June 24, 2013
By Mark D. DeBofsky
Mark D. DeBofsky is a name partner of Daley, DeBofsky & Bryant. He handles civil and appellate litigation involving employee benefits, disability insurance and other insurance claims and coverage, and Social
When to apply a pre-existing condition exclusion is often a battleground issue in disability benefit disputes as illustrated by Kutten v. Sun Life Assur.Co. of Canada, 2013 U.S.Dist.LEXIS 79546 (E.D.Mo. June 6, 2013). There, the court rejected Sun Life's contention that because the claimant was taking vitamin supplements, he was receiving "medical treatment" for his condition.
The relevant policy provision stated:
"Pre-existing condition means during the three months prior to the employee's effective date of insurance the employee received medical treatment, care or services, including diagnostic measures or took prescribed drugs or medicines for the disabling condition."
Although the plaintiff had been covered by a prior policy issued by Aetna, Sun Life tried to limit its exposure to the benefits available under the prior policy. The court held that Sun Life's interpretation
Marc Kutten had suffered from a progressive eye disease, retinitis pigmentosa, for nearly 20 years. For more than 10 years, Kutten took 15,000 units per day of an over-the-counter nonprescription vitamin A supplement recommended by his doctor, but he did not take any prescription medicine, nor did he see a doctor for that condition during the three months prior to the effective date of the Sun Life policy.
Ultimately, that condition resulted in Kutten's disability. Applying a deferential standard of review, the court nevertheless sided with the plaintiff because it found that Sun Life's interpretation "renders some language of the plan meaningless or internally inconsistent and is
contrary to the clear language of the plan." The court found the disjunctive "or" prior to the phrase "took prescribed drugs or medicines for the disabling condition" was significant.
The first part of the clause was clearly inapplicable since Kutten had not been to the doctor. The court also found the word "prescribed" was critical. The vitamin A supplement was not prescribed and the court determined that "[a] doctor recommending a person take vitamin A for retinitis pigmentosa is more akin to a doctor suggesting someone with digestive issues eat apples because they are high in fiber than it is like receiving a prescribed drug."
The court added that the phrasing of the policy meant that even prescribed medications aren't considered "medical treatment" under the plan, as shown by the disjunctive language discussed above. If
prescribed medication is not considered medical treatment, it would be internally inconsistent to say that vitamin supplements - which require even less medical intervention - would constitute "medical treatment."
Accordingly, the court awarded benefits.
The court's analysis is unique. In a ruling that reached a somewhat different conclusion on this issue, another court found that a claimant with a swallowing disorder had a "pre-existing condition" because his doctor had recommended that he use Ensure as a dietary supplement, which the court deemed "a medically-prescribed treatment for [the plaintiff's]
difficulty swallowing." Levin v. Sun Life Assur. Co., 2008 U.S. Dist. LEXIS 24411 (N.D. Ill. Mar. 27, 2008).
In another case, Vander Pas v. Unum Life Insur. Co., 7 F.Supp.2d 1011 (E.D.Wisc. 1998), the court rejected the contention that a prescription for the blood-thinner Coumadin constituted a pre-existing condition when the plaintiff later became disabled due to a subdural hematoma. The insurer tried to assert that taking Coumadin caused, or at least contributed to, his subdural hematoma and therefore constituted a pre-existing condition. However, the court found:
"Quite simply, Unum has not articulated a satisfactory explanation as to why a prescription drug such as Coumadin qualifies as a 'pre-existing
condition' within the meaning of the policy. The policy defines a pre-existing condition as a 'sickness or injury' for which the insured received medical attention or took prescription drugs during the relevant time period. Elsewhere, the policy defines 'sickness' as 'illness or disease.'
"'Injury' is defined as 'bodily injury resulting directly from an accident and independently of all other causes.' Although the pre-existing condition definition contains a reference to 'prescribed drugs,' the definition does not refer to prescription drugs as another type of prior 'condition,' but as part of a phrase modifying 'sickness or injury.' Coumadin, by itself, is neither a sickness nor an injury. Thus, a plain reading of the definition does not, without additional
explanation, support the interpretation which Unum appears to take for granted. 7 F.Supp.2d at 1018."
Other critical rulings on this issue include Pitcher v. Principal Mut. life Ins. Co., 93 F.3d 407 (7th Cir. 1996). There, the claimant suffered from a fibrocystic breast condition for many years before she had a
mammogram, which revealed a malignant breast tumor just days before the claimant's health insurance went into effect. The insurer subsequently denied the claimant's request for reimbursement of her breast cancer
treatments based on the policy's pre-existing condition exclusion of treatment or service received within 90 days of her becoming an insured under the policy. Id.
The 7th U.S. Circuit Court of Appeals held that the claimant's mammogram was not a treatment or service for breast cancer, defining "treatment" as taking steps "to remedy or improve a malady." Id. at 412.
Along the same lines, in Hall v. Cont'l Cas. Co., 207 F.Supp.2d 903, 908 (W.D. Wis. 2002), the court explained that individuals would be discouraged from seeking preventative medical care if considered to be receiving treatment for a pre-existing condition.
Finally, Lafferty v. Unum Life Ins.Co. of America, 2012 U.S.Dist.LEXIS 25956 (M.D.Pa. February 29, 2012), held that prophylactic measures to treat conditions that could later develop into a disabling condition is
not a reasonable basis to invoke pre-existing condition clause.
However, the issue of whether the taking of a prophylactic medication or other preventative treatment can be deemed the same as receiving
treatment for a condition that is not diagnosed until after coverage has gone into effect has yet to be developed by the courts of appeals.
Note: I represented the plaintiff in the Levin case cited in this