                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2004

McLeod v. Hartford Life
Precedential or Non-Precedential: Precedential

Docket No. 03-1744




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Recommended Citation
"McLeod v. Hartford Life" (2004). 2004 Decisions. Paper 542.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/542


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                                            Stief, Waite, Gross, Sagoskin & Gilman
                 PRECEDENTIAL               547 East Washington Avenue
                                            P.O. Box 274
 IN THE UNITED STATES COURT OF              Newtown, PA 18940
APPEALS FOR THE THIRD CIRCUIT
       ____________________                 Counsel for Appellant

             NO. 03-1744                    BRIAN P. DOWNEY(Argued)
         ___________________                Pepper Hamilton, LLP
                                            200 One Keystone Plaza
          SHIRLEY MCLEOD                    Harrisburg, PA 17108

                              Appellant     Counsel for Appellee Hartford Life &
                                            Accident Insurance Company
                     v.
                                            LAWRENCE M . KELLEY
 HARTFORD LIFE AND ACCIDENT                 Mintzer, Sarowitz, Zeris, Ledva & Meyers
 INSURANCE COMPANY; GROUP                   1528 Walnut Street
LONG TERM DISABILITY BENEFITS               22nd Floor
  FOR EMPLOYEES OF VALLEY                   Philadelphia, PA 19102
MEDIA, INC; VALLEY MEDIA, INC.
                                            Counsel for Appellee Valley Media Inc.

           ________________                        _______________________

                                                          OPINION
On Appeal From the United States District          _______________________
Court for the Eastern District of
   Pennsylvania
                                            BECKER, Circuit Judge.
          (D.C. No. 01-cv-04295)
District Judge: Honorable Cynthia M. Rufe
  ______________________________                   This is an ERISA case. Plaintiff
                                            Shirley McLeod (“McLeod”), a former
        Argued January 12, 2004             employee of defendant Valley Media, Inc.,
                                            appeals the District Court’s grant of
Before: ALITO, CHERTOFF, and                summary judgment in favor of defendant
        BECKER, Circuit Judges.             Hartford Life and Accident Insurance Co.
                                            (“Hartford”) in which the Court upheld
          (Filed June 22, 2004 )            Hartford’s denial of long term disability
                                            (“LTD”) benefits to McLeod based upon
                                            Hartford’s interpretation of the language in
BARRY L. GROSS (Argued)                     McLeod’s benefits policy with Hartford.
The question before us on appeal is whether          video cassettes in a warehouse and involved
Hartford wrongfully determined that                  long periods of standing. McLeod signed up
McLeod, who had been receiving medical               for health insurance and other benefits under
care for various ailments since 1997, but            the Valley Media Plan (“the Plan”) with an
who was neither diagnosed with nor treated           effective date of April 1, 1999. Under the
specifically for multiple sclerosis (“MS”)           terms of the Plan, a participant is not entitled
until after her benefits plan became effective       to receive benefits for any disability that
in 1999, should have been excluded from              stems from a “pre-existing condition.” In
coverage due to the existence of a “pre-             relevant part, the Plan provides that:
existing condition,” namely MS. Consistent
                                                            No benefit will be payable
with our opinion in Lawson ex rel. Lawson
                                                            under the Plan for any
v. Fortis Insurance Co., 301 F.3d 159 (3d
                                                            Disability that is due to,
Cir. 2002), we hold that despite language in
                                                            contributed to by, or results
the benefit plan aimed to cast a broad net as
                                                            from a Pre-existing Condition,
to what constitutes receiving medical care
                                                            unless such Disability begins:
for a “pre-existing condition,” McLeod did
                                                                   (1) after the last day of
not receive treatment “for” such a pre-
                                                            90 consecutive days while
existing condition prior to her effective date
                                                            insured during which you
of coverage because neither she nor her
                                                            receive no medical care for
physicians either knew or suspected that the
                                                            the Pre-existing Condition; or
symptoms she was experiencing were in any
way connected with MS.             Under the                         (2) after the last day of
heightened standard of review formulated in                 365 consecutive days during
Pinto v. Reliance Standard Life Insurance                   w h i c h y o u ha ve bee n
Co., 214 F.3d 377 (3d Cir. 2000), the                       continuously insured under
decision to deny McLeod LTD benefits was                    this Plan.
arbitrary and capricious and we will
                                                                 P r e - e x i s t i n g
therefore reverse the District Court’s grant
                                                            Condition means:
of summary judgment to Hartford, reverse
its denial of M cLeod’s motion for summary                  (1) any accidental bodily injury,
judgment on liability, and remand for                sickness, mental illness, pregnancy, or
calculation of benefits.                             episode of substance abuse; or
                                                     (2) any manifestations, symptoms, findings,
                                                     or aggravations related to or resulting from
      I. Facts and Procedural History
                                                     such accidental bodily injury, sickness,
       On January 26, 1998, McLeod was               mental illness, pregnancy, or substance
hired by Valley Media to fill a position             abuse;
described as “Operations – General
                                                            for which you received
Warehouse.” The job consisted of stocking
                                                            Medical Care during the 90

