Although the Affordable Care Act (Obamacare) prohibits health insurers from excluding coverage based on pre-existing conditions, in disability insurance policies, pre-existing conditions continue to be excluded.A recent ruling from a federal court in Wisconsin, Kaiser v. United of Omaha Life Ins. Co., 2016 WL 379814 (W.D. Wisc. January 29, 2016,) does an excellent job of explaining what is and what is not a pre-existing condition
The claim involved an employee of Wisconsin Energy Conservation Corporation who had complained to her doctor of shoulder pain shortly before she began her employment with that organization. The doctor diagnosed tendinitis which was thought to be the result of shoveling snow and prescribed anti-inflammatory medication.When neither the medication or physical therapy improved the symptoms, the treating doctor ordered an MRI.By then, though, Kaiser had started working at Wisconsin Energy and her coverage commenced.
Tragically, the MRI revealed a large cancerous tumor which was ultimately fatal. When a claim for disability benefits was submitted, though, United of Omaha denied the claim as pre-existing, asserting that the doctor visits preceding the effective date of coverage triggered the exclusion. The court disagreed even though the treating oncologist agreed with the insurance company’s medical director that in retrospect the shoulder pain was due to the cancer.
The court looked to two appellate rulings involving breast cancer and pre-existing condition exclusions: Bullwinkel v. New England Mutual Life Insurance Company, 18 F.3d 429 (7th Cir. 1994) and Pitcher v. Principal Mutual Life Insurance Company, 93 F.3d 407 (7th Cir. 1996). The court distilled a test from reading those two decisions together: “although a plaintiff need not be definitely diagnosed with a condition during the [look-back] period[,] there at least must have been some concern or suspicion at that time that the observed symptoms were caused by the particular condition in order for the patient to be considered as being treated or seen for the particular condition.” (citing Goerig v. Phoenix Home Life Mut. Ins. Co., No. 97 C 1890, 1998 WL 801793, at *7 (N.D. Ill. Nov. 13, 1998)). The court pointed to rulings from the First, Third and Sixth Circuits that adopted the same test: 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.’ “); Lawson v. Fortis Ins. Co., 301 F.3d 159, (3d Cir. 2002) (rejecting pre-existing condition denial because “it does not make sense to say that [the plaintiff] received treatment ‘for’ leukemia when the actual condition was not suspected”); Hughes v. Boston Mut. Life Ins. Co., 26 F.3d 264, 269 (1st Cir. 1994) (requiring “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).
The court focused on the Lawson ruling, which contained the following discussion:
When a patient seeks advice 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 in Bullwinkel[, 18 F.3d 429] ) 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 an intent to seek or provide treatment or advice “for” a particular disease has been manifested. 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.
Id. at 166.
Following the guidance from those rulings, the court pronounced:
Unlike LoCoco, there is nothing in this record to support a finding that Dee’s medical treatment providers–her primary doctor at that time, that doctor’s nurse, or the physical therapist–suspected that Dee’s shoulder pain was due to cancer. Their contemporaneous notes show that a cancer diagnosis was not even on the radar screen. Instead, Dee received medical treatment and was prescribed medication for shoulder pain. During the entire three month period pre-dating her coverage, neither her physicians nor Dee had any reason to suspect that her symptom of shoulder pain was due to cancer. To the contrary, everyone suspected during this period that Dee’s pain and loss of strength in her arm was due to overuse in shoveling snow or impingement / deterioration of her rotator cuff.
The court then added the coup de grace:
The fact that Dee was eventually diagnosed with cancer and that her shoulder pain “in retrospect” was caused by her cancer is not material to a determination of whether her medical care providers at the time of the medical treatment suspected cancer. (AR 67 (emphasis added).) “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 symptoms not inconsistent with the ultimate diagnosis would provide a basis for denial.” Lawson, 301 F.3d at 166 (internal citation and quotation marks omitted).
Consequently, the court ruled that the pre-existing condition exclusion was inapplicable and awarded benefits.