     Case: 18-60753      Document: 00514991269         Page: 1    Date Filed: 06/11/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                    No. 18-60753                            FILED
                                  Summary Calendar                      June 11, 2019
                                                                       Lyle W. Cayce
                                                                            Clerk
MARCIA L. SMITH,

              Plaintiff - Appellee

v.

UNITED OF OMAHA LIFE INSURANCE COMPANY; MUTUAL OF
OMAHA INSURANCE COMPANY,

              Defendants - Appellants




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC. No. 3:17-CV-450


Before STEWART, Chief Judge, and OWEN and OLDHAM, Circuit Judges.
PER CURIAM:*
       Marcia L. Smith filed this action against United of Omaha Life
Insurance Co. (“United”) challenging their denial of her claim for long-term
disability benefits under an employee benefits plan governed by the Employee
Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq. Both
parties filed cross-motions for summary judgment and the district court


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                 No. 18-60753
rendered summary judgment in favor of Smith. For the reasons below, we
AFFIRM.
                                       I.
      Smith was hired by Arlington Properties, Inc. on February 6, 2016, as a
property manager for a local apartment complex. As part of her employment,
she was a beneficiary under an ERISA long-term disability plan which became
effective March 1, 2016. Benefits under the plan are funded through a group
policy issued by United, the plan administrator. The policy included the
following exclusion for pre-existing conditions:
      We will not provide benefits for Disability:

      (a) caused by, contributed to by, or resulting from a Pre-existing
      Condition; and

      (b) which begins in the first 12 months after You are continuously
      insured under this Policy.

      A Pre-existing Condition means any Injury or Sickness for which
      You received medical treatment, advice or consultation, care or
      services including diagnostic measures, or had drugs or medicines
      prescribed or taken in the 3 months prior to the day You become
      insured under this Policy.

      On June 1, 2016, three months after the effective date of her coverage,
Smith was diagnosed with metastatic ovarian cancer. She had surgery on June
16, 2016, including an exploratory laparotomy and major tumor debulking,
followed by chemotherapy. On June 30, 2016, Smith requested payment of
short-term disability benefits, which was approved for a period of twenty-six
weeks. However, her subsequent request for payment of long-term disability
benefits was denied. By letter dated January 13, 2017, United advised Smith
that long-term disability benefits were not payable because her “current
disabling condition is considered a Pre-existing Condition and excluded under

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                                  No. 18-60753
the policy.” Smith sought administrative review of the denial, and on March
14, 2017, United advised it was upholding the denial decision.
      Thereafter, Smith filed the present action seeking judicial review of
United’s decision pursuant to 29 U.S.C. § 1132(a)(1)(B), which permits a plan
beneficiary to bring a civil action “to recover benefits due to [her] under the
terms of [her] plan, to enforce [her] rights under the terms of the plan, or to
clarify [her] rights to future benefits under the terms of the plan.” Both parties
filed cross-motions for summary judgment and the district court concluded that
United’s denial of Smith’s claim for long-term disability benefits was an abuse
of discretion and rendered summary judgment in favor of Smith. United
appealed.
                                       II.
      We review a district court’s grant of summary judgment de novo. High v.
E-Systems Inc., 459 F.3d 573, 576 (5th Cir. 2006) (citation omitted). Summary
judgment is appropriate if the movant shows that there is no genuine dispute
as to any material fact and the movant is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). “When, as here, the language of the plan grants
discretion to an administrator to interpret the plan and determine eligibility
for benefits, a court will reverse an administrator’s decision only for abuse of
discretion. High, 459 F.3d at 576 (citation omitted). “We reach a finding of
abuse of discretion only where ‘the plan administrator acted arbitrarily and
capriciously.’” Holland v. Int’l Paper Co. Ret. Plan, 576 F.3d 240, 247 (5th Cir.
2009) (quoting Meditrust Fin. Servs. Corp. v. Sterling Chems., Inc., 168 F.3d
211, 214 (5th Cir. 1999)). “A plan administrator’s decision to deny benefits is
arbitrary and capricious when it is made without a rational connection to the
facts and evidence.” Smith v. Life Ins. Co. of N. Am., 459 F. App’x 480, 483 (5th
Cir. 2012) (per curiam) (unpublished) (citation omitted).


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                                 No. 18-60753
                                   III.

      United acknowledges that Smith was not diagnosed with metastatic
ovarian cancer until June 1, 2016, three months after the pre-existing
condition exclusion period, or “look-back” period, had ended. It submits,
however, that her claim was properly denied, as the medical records show that
she received treatment during the look-back period for a recurrent right
pleural effusion, which was a symptom of the ovarian cancer. Smith does not
deny that the recurrent pleural effusion which she experienced, and for which
she sought treatment during the look-back period, was caused by the cancer.
She argues, though, that since the condition which has caused her disability is
not pleural effusion but rather metastatic ovarian cancer, and since she did not
receive medical treatment, advice or consultation, care or services including
diagnostic measures, or have drugs or medicines prescribed or taken for
metastatic ovarian cancer in the three months before she became insured
under the policy, then her claim was wrongly denied.
      We agree. The district court, in its detailed opinion, laid out the
counterproductivity of adopting United’s position by citing the reasoning in
Estate of Ermenc v. American Family Mutual Insurance Co., 585 N.W.2d 679,
682 (Wis. Ct. App. 1998):
      [T]he fact that [Plaintiff] had some symptoms which later proved
      consistent with cancer is insufficient to support a denial on
      preexistence grounds. [Plaintiff’s] symptoms were also consistent
      with a variety of other ailments she did not ultimately suffer, such
      as the peptic ulcer her doctor suspected. 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 symptom not
      inconsistent with the ultimate diagnosis would provide a basis for
      denial. Such an interpretation would render insurance contracts
      nonsensical.