                                                 2
       day period that ends the day                  provided medical care for the numbness
       before:                                       during the February 1999 visit and that she
                                                     did not diagnose or otherwise suggest that
       (1) your effective date of coverage; or
                                                     McLeod might have MS at that time.
       (2) the effective date of a Change in         McLeod continued to seek treatment for her
       Coverage.                                     condition over the next several months from
                                                     Dr. DiGregorio, as well as from two
       Medical Care is received when:
                                                     neurologists, Drs. Emil Matarese and Clyde
       (1) a Physician is consulted or               Markowitz, and underwent a number of
       medical advice is given; or                   neurological evaluations and MRIs, none of
                                                     which produced a diagnosis of MS or even
       (2) treatment is recommended,
                                                     a suspicion that MS was a possible cause of
       prescribed by, or received from a
                                                     the numbness and other complaints.
       Physician
                                                             It was not until August 1999 that
               Treatment includes but
                                                     McLeod was finally diagnosed with MS, an
       is not limited to:
                                                     inflammatory disease of the central nervous
              ( 1 )    m e d i c al                  system. With the benefit of hindsight, a
       examinations, tests,                          number of physicians including her treating
       attendance or observation;                    physicians and a non-treating physician who
                                                     reviewed her medical record for Hartford,
              (2) use of drugs,
                                                     attributed McLeod’s various pre-coverage
       medicines, medical services,
                                                     symptoms and ailments to MS. 1 In March
       supplies or equipment.
(italics supplied).
                                                       1
                                                         For example, an evaluation by one of
        The issue in the case centers around
                                                     McLeod’s treating neurologists dated
the fact that on February 22, 1999, a date
                                                     October 27, 1999, after the MS diagnosis
that fell within the 90 day period that ended
                                                     had already been made, states:
the day before the effective date of coverage
—the        so-called        “look-back
                                                           [S]he developed the onset of
period”—McLeod consulted Dr. Eileen
                                                           intermittent pain and
DiGregorio because of numbness in her left
                                                           numbness in her left arm.
arm. Dr. DiGregorio had already treated
                                                           She had one attack then
McLeod for a number of years for cardiac
                                                           [1998] and another one in
insufficiency, and for multiple bulging
                                                           February [1999], both of
cervical discs whose presence had been
                                                           which resolved and then
confirmed by MRI evaluations. McLeod
                                                           most recently has been
had also been diagnosed with hypertension
                                                           having an aggressive attack
and had suffered several panic attacks. It is
                                                           starting in the late summer
unconstested both that Dr. DiGregorio
                                                           with numbness in both legs. .

