Hi, I’m Nick Ortiz. I’m a board certified disability insurance attorney.
Today I’m here to talk to you about pre-existing condition exclusions in long-term disability claims.
You’re probably here today because the insurance company has denied your claim for long-term disability benefits, saying that they’re denying you due to a pre-existing condition. So what exactly does that mean, and what can you do about it?
The first thing is, the pre-existing condition is going to be specifically defined in your policy. So normally I wouldn’t do this, but I’m gonna go ahead and read to you a sample provision from an insurance policy so that you have a good idea of what the definition is and how it applies to a typical kind of case. So, I’ve taken a page from an Aetna long-term disability policy, and I’m going read to you what the pre-existing condition states in there. It says, “no benefit is payable for any disability that is caused by or substantially contributed to by a pre-existing condition or medical or surgical treatment of a pre-existing condition and starts before the end of the first 12 months following your effective date of coverage. A disease or injury is pre-existing if during the three months right before your effective date of coverage, it was diagnosed. Or you received medical treatment, care, or services for the disease or injury. Or you took drugs or medicines prescribed or recommended by a physician for the disease or injury.”
I think the best way to come to understand how a pre-existing condition impacts a long-term disability case is to perhaps use an analogy to a different kind of case. So, first of all, we’ll use health insurance. So, you know that if you’re looking for health insurance, but let’s say that someone was just diagnosed with cancer, and they didn’t have any health insurance before. And now they realize the importance that it would have been nice to have health insurance to get all the treatment that’s required for that type of serious condition. However, if someone has cancer, and they go out, and they try to buy a new health insurance policy, then very few insurance companies are gonna want to underwrite that, or write a policy for the cancer because they know also there’s gonna be a lot of treatment that’s required due to that condition. So they’re either going to deny coverage, saying that we’re not going to cover you for the cancer. Or they’re going write a policy saying that we’re going to cover you for every type of medical condition except for cancer. So they exclude it as a pre-existing condition.
The same type of concept applies in a long-term disability claim. The idea is they don’t want to cover you for something that you’ve been getting treatment for if you go out on disability within a year of starting your job. So that’s where it says, if it starts before end of the first 12 months following your effective date of coverage. So, let’s use an example within the long-term disability world. Let’s say that someone started working on January 1 of 2017. And they’re going along, working great for a few months. And then on April 1 of 2017, they have to stop work due to, let’s say a back pain problem. They were in a car wreck. They herniated discs. And they’re no longer able to go back to work because of they disc herniations, and the pain, and the recovery goes along with that. Now, they were only at work for about three, four months before they went out of work. So, they would fall, they would be subject to the pre-existing condition exclusion because this condition arose within the first 12 months of their employment.
So what that means is the insurance company is going to go back and look at what happened during the three months prior to the date the insurance took effect. So in this case, they’re going to look at October, November, and December of 2016 to see, “did that person get any kind of treatment for that condition in that three month time period?” So if they got treatment for a back pain condition in October, November, or December of ’16, then they would not cover it.
But, the thing was, using our example, the person was in a car wreck. So they probably weren’t getting treatment for a back condition. And, in fact, it can be shown that their condition is related to that accident, which did not occur during the pre-existing look back period. And therefore, there probably would be coverage in that instance because it’s not a pre-existing condition. It’s a condition that arose after the coverage took effect.
But let’s change the circumstances a little bit. Let’s say they didn’t go out because of a back pain problem, but let’s say that they went out because of a breathing disorder. Like, they have really bad COPD, and it’s gotten to the point where they have extreme difficulty breathing, extreme difficulty doing activities of daily living, and difficulty doing work activity. So again, it was only after three or four months on the job, and now the insurance company’s gonna do the same evaluation. They’re going to look to see, okay, was this person getting any kind of treatment during the three months prior to Jan 1 of 2017? So let’s say our person did get treatment on November 15 of 2016. They went to go see a pulmonologist because of the breathing problems they were having. Wasn’t as bad as it was when they ultimately went out of work, but they were still having problems, and so they were seeing a lung doctor.
Well, in that instance, the insurance company is very likely to deny the claim ’cause they’re going to say, look, you stopped working within one year. That’s step one. And step two is, you did get treatment for that breathing problem in the three months before the coverage took effect. Therefore, because it’s the same condition, it’s a breathing problem, a lung problem, we’re not going to cover you for LTD benefits. That’s how a pre-existing condition exclusion works in a LTD case.
So some pre-existing conditions are relatively clear cut, such as those two examples that I just gave. But things can get a little bit more complicated when there does seem to be maybe some overlapping symptoms between what the patient got treatment for and what they ultimately stopped working for. So let’s say, another example. Let’s say that our hypothetical person went out of work, again in April of 2017, due to a heart attack. And let’s say that the insurance company gets all the medical records, and they go back to October, November, and December of 2016, to see if the person was getting any kind of treatment for a heart problem. And let’s say that the person was taking blood pressure medication for high blood pressure. Now, the insurance company is going to argue that that was treatment relating to a heart condition, or that the individual took drugs or medicines prescribed or recommended by a physician for treatment of that type of condition. And they may deny the claim saying, look, although you had the heart attack later, you were experiencing heart problems, blood pressure problems, things like that, during the look back period. And therefore, we’re going to deny you benefits.
So in that type of case, we’ve argued that, look, there’s such a distinction between high blood pressure and ultimately stopping work due to a heart attack, that you should pay benefits because they are not the same condition. It’s a new and materially different condition that they stopped working because of. So what you’re going to need to identify is either a condition that you did not get treatment for during the look back period, or that your condition is so materially different than what you received treatment for back during the look back period, that you should still be entitled to benefits. So that’s where things can get a little bit tricky.
So if you’ve been denied benefits under the pre-existing condition exclusion, then you’re going to probably want to talk to an experienced attorney about what your legal rights are. And we encourage you to contact our law firm because we do have experience in dealing with pre-existing condition exclusion denials by insurance companies. If you want a free consultation because you’ve been denied benefits, I encourage you to give us a call at 850-898-9904. Or if you’d like a copy of a book that I wrote called the Top Ten Mistakes That Will Destroy Your Long-Term Disability Claim, I encourage you to go to www.freeltdbook.com today and claim your free copy. Thanks for listening. We look forward to hearing from you.