.” While there were
multiple opportunities for the presence of
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