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“Different” Symptoms Still Deemed Pre-existing Condition – E.D.Ca.

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  • “Different” Symptoms Still Deemed Pre-existing Condition – E.D.Ca.

    “Different” Symptoms Still Deemed Pre-existing Condition – E.D.Ca.

    Attached is a case out of the Eastern District of California, Haddad v. SMG Long Term Disability Plan, et. al. In this case, plaintiff seeks short-term disability benefits under an ERISA governed plan. Plaintiff’s disabling condition is left-sided pain and limitations related to his C5-6 disk. Defendant limited plaintiff’s STD benefits to six weeks under the plan as it asserted that plaintiff conditions were pre-existing conditions because he suffered from a herniated disc at C5-6 which caused right-sided radiculopathy and for which plaintiff underwent surgery. Plaintiff argued that the surgery did, in fact, resolve the right-sided symptoms, but that after the surgery he began suffering the left-sided symptoms. Plaintiff argued that the left-sided symptoms were new and different from the conditions that he was treated for during the pre-existing period and, therefore, his disability was not pre-existing. Plaintiff further argued that the right-sided symptoms were not disabling, but the left-sided conditions were. The court agreed that his disabling conditions were pre-existing.

    Here the relevant facts are not in dispute. The language of the Policy is not in dispute. The “caused or contributed to” language from the Plan is clear and unambiguous. It was applied by Hartford to the facts based on substantial evidence connecting Haddad’s left-side symptoms, which occurred immediately after the initial operation to address his pre-existing disk disease condition, to his pre-existing disk disease.

    Haddad encourages me to follow Fought v. UNUM Life Ins. Co. Of Am., 379 F.3d 997 (10th Cir. 2004). There, following elective heart surgery, the plaintiff developed a severe staph infection. The district court granted summary judgment to the insurer who had denied the disability claim, concluding that plaintiff “suffered from a pre-existing coronary artery condition that ‘caused,’ ‘contributed to,’ or ‘resulted’ in” her disability because the staph infection was a result of the coronary bypass surgery. Id., at 999 - 1001. The Tenth Circuit reversed. As framed by the Tenth Circuit:

    The major difficulty presented by this case is that UNUM’s policy excludes coverage for disabilities caused by pre-existing conditions, whereas it seeks here to apply its policy as if it excludes coverage for disabilities caused by complications from surgery for pre-existing conditions. Surgery is not, of course, a pre-existing condition, but at most a necessary consequence of a pre-existing condition. In essence, therefore, this case becomes a matter of where we draw the line on chains of causation.

    Id. at 1009. The chain of causation there contained five very attenuated stages. Id. (“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.”). The Tenth Circuit concluded that accepting that extremely attenuated causal link “would effectively render meaningless the notion of the pre-existing condition clause by distending the breadth of the exclusion.” Id. at 1010. Rejecting the long chain of causal links in Fought’s case, with intervening causes, the court instead held that “the disabling condition must be substantially or directly attributable to the pre-existing condition.” Id. at 1011; see also Cash v. Wal-Mart Group Health Plan, 107 F.3d 637 (8th Cir.1997) (applying pre-existing condition exclusion where the pre-existing condition (diverticula) was a “necessary precursor” and cased a complication and secondary condition (diverticulitis) to develop).

    As Hartford argues, and contrary to Haddad’s interpretation, the Fought case actually supports application of the pre-existing condition exclusion here. First, the causal chain with Haddad’s disability is much shorter and does not involve unanticipated intervening causes or results such as those that flowed from the faulty sterilization/sanitation resulting in Fought’s staph infection. Here, the disabling conditions flow directly from the fact that Haddad had a diseased C5-6 disk that required surgery. That the surgery did not work and/or exacerbated Haddad’s symptoms does not mean his disabling symptoms were not caused or contributed to by his C5-6 disk disease.

    Second, Haddad was advised that surgery to treat his diseased disk could result in spinal injury or failure of instrumentation. AR 1043. The Fought court distinguished cases which held that well-known complications from a disease – such as glaucoma following from diabetes – would trigger the pre-existing condition exclusion but unrelated “complications from treatment or surgery” would not. Id. at 1011. Here, Haddad had disk disease between the C5-6 vertebrae that caused radiculopathy of the C6 nerve, although that radiculopathy only caused symptoms on his right side. He had an operation to remove the diseased disk, but that surgery likely caused a connected and known complication, altering the nature and degree of his symptoms. 6
    Haddad also relies on McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618, 620 (3d Cir. 2004). There, interpreting slightly different language under a heightened abuse of discretion standard of review, the Third Circuit rejected an argument that “receiving medical care ‘for symptoms’ of a pre-existing condition encompasses receiving care for symptoms that no one even suspected were connected with the later diagnosed ailment but which were later deemed not inconsistent with it.” Id. at 624. In McLeod, the plaintiff was treated for numbness in her arm by a doctor who had for many years also treated plaintiff for “cardiac insufficiency” and for multiple bulging cervical discs. Id. at 621. Post-coverage, plaintiff was diagnosed with multiple sclerosis (MS), which in retrospect accounted for many if not most of her symptoms. Id. However, because McLeod had never been treated pre-coverage for her “condition” of MS and MS had never been considered a potential diagnosis, the fact that some of her MS-symptoms had been treated did not suffice to trigger the pre-existing condition exclusion. Id. at 628.

    The McLeod court’s analysis of different policy terms and an unsuspected condition is not apposite. Here, Haddad received pre-coverage care for symptoms of a diagnosed condition; C5-6 disk disease. That the symptoms of his disease were confined (pre-surgery) to his right side and after the unsuccessful treatment shifted to his left side and became more severe does not mean that his C5-6 disk disease and C6 root compression were not pre-existing.

    Finally, as opposed to the proximate cause standard adopted in Fought, in his response brief Haddad appears to advocate for application of the common law “process of nature” rule to define when a disability is “related to or resulting from” a pre-existing condition. 7 “Related to or resulting from” is not the relevant language at issue in this case. The language Hartford applied is “caused or contributed to by, a Pre-existing Condition.” AR 1075. The question, therefore, is not limited to what symptoms a natural progression of Haddad’s C5-6 disk disease might have caused, but whether his disabling C6 condition was “caused or contributed to” by his C5-6 disk disease. Hartford’s interpretation of the Plan language was reasonable. And its determination was based on substantial evidence that is not undermined by any dispute of fact or contrary evidence raised in the administrative appeals process by Haddad.
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