                                                 3
2000, McLeod applied for short term                  application for LTD benefits on the grounds
disability (“STD”) benefits. She had last            that her disabling condition, MS, was a pre-
worked on January 28, 2000. The Attending            existing condition for which LTD benefits
Physician’s Statement completed by Dr.               were not payable under the Plan. Although
DiGregorio and submitted as part of                  the diagnosis of MS was not made until
McLeod’s application provides:                       August 1999, more than four months after
                                                     her effective date of coverage, Hartford
      Diagnosis: Multiple Sclerosis
                                                     concluded that McLeod had “received
      Subjective Symptoms: Severe pain               me dic a l [care] for manifestations,
      legs, feet, can’t stand long,                  symptoms, findings or aggravations relating
      paresthesias                                   to or resulting from Multiple Sclerosis
                                                     during the 90 day period prior to [her]
      Date of onset               of     this
                                                     insured effective date of April 1, 1999
      condition: 1997
                                                     [1/1/99-3/31/99]” when she saw Dr.
      Dates of treatment for this                    DiGregorio for left arm numbness on
      c o n d i t io n : P r o g r e s s i v e       February 22, 1999.
      symptoms since 1997
                                                             On November 2, 2000, McLeod
       McLeod’s claim for STD benefits               appealed this denial through an internal
was initially approved from February 4,              appeals mechanism. Hartford informed
2000 through February 17, 2000 and was               McLeod, by letter dated February 22, 2001,
then extended through May 4, 2000. At the            that it was upholding its determination that
time of the extension, McLeod was informed           “the Multiple Sclerosis was a Pre-existing
that benefits beyond May 4, 2000, would be           condition based on the ‘Manisfestations,
reviewed to determine her eligibility for            symptoms, findings, or aggravations related
LTD benefits. Hartford denied McLeod’s               to’ the Multiple Sclerosis.”
                                                            McLeod filed a timely appeal of that
                                                     decision, again in accordance with the Plan’s
               . . The constellation
                                                     grievance procedures. The appeal focused
               of her symptom[s] is
                                                     on McLeod’s claim that she had not received
               consistent with
                                                     treatment for MS during the look-back
               multiple sclerosis
                                                     period, since the MS had not yet been
               with a
                                                     diagnosed at that time. As part of the appeal
               relapsing/remitting
                                                     process, Hartford forwarded McLeod’s file
               onset and now
                                                     to the University Disability Consortium for
               possibly a secondary
                                                     an independent medical review. The review
               progressive course
                                                     was conducted by Dr. Brian M ercer, a
               with this most recent
                                                     neurologist. As part of the process, Dr.
               attack being
                                                     Mercer reviewed M cLeod’s medical
               prolonged and
                                                     information and spoke to her treating
               progressing.

