When you start a new job that provides disability insurance, or accidental death and dismemberment insurance, most policies include language that states you will not have coverage for claims you make in the first 12 months if the claim is for an injury or illness that is a “pre-existing condition.” But what is a pre-existing condition, and how will insurance companies determine if you have one?
A pre-existing condition is generally defined as any medical condition for which you received treatment, care, advice, or a prescription from a medical professional in the 90 days before you started your new job. The precise language will differ from policy to policy, but that is the general idea. For some medical conditions, the application will be obvious. If you were in treatment for breast cancer in the three months before you started your new job, started a new job believing you were in remission, and then 8 months later found out that your cancer had returned, that would be a pre-existing condition and you would not have coverage. If you were in a car accident before you started a new job and treated with a chiropractor or in physical therapy for injuries, and eventually could not work because of those injuries and so went on leave within the first year of work, that would be a pre-existing condition. It’s also reasonably clear that if you treated with a doctor for a broken leg, or with a psychiatrist for anxiety before starting your new job and six months later you were hit by a car and went out on disability for internal injuries, your prior medical care would not be a pre-existing condition that would bar coverage for the accident.
There are other situations that are not so clear cut. If you were treating for back problems due to a slipped disc prior to starting work, and then were in a car accident six months into your new job and further injured your back, will coverage for that injury be barred by the pre-existing condition limitation? Your insurance company will almost surely argue that there is no coverage because the injury was a pre-existing condition. What if you had diabetes, and after a car accident lost a leg, in part because of complications related to your diabetes? Or what if you had been fully released to work after a prior injury and were not treating for it, but were titrating down on your pain medication during the 90-day period before you started work, and then your injury flared and you needed to go on disability?
All of the above scenarios have been litigated before the courts. Different judges reach different conclusions. Under ERISA, at least in the Ninth Circuit, courts have adopted a rule that a pre-existing condition cannot just be for any injury in the same physical area. The pre-existing injury must “substantially” cause or contribute to the disability at issue. Of course, then the question becomes, “what does ‘substantially’ mean, and was does ’cause’ or ‘contribute to’ mean?” And that is a question for the court.
All too often, insurance companies will come into a pre-existing condition investigation seeking a basis to deny the claim. For this reason, it is important to ensure that you provide information in your claim that demonstrates why any medical care you received during the 90-day “look-back” period before you began work did not substantially cause or contribute to your current disability.
Insurance companies frequently fail to document in their denial letter, or appeal letter, how exactly they believe the pre-existing condition caused or contributed to the disability. This indicates that they never considered the question, and that their evaluation was superficial. It is not enough to summarily announce that the prior treatment was for a condition that “caused or contributed to” the current disability. The insurance company is required to explain how it did, and how the insurance company knows that it did.
If an insurance company denies your insurance claim based on a pre-existing condition, do not assume that is the end of the road for your claim. It is quite possible that, depending on the facts in your individual situation, the insurance company got it wrong.
If this sounds familiar to you or someone you love, please call Kantor & Kantor for a free consultation at 800-446-7529 or use our online contact form.