372 F.3d 618 | 3rd Cir. | 2004
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 Hartford Life and Accident Insurance Co. BECKER, Circuit Judge s. (“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 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 Markowitz, and underwent a number of (1) a Physician is consulted or 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 a l system. With the benefit of hindsight, a number of physicians including her treating e x a m i n a t i o n s , t e s t s , 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 — t h e s o - c a l l e d “ l o o k - b a c k
[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. . 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 dica 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. 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-Too l 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).
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 arbitrary and capricious standard.” [3] While LTD benefits to McLeod must be reviewed 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 of review applies. [4] funds and administers benefits, it is 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] In Lasser , neither party disputed on the degree of conflict, considering, among appeal the District Court’s determination other factors, the exact nature of the that because there was no “evidence of financial arrangement between the insurer conflict other than the inherent structural and the company. See id . at 392. When conflict,” of both funding and applying this standard, a court is directed to administering the plan, the correct standard consider “the nature and degree of apparent of review was “at the mild end of the conflicts” and shape its review accordingly, heightened arbitrary and capricious scale.” with the result that the less evidence there is 344 F.3d at 385. of conflict on the part of the administrator, 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 review and that the District Court therefore at oral argument, Hartford conceded that it 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. However, as noted above, Hartford did dispute that Hartford insures the Plan and 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, we accept Hartford’s concession at face benefits. Therefore, under Lasser [ v.
value. 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 istin g con dition 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 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 i l l n e s s , p r e g n a n c y , o r 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
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 c o n t a i n t h e L a w s o n e l e m e n t o f 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 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 e s w o r d s s u c h a s 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 As stated above, Hartford does not LTD benefits merely for having consulted define the term “symptom.” A dictionary with a physician during the relevant look- definition of the word “symptom” reads: back period. We conclude, however, that the language of the policy dictates that the
Symptom: 1. Med . A medical care at issue must be specifically f u n c t i o n a l o r v i t a l 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.
point out the existence symptoms of a not-yet- of something else; any dia gno sed c ondition as s i g n , t o k e n , o r equivalent to treatment of the indication. u n d e r l y i 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 t r e a t e d d u r i n g t h e 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
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