                                                 4
physicians, Drs. DiGregorio and Markowitz.            Appeal on March 14, 2003. The Court had
Based on his review of the medical records            jurisdiction pursuant to 28 U.S.C. § 1331
and his discussions with McLeod’s treating            because the complaint sought benefits under
physicians, Dr. Mercer concluded that “the            29 U.S.C. § 1132(a)(1)(B). We have
records indicate that [McLeod] was treated            appellate jurisdiction pursuant to 28 U.S.C.
on 2/22/99 for left arm numbness, which               § 1291.
was a symptom and manifestation of her
multiple sclerosis, albeit not yet diagnosed at
that time.” In consideration of all the                          II. Standard of Review
information before it, Hartford affirmed its
                                                             Our review of the grant of summary
decision to deny LTD benefits.
                                                      judgment is plenary. See Shelton v. Univ. of
       McLeod then filed a complaint in the           Med. & Dentistry of N.J., 223 F.3d 220, 224
District Court alleging claims of interference        (3d Cir. 2000). We apply the same standard
with protected rights (Count I); failure to           of review to Hartford’s decision to deny
award benefits due under the terms of the             LTD benefits to McLeod that the District
Plan (Count II); breach of fiduciary duty             Court should have applied. See Smathers v.
(Count III); and breach of contract (Count            M ulti- Tool Inc./M ulti-Plastics, Inc.
IV). McLeod named Hartford, Group Long                Employee Health & Welfare Plan, 298 F.3d
Term Disability Benefits for Employees of             191, 194 (3d Cir. 2002). McLeod’s claim
Valley Media, Inc., and Valley Media, Inc.,           arises under ERISA, where “a denial of
as defendants.         McLeod voluntarily             benefits challenged under § 1132(a)(1)(B) is
dismissed Counts I, III and IV of her                 to be reviewed under a de novo standard
complaint as against Hartford pursuant to             unless the be nefit Plan gives the
Fed. R. Civ. P. 41. The matter was stayed as          administrator or fiduciary discretionary
against Hartford’s co-defendants due to the           authority to determine eligibility for benefits
bankruptcy of Valley Media, Inc.2                     or to construe the terms of the plan,”
                                                      Firestone Tire & Rubber Co. v. Bruch, 489
       Hartford and McLeod filed cross-
                                                      U.S. 101, 115 (1989), in which case it must
motions for summary judgment. The Court
                                                      be reviewed under the arbitrary and
granted Hartford’s motion on February 27,
                                                      capricious standard. See Smathers, 298 F.3d
2003. McLeod filed a timely Notice of
                                                      at 194. Under the arbitrary and capricious
                                                      standard, the Court may overturn Hartford’s
                                                      decision “only if it is ‘without reason,
  2
    On February 27, 2003, the District                unsupported by substantial evidence or
Court entered summary judgment as to                  erroneous as a matter of law.’” Abnathya v.
Count II of the Complaint in favor of                 Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d
Hartford. On February 9, 2004, the                    Cir. 1993) (quoting Adamo v. Anchor
District Court directed the Clerk to enter            Hocking Corp., 720 F. Supp. 491, 500
that order as a final judgment pursuant to            (W.D. Pa. 1989)).
Fed. R. Civ. P. 54(b).

                                                  5
        In this case, the Plan provides               Reliance Standard Life Insurance Co., 344
Hartford with “full discretion and authority          F.3d 381 (3d Cir. 2003), cert. denied, 72
to determine eligibility for benefits and to          U.S.L.W. 3553 (U.S. May 24, 2004) (No.
construe and interpret all terms of [the              03-1203),] the District Court was required to
Plan].” Thus, Hartford’s decision to deny             review this decision under a heightened
LTD benefits to McLeod must be reviewed               arbitrary and capricious standard.” 3 While
under the arbitrary and capricious standard           the record is not clear as to the exact nature
unless the heightened standard of review              of the funding arrangement of the Plan, we
formulated in Pinto applies. In Pinto, we             accept Hartford’s concession that a
held that “when an insurance company both             heightened arbitrary and capricious standard
funds and administers benefits, it is                 of review applies.4
generally acting under a conflict that
                                                             Given this heightened standard of
warrants a heightened form of the arbitrary
                                                      review, the discretion Hartford accords itself
and capricious standard of review.” 214
                                                      to “determine eligibility for benefits and to
F.3d at 378. This heightened standard of
review uses a sliding scale approach,
intensifying the degree of scrutiny to match            3
the degree of conflict, considering, among                In Lasser, neither party disputed on
other factors, the exact nature of the                appeal the District Court’s determination
financial arrangement between the insurer             that because there was no “evidence of
and the company. See id. at 392. When                 conflict other than the inherent structural
applying this standard, a court is directed to        conflict,” of both funding and
consider “the nature and degree of apparent           administering the plan, the correct standard
conflicts” and shape its review accordingly,          of review was “at the mild end of the
with the result that the less evidence there is       heightened arbitrary and capricious scale.”
of conflict on the part of the administrator,         344 F.3d at 385.
the more deferential the standard becomes.              4
                                                          Hartford appears somewhat tentative
Id. at 393.
                                                      about its concession that a heightened
        McLeod contends that Hartford both            standard of review applies. For example,
funds and administers the Plan, and that the          Hartford implies that there was insufficient
heightened standard of review formulated in           evidence in the record that it funded the
Pinto therefore applies. Both in its brief and        Plan to trigger a heightened standard of
at oral argument, Hartford conceded that it           review and that the District Court therefore
funded the Plan and that a heightened                 did not err when it held that the arbitrary
standard of review applied: “There is no              and capricious standard of review applied.
dispute that Hartford insures the Plan and            However, as noted above, Hartford did
has been provided with authority to construe          also concede that a heightened standard of
Plan terms and to determine eligibility for           review applied. Thus, despite the hedging,
benefits.   Therefore, under Lasser [v.               we accept Hartford’s concession at face
                                                      value.

