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What Are Pre-Existing Conditions?

In a recent Ohio federal court ruling, Linda Hines successfully challenged Unum's invocation of its pre-existing condition exclusion when she became disabled due to anisometropia, a neurologic condition where the brain is unable to coordinate the separate images generated by each eye.   Unum maintained that the cataract surgery Hines underwent during the 3-month lookback period prior to the effective date of her coverage related to the anisometropia.  In Hines v. Unum Life Ins. Co. of Am., 2018 WL 6599404 (N.D. Ohio December 17, 2018), the court overruled Unum's determination.  

Based on the language of the policy, the court had to determine whether the treatment Hines received during the three months prior to her coverage date constituted the receipt of "medical treatment, consultation, care or services, including diagnostic measures," that caused, contributed to, or resulted in her disabling condition. The court concluded that a treatment, which triggers a later condition is not a pre-existing condition regardless of the chain of causation.

After undergoing cataract surgery, Hines first complained about difficulty fusing the images from both eyes eight months later.  The condition worsened over the next few months.  Hines also had a cataract in her non-operated eye.

Unum maintained that the left-eye cataract was treated during the pre-existing condition lookback period and asserted the anisometropia was also excluded because "[t]he results of the [right-eye cataract surgery with monovision intraocular lens implantation] produced monovision resulting in the diagnosis of anisometropia."

The court applied the arbitrary and capricious standard of review. Notwithstanding deferential review, the court initially observed the left-eye cataract was not a disabling condition so the court did not have to decide whether it should be considered as a pre-existing condition.  The court found that only the anisometropia was a condition that rendered her unable to work.  Hence, the court concluded, "Because the substantial evidence does not show that Plaintiff's left-eye cataract disabled her, Plaintiff's benefits could not be denied because of her early left-eye cataract, even if had been a pre-existing condition."

The court also held the anisometropia was not a disabling condition. The court observed:

By relying on eye refraction measurements that Plaintiff's doctor had recorded before her surgery during the look-back period, the first Unum reviewer improperly attributes an "anisometropia" diagnosis to Plaintiff's doctor by arbitrarily conflating the literal definition of anisometropia and its usual meaning in the medical context.

The court rejected Unum's rationale because 

"Anisometropia" literally means a difference in refractive power between the right eye and left eye. Because individuals rarely have perfect vision in both eyes, most people have some refractive differences between their eyes. As a result, doctors typically use the term "anisometropia" to denote symptomaticanisometropia--that is, when the refractive differences result in the brain's inability to fuse the separate images from the two eyes. Notably, Unum administrators and doctors, including the first Unum reviewer, seem to recognize that the term usually denotes symptomatic anisometropia, where the brain is unable to fuse images.

Castigating the insurer's rationale, the court thus concluded: 

Using the term's proper meaning, the evidence actually supports the opposite conclusion. Despite regular appointments since August 2013, the first time doctors report that Plaintiff has anisometropia or any difficulty fusing images is May 21, 2014.This is six months after the look-back period, and nine months after Plaintiff's right-eye cataract surgery. The anisometropia was not a pre-existing condition and thus cannot justify the benefits denial.

The court also rejected Unum's argument that the surgery for the right eye cataract "initiated the causal chain."  The court remarked: "The surgery cannot be a pre-existing condition; it is at most only a necessary consequence of the right-eye cataract pre-existing condition."  Moreover, the court found the anisometropia"can hardly be said to have been a foreseeable consequence of her right-eye cataract."  Thus, the court concluded that any relationship between the cataract surgery and the anisometropia was "too attenuated."

Although there is nothing particularly remarkable about this ruling, the court did an effective job of refuting Unum's rationale, particularly with respect to the argument that a later-developed condition could be excluded as a consequence of an earlier treatment.  The court cited Fought v. UNUM Life Ins. Co. of Am., 379 F.3d 997 (10th Cir. 2004) (per curiam), which is an excellent example of the issue. There, the court determined that despite plaintiff undergoing surgery to treat a pre-existing cardiac condition, the surgery itself was not a pre-existing condition, nor was the infection that resulted from the surgery.  Fought held:

In practice, however, UNUM's arguments rely upon classic but/for causation: But for the coronary artery disease, none of the rest of the chain of events would have happened. Or, as Ms. Fought herself put it: "It is kind of like saying 'If I hadn't went outside in the rain, I wouldn't have got struck by lightening. [sic]' " Aplt's App. at 157 (Letter to New Mexico Public Relations Commission, dated Jan. 31, 2000). 

For Ms. Fought, there were at least five intervening stages between the pre-existing coronary artery disease and the disability: The failure of non-surgical alternatives, initially successful elective surgery, later complications from that surgery, initially successful treatment of those complications, and finally a drug resistant infection due to those complications, which in itself may have been caused by the intervening presence of Staphylococcus aureus due to faulty sterilization, sanitation, etc. UNUM seems to suggest that it need not cover anything for which it can construct a but/for story. If we were to accept this contention, we would effectively render meaningless the notion of the pre-existing condition clause by distending the breadth of the exclusion.

379 F.3d at 1009.  Other examples include Vander Pas v. UNUM Life Ins. Co. of Am., 7 F.Supp.2d 1011, 1012-13 (E.D. Wis. 1998), which held that taking medication is not the same as having a condition. 

Further, according to Lawson v. Fortis, 301 F.3d 159 (3d Cir. 2002), the insured must actually have a condition before it can be considered pre-existing.  Also see, Bradshaw v. Reliance Standard Life Ins. Co., 2017 WL 3774536 (11th Cir. 2017)  (Non-precedential), where the court rejected an insurer's determination that a stroke caused by pre-eclampsia was a pre-existing condition because the plaintiff was pregnant when the policy went into effect.  Also, in Goetz v. Greater Georgia Life Ins.Co., 2009 U.S.Dist.LEXIS 73665 (E.D.Tenn. August 19, 2009) the court rejected an insurer's claim that prior treatment for alcohol abuse constituted a pre-existing condition when the insured became disabled due to a subdural hematoma which was caused by a fall.  Also see, Meyer v. Unum Life Ins. Co. of Am., 2015 WL 1470447, 2015 U.S. Dist. LEXIS 42092 (D. Kan. March 31, 2015) (treatment for atrial fibrillation and hypertension not a basis to trigger pre-existing condition exclusion where insured later suffered a stroke).

The court's discussion of attorneys' fees was also illuminating.  The court identified several ways in which Unum acted improperly in denying the claim.  Pointing to the same issues in other cases should provide a roadmap to the same results.

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