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                                   No. 18-60753
      Among the vast cases the district court cites, Ross v. Western Fidelity
Insurance Co., 872 F.2d 665 (5th Cir. 1989), decision clarified on reh’g, 881 F.2d
142 (5th Cir. 1989), remains our guidepost. In Ross, we rejected the insurance
company’s defense based on the pre-existing clause, reasoning that:
      [s]ince the heart defect was not diagnosed during [Plaintiff’s] first
      week, the advice and treatment she received at that time could not
      have been for that condition; rather, pulmonary hypertension was
      the only condition diagnosed and treated at that time. Thus, the
      plain language of the clause leads to the conclusion that it does not
      exclude coverage of the heart defect.

Id. at 669 (emphasis in original).

      Contrary to United’s belief, Ross did not, nor are we, superimposing a
requirement that there be a preliminary diagnosis of the disabling condition
for it to be a pre-existing condition:
      Our holding is not to be interpreted to say that diagnosis is always
      required in order for the underlying condition to be treated, but
      there is at least a reasonable argument that . . . treatment for a
      specific condition cannot be received unless the specific condition
      is known. One who has been treated for chicken pox has not
      necessarily been treated for small pox.

881 F.2d at 144; see also Bergeron v. ReliaStar Life Ins. Co., No. 13-6128, 2015
WL 225229, at *14 (E.D. La. Jan. 15, 2015) (“[F]or the purposes of what
constitutes a pre-existing condition, it seems that a suspected condition
without a confirmatory diagnosis is different from a misdiagnosis or an
unsuspected condition manifesting non-specific symptom[s].”) The Third
Circuit agrees. In McLeod v. Hartford Life & Accident Insurance Co., 372 F.3d
618, 628 (3d Cir. 2004), the court held that seeking medical care for a symptom
of a pre-existing condition can serve as a basis for denying coverage when there
is some “intent to treat or uncover the particular ailment which causes that
symptom (even absent a timely diagnosis), rather than some nebulous or

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                                         No. 18-60753
unspecified medical problem.” “The problem with using [an] ex post facto
analysis is that a whole host of symptoms occurring before a ‘correct’ diagnosis
is rendered, or even suspected, can presumably be tied to the condition once it
has been diagnosed.” Id. at 625. At the very least, the condition must have been
reasonably suspected. See Lawson v. Fortis Ins. Co., 301 F.3d 159, 165 (3d Cir.
2002) (“In short, it is hard to see how a doctor can provide treatment ‘for’ a
condition without knowing what that condition is or that it even exists.”)
       Here, it is clear that Smith received “medical treatment, advice or
consultation, care or services, including diagnostic services” for the pleural
effusion during the look-back period. 1 But the condition that caused her
disability was not pleural effusion; it was metastatic ovarian cancer. This is
the condition for which she must have had treatment, care, or services to
trigger the pre-existing condition exclusion. Although it is undisputed that
Smith’s pleural effusion was caused by the metastatic ovarian cancer, pleural
effusion can be caused by any number of conditions, 2 her symptoms were non-
specific to metastatic ovarian cancer, 3 and the medical records do not indicate
that her medical providers believed the pleural effusion was likely caused by
metastatic ovarian cancer. Thus, United could not reasonably have concluded
that she received treatment “for” metastatic ovarian cancer during the look-
back period. Mitzel v. Anthem Life Ins. Co., 351 F. App’x 74, 84 (6th Cir. 2009)



       1 Smith received an X-ray, CT scan, and a diagnostic thoracentesis to extract the
pleural fluid for further testing.

       2 In connection with its initial review of Smith’s claim for long-term benefits, United
referred Smith’s medical records to Terri Cortese, R.N., for an internal medical review. Nurse
Cortese advised that “[p]leural effusions can be seen associated with congestive heart failure,
hypoalbuminemic states like cirrhosis, malignancy, infection such as pneumonia, and
pulmonary embolism.”

       3   Smith was initially treated for pneumonia as the cause of her pleural effusion.

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(finding it “unreasonable” to deny a disability claim when the doctor during
the look-back period “did not suspect, diagnose, or treat the specific disability
for which she eventually applied for benefits.”). United’s conclusion to the
contrary is arbitrary and capricious. 4
                                            IV.

       The district court’s judgment is AFFIRMED.




       4 United makes a secondary argument: The district court did not follow the three-
pronged test under Wildbur v. ARCO Chemical Co., 974 F.2d 631, 638 (5th Cir. 1992), for
determining whether despite the legally incorrect interpretation the administrator abused
its discretion. Although encouraged, reviewing courts are not “rigidly confined” to the
Wildbur test in every case. See Duhon v. Texaco, Inc., 15 F.3d 1302, 1307 n.3 (5th Cir. 1994)
(relying on Wildbur’s notation that “[a]pplication of the abuse of discretion standard may
involve [the] two-step process.” (quoting Wildbur, 974 F.2d at 637) (emphasis added)).
Moreover, the district court extensively discussed its reasoning for its abuse of discretion
finding.
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