                                                  6
construe and interpret all terms and                 promote the interests of employees and their
provisions of [the Plan]” is not unfettered.         beneficiaries in employee benefit plans’ and
                                                     to ‘protect contractually defined benefits.’”
                                                     Firestone, 489 U.S. at 113 (quoting Shaw v.
          III. The Plan Language                     Delta Airlines, Inc., 463 U.S. 85, 90 (1983);
                                                     Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
                     A.
                                                     134, 148 (1985)). Were the Plan’s language
        The question before us is whether the        the subject of non-heightened discretionary
District Court erred when it concluded that          review, and had Hartford provided a
a diagnosis of MS that postdated M cLeod’s           plausible reason for its interpretation, then
consultation with a physician during the             perhaps the result would be different. But,
look-back period for numbness in her arm             given Hartford’s concession, heightened
established a pre-existing condition such that       review applies and Hartford’s suggested
Hartford’s decision to deny LTD benefits to          reading of the terms “for” and “symptom”
McLeod was justified. More specifically,             cannot withstand that scrutiny.
could Hartford “read back” a pre-existing
                                                             Under Hartford’s interpretation of the
condition for purposes of excluding
                                                     Plan, any symptom experienced before the
coverage when the condition itself was not
                                                     excludable condition is diagnosed could
diagnosed in the look-back period,
                                                     serve as the basis for an exclusion so long as
especially in a situation such as this where
                                                     the symptom was not later deemed
other diagnoses were made as to the very
                                                     inconsistent with that condition.         For
symptoms that are now being attributed to
                                                     example, a policy holder could seek medical
the (alleged) pre-existing condition.
                                                     care for shortness of breath and be
        Hartford would have us hold that             diagnosed with the remnants of a very bad
receiving medical care “for symptoms” of a           cold, and have a heart attack two months
pre-ex isting condition encompasses                  later.    According to its interpretation,
receiving care for symptoms that no one              Hartford would then be able to claim that the
even suspected were connected with the               original shortness of breath was a “symptom
later diagnosed ailment but which were later         or manifestation” of the underlying, and
deemed not inconsistent with it, but a               undiagnosed, heart disease, rendering the
heightened standard of review will not               heart disease a “pre-existing” condition for
countenance such a strained interpretation.          purposes of excluding the policy holder
In a case of heightened review, where the            from LTD benefits. The problem with using
plan administrator is not afforded complete,         this type of ex post facto analysis is that a
freewheeling discretion, we must be                  whole host of symptoms occurring before a
especially mindful to ensure that the                “correct” diagnosis is rendered, or even
administrator’s interpretation of policy             suspected, can presumably be tied to the
language does not unfairly disadvantage the          condition once it has been diagnosed. Thus,
policy holder. ERISA was enacted “‘to                any time a policy holder seeks medical care


                                                 7
of any kind during the look-back period, the                 insurance policy. In other
“symptom” that prompted him to seek the                      words, we must determine
care could potentially be deemed a symptom                   whether it is possible to
of a pre-existing condition, as long as it was               receive treatment “for” a
later deemed consistent with symptoms                        condition without knowing
generally associated with the condition                      what the condition is.
eventually diagnosed.
                                                      Id. at 162.
        The language at issue before us
                                                              Addressing this issue, the Lawson
revolves around the meaning of two terms:
                                                      panel held that the word “for” “has an
“for” and “symptom.” The Hartford Plan
                                                      implicit intent requirement” and that “it is
defines neither.         We have already
                                                      hard to see how a doctor can provide
undertaken the analysis of “for” in Lawson,
                                                      treatment ‘for’ a condition without knowing
301 F.3d 159. There, Elena Lawson was
                                                      what that condition is or that it even exists.”
taken to the emergency room two days
                                                      Id. at 165. In reaching this conclusion, the
before her insurance policy became
                                                      Court engaged in a detailed analysis of other
effective, for what was initially diagnosed as
                                                      courts’ renderings of the word “for” in
a respiratory tract infection. One week later,
                                                      similar contexts, noting that although there
after the effective date of her policy, she was
                                                      are differing readings of what constitutes
correctly diagnosed as having leukemia.
                                                      receiving treatment “for” a condition, the
The insurance company denied coverage of
                                                      word “for” itself must, by definition, include
medical expenses relating to the leukemia on
                                                      a notion of intentionality. See id. (“‘for’ is
the ground that it was a pre-existing
                                                      ‘used as a function word to indicate
condition for which Lawson received
                                                      purpose’” (quoting Webster’s Ninth New
treatment prior to the effective date.
                                                      Collegiate Dictionary 481 (1986))).
Lawson’s parents, acting on her behalf, sued
for breach of contract and we affirmed the                   As quoted above, the Plan at issue
District Court’s grant of their motion for            here defines a pre-existing condition, in
summary judgment.                                     relevant part as:
        The Lawson panel framed the issue in                 (2) any manifestations,
the following way:                                           s ym ptoms, find ing s, o r
                                                             aggravations related to or
       The central issue in this case
                                                             resulting from such accidental
       is whether receiving treatment
                                                             bodily injury, sickness, mental
       for the symptoms of an
                                                             illness, pregnanc y, or
       unsuspected or misdiagnosed
                                                             substance abuse;
       condition prior to the effective
       date of coverage makes the                            for which you received
       condition a pre-existing one                          Medical Care during the 90
       under the terms of the                                day period that ends the day


                                                  8
               before:                               review obtains. Upon finding—as we have
                                                     in this case—that the administrator’s
       (1) your effective date of
                                                     discretion was not unlimited and that the
       coverage
                                                     heightened standard of review applies, we
(italics supplied).                                  would be compelled to declare that
                                                     Hartford’s denial of benefits was unjustified
McLeod contends that in order to have been
                                                     since it is undisputed that McLeod did not
properly denied coverage under the Plan, she
                                                     receive treatment for MS during the look-
would have had to receive care from a
                                                     back period.      There is, however, one
physician for the MS or for the
                                                     significant difference between McLeod’s
“manifestations, symptoms, findings, or
                                                     case and the one presented in Lawson: Here,
aggravations” of MS during the look-back
                                                     the policy language is more precise and
period. She submits that intentionality is a
                                                     encompasses a broader range of elements in
key component of receiving medical care
                                                     its definition of what constitutes a pre-
and that the presence of the word “for” in
                                                     existing condition than did the policy at
the policy language is crucial.
                                                     issue in Lawson.
       In Pilot Life Insurance. Co. v.
                                                            In the Plan at issue here, a pre-
Dedeaux, 481 U.S. 41, 56 (1987), the
                                                     existing condition includes medical care
Supreme Court noted that Congress intended
                                                     received for any “manifestations, symptoms,
that “a federal common law of rights and
                                                     findings, or aggravations related to or
obligations under ERISA-regulated plans
                                                     resulting from such accidental bodily injury,
would develop.” Importing and extending
                                                     sickness, mental illness, pregnancy, or
the logic of Lawson, a contract case, into the
                                                     substance abuse” (emphasis added) as
ERISA context, is consistent with that
                                                     opposed to the policy at issue in Lawson
teaching. Finding the Lawson analysis
                                                     which defined a pre-existing condition as a
persuasive, we construe the term “for” to
                                                     “Sickness, Injury, disease or physical
conta in the Lawson eleme nt of
                                                     condition for which medical advice or
intentionality. Given that construction,
                                                     treatment was recommended by a Physician
Hartford’s interpretation must be rejected at
                                                     or received from a Physician” during the
all events, and certainly when a heightened
                                                     relevant look-back period. Lawson, 301
standard of review applies.
                                                     F.3d at 161.5
                      B.
       If McLeod’s case presented nothing              5
                                                         The Hartford Plan’s definition of
more than a dispute over whether she had
                                                     “medical care” is also extremely broad and
received treatment for MS (as opposed to the
                                                     seems to encompass virtually any contact
symptoms of MS), then the only question
                                                     between the patient and the physician,
before us would be whether we could apply
                                                     even absent some affirmative act on the
the straightforward logic of Lawson to an
                                                     part of the physician: “M edical Care is
ERISA case where the heightened Pinto
                                                     received when: (1) a Physician is consulted

                                                 9
        Hartford places great stock in the           certainly thought that to be the case when it
difference in the language of the two                stated that: “The Plan does not require that a
policies, arguing that “[u]nlike the Plan in         participant’s disabling condition be
this case, the Lawson policy’s definition of         diagnosed within the look-back period in
pre-existing condition did not encompass             order for it to be considered a ‘Pre-Existing
treatment for symptoms of a sickness.” At            Condition’; rather, it merely requires that a
first blush, this distinction seems                  participant receive medical care for a
noteworthy, and the fact that the Hartford           symptom or manifestation of the condition
P l a n i n c l u d es w o r d s s u c h as          during the look-back period.” McLeod v.
“manifestations” and “symptoms,” which the           Hartford Life & Accident Ins. Co., 247 F.
policy at issue in Lawson did not, seems             Supp. 2d 650, 660 (E.D. Pa. 2003). The
potentially significant. 6 The District Court        Court explained that it was “eminently
                                                     reasonable for Hartford to conclude that
                                                     when Plaintiff sought treatment from Dr.
or medical advice is given; or (2) treatment         DiGregorio for numbness in her left side in
is recommended, prescribed by, or                    February 1999, Plaintiff sought treatment for
received from a Physician.” At oral                  a ‘manifestation’ or ‘symptom’ of her MS.”
argument, we raised the question whether             Id. We disagree.
McLeod was precluded from receiving
LTD benefits merely for having consulted                    As stated above, Hartford does not
with a physician during the relevant look-           define the term “symptom.” A dictionary
back period. We conclude, however, that              definition of the word “symptom” reads:
the language of the policy dictates that the                Symptom: 1. Med.             A
medical care at issue must be specifically                  functional or vital
tied to the pre-existing condition or to the                phenomenon of disease; any
symptoms thereof in order for the                           perceptible change in any
exclusion to apply: “Pre-existing condition                 organ or function due to
means: (1) any accidental bodily injury,                    morbid conditions or to
sickness . . . or (2) any manifestations,                   morbific influence, especially
symptoms . . . for which you received                       when regarded as an aid in
Medical Care . . . .” (emphasis added). As                  diagnosis. Symptoms differ
we discuss below, just as a symptom can                     from signs in the diagnosis of
only be a symptom if the underlying                         a disease in that the former
condition causing the symptom is known                      are functional phenomena,
or suspected, so too medical care for that                  while the latter are incidental
condition or symptom can only be received                   or experimental.
if the condition is known or suspected.
                                                                 2. That which serves to
  6
    We limit our discussion to the term
“symptom” because “symptom” was the
term focused on by Hartford both in its              brief and at oral argument.

                                                10
              point out the existence                       symptoms of a not-yet-
              of something else; any                        dia gnose d c ondition as
              sign, token, or                               equivalent to treatment of the
              indication.                                   u n d e r l yi n g c o n d i t i o n
                                                            ultimately diagnosed might
Funk & Wagnalls New Standard Dictionary
                                                            open the door for insurance
of the English Language 2246 (1942).
                                                            companies to deny coverage
        It appears to us from this definition               f or an y co n d i t io n the
that a “symptom” is a meaningful term only                  symptoms of which were
because it is a “symptom” in relation to                    treated during                 the
something else. McLeod’s symptom of                         exclusionary period.           “To
numbness became relevant as one the Plan                    permit such a backward-
used to exclude her from coverage based on                  looking reinterpretation of
a pre-existing condition only once it was                   symptoms to support claims
deemed a “symptom of MS.” If it were just            denials would so greatly expand the
a random “symptom” of some undiagnosed               definition of preexisting condition as to
ailment, then Hartford would not be                  make that term meaningless: any prior
concerned with it. Given that the symptom            symptom not inconsistent with the ultimate
becomes a factor in the exclusion process            diagnosis would provide a basis for denial.”
only once it is tied to the diagnosis of the
                                                     301 F.3d at 166 (quoting In re Estate of
sickness, in this case MS, we do not see on
                                                     Monica Ermenc, 585 N.W .2d 679, 682 (Wis.
what basis Hartford can successfully argue
                                                     Ct. App. 1998)).
that there exists a significant difference
between the language of the Hartford Plan                      While this statement is dicta, it was
and the language of the insurance policy in          considered dicta, which we find persuasive.
Lawson. Indeed, the Hartford Plan still              Consistent with Lawson’s persuasive
bases the exclusion on “symptoms . . . for           reasoning, and the foregoing explanation of
which you received Medical Care.”                    the rationale of applying it to an ERISA
(emphasis added). This construction simply           context, we hold that the phrase “symptoms
begs the obvious question: symptoms of               . . . for which you received M edical Care” in
what?      Hartford offers no satisfactory           the Hartford policy necessarily connotes an
answer to this question.                             intent to treat or uncover the particular
                                                     ailment which causes that symptom (even
       In Lawson, we sought to avoid
                                                     absent a timely diagnosis), rather than some
precisely the type of ex post facto denial of
                                                     nebulous or unspecified medical problem.
benefits that Hartford has undertaken here:
                                                     To hold otherwise would vitiate any
       Although we base our                          meaningful distinction between symptoms
       decision on the language of                   which are legitimately moored to an
       the policy, we note that                      “accidental bodily injury, sickness, mental
       considering treatment for                     illness, pregnancy, or episode of substance

                                                11
abuse,” and those which are not. It is simply         MS to be revealed through the various
not meaningful to talk about symptoms in              testing McLeod underwent during the look-
the abstract: Seeking medical care for a              back period, none of the tests ever linked the
symptom of a pre-existing condition can               symptoms she was experiencing to MS. We
only serve as the basis for exclusion from            therefore conclude that the District Court
receiving benefits in a situation where there         erred as a matter of law when it held that
is some intention on the part of the physician        Hartford’s determination that McLeod had
or of the patient to treat or uncover the             received medical care for symptoms of MS
underlying condition which is causing the             during the look-back period was not
symptom.                                              arbitrary and capricious.
        Such a holding does not mean that we
require that a “correct” diagnosis be made
                                                                    IV. Conclusion
before the effective date of a policy in order
for an insurance company to be able to deny                  For the foregoing reasons, the
coverage based on a pre-existing condition.           judgment of the District Court will be
In Lawson, we explained the difference                reversed and the case remanded to the
between a “suspected condition without a              District Court with instructions to enter an
confirmatory diagnosis” and “a misdiagnosis           order denying Hartford’s motion for
or an unsuspected condition manifesting               summary judgment and granting McLeod’s
non-specific symptoms.” 301 F.3d at 166.              motion for summary judgment, and for
Despite numerous consultations with                   calculation of the LTD benefits due to
physicians and multiple MRIs which could              McLeod.
have potentially revealed the existence of
MS before the effective policy date, neither
McLeod nor her physicians ever suspected
that she was suffering the effects of MS.
Indeed, as we have explained above,
McLeod received on-going treatment for a
host of other ailments for the years
preceding the MS diagnosis with no
suspicion on anyone’s part that she was not
receiving proper medical care. Under those
circumstances, we are confident that
McLeo d’s case is one either o f
“misdiagnosis” or of “unsuspected condition
manifesting non-specific symptoms” rather
than a “suspected condition without a
confirmatory diagnosis.” While there were
multiple opportunities for the presence of


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