William H. Orrick, United States District Judge.
The question in this ERISA denial of disability benefits case is whether disabling symptoms caused by a surgery to treat a pre-existing condition fall under a limitation of benefits for disabling symptoms "that result[] from, or [are] caused or contributed to by, a Pre-existing Condition." There is no dispute that: (1) plaintiff Dr. Fadi G. Haddad (Haddad) had a pre-existing condition of cervical radiculopathy in the C5-6 cervical disk and that condition caused (prior to the surgery) non-disabling but significant and deteriorating neck pain as well as pain and paresthesia from the top of his right arm down to his right thumb; (2) the surgery he underwent in March 2015 was to alleviate the cervical radiculopathy by replacing the diseased disk, and that he was advised pre-surgery that the operation carried risks of spinal injury and equipment failure; and (3) after that surgery, Haddad's right side symptoms improved dramatically (or were totally alleviated) but Haddad started to suffer from non-pre-existing and disabling symptoms on his left side stemming from the C5-6 disk area.
Defendant Hartford Life and Accident Insurance Company (Hartford) contends that the post-surgery disabling conditions were "caused or contributed to" by his pre-existing cervical disease because the disabling conditions were the direct result of treatment/surgery to treat the pre-existing condition. Haddad asserts that because the symptoms that disabled him (left-side pain and paresthesia) were not the symptoms that he sought the surgery for (right-side pain and paresthesia), his coverage cannot be excluded by the pre-existing conditions limitation. I conclude that under the plain language of the Plan, the pre-existing condition exclusion applies because the left side disabling symptoms were "caused or contributed to" by the treatment for the pre-existing degenerative disk disease. Hartford's motion for judgment is GRANTED and Haddad's motion is DENIED.
Defendant Hartford Life and Accident Insurance Company (Hartford) issued a group life and disability policy (Policy) to the Trustee of the Health Care Industry Group Voluntary Life and Disability Insurance Trust (Trust or policy holder). AR 1064-1167. Hartford issued "certificates of insurance" (Certificates) to covered employees, outlining the benefits available. According to Hartford, these Certificates compromise the ERISA plan (Plan). Under the Plan sponsored by plaintiff's former employer Sutter Medical Group (Sutter), short-term disability (STD) and long-term disability (LTD) benefits were available. Haddad became covered by the Plan on July 28, 2014, his first day of employment with Sutter. AR 1058.
To be eligible for STD benefits under the Plan, an employee had to be unable to perform their regular or customary work. AR 1079-80. Benefits were payable for up to 22 weeks, but only six weeks if the disability was caused by a pre-existing condition. AR 1071. With respect to pre-existing conditions, the Plan provided:
AR 1075 (
The LTD Plan has a 180 days elimination period and provides coverage if the participant is unable to work in their "own occupation." AR 1097. The only substantive difference between the pre-existing condition limitation in the LTD and STD Plans is that medical care for a condition pre-coverage must have been within three months under the LTD Plan (as opposed to six month under the STD Plan). AR 1105.
Haddad first experienced neck pain in 2013. AR 1048.
By early 2015, Haddad's cervical problems were becoming more severe. In January 2015, he reported that his neck pain "worsened" with hyperextension and "more recently" he began experiencing paresthesia from the right upper arm to his thumb. AR 1048; see also AR 942 (C5-6 examination). During a January 27, 2015 consultation regarding surgical treatment, he was diagnosed with "cervical radiculopathy" based on the MRI showing "foraminal narrowing at C5-6." AR 1049. In March 2015, when discussing surgical options, Haddad described his symptoms as having gotten worse over the last year. AR 1046-47. Again, based on his MRI, Dr. Cheng diagnosed Haddad with "foraminal narrowing at the right C5-6 level as well as disk degeneration." Id. Haddad decided to undergo a C5-6 disk replacement and that operation was done by Dr. Cheng on March 5, 2015. AR 1043-47. The postoperative diagnosis confirmed that Haddad had "C5-6 stenosis with radiculopathy," and that a pre-operation MRI confirmed "severe stenosis." AR 1043. Prior to surgery, Haddad was informed that the surgery carried risks of spinal cord injury and failure of instrumentation. AR 1043.
On March 23, 2015, in a post-surgery appointment, Haddad reported that 95% of the right sided symptoms had been alleviated, but that he was suffering from new "shooting pain" symptoms. AR 1041. On review of imaging, the replacement disk appeared to be "flexed" but within the range of normal. AR 1042. In April 2015, Dr. Cheng attributed Haddad's new symptoms to "facet irritation and inflammation" following the surgery but indicated that he could return to work. AR 383, 402. In May 2015, Dr. Cheng reported that Haddad's radiculopathy symptoms were "completely resolved" but that he began having left-side neck pain and left-side paresthesia, and issued a note extending Haddad's return to work through July. AR 401-02. On August 20, 2015, Haddad underwent a second surgery performed by Dr. Tay to remove the replacement disk and take other measures to attempt to solve the problem. AR 500. In September 2015, Haddad reported improved neck pain and imaging showed a stable C5-6 plate and allograft, but discomfort still limited him from working. AR 527. In November 2015, Haddad reported existing pain and inability to work, with physical therapy providing only a mild reduction in pain. AR 528.
Prior to the March 5, 2015 surgery, Haddad applied for STD benefits. AR 1060-61. In support of his claim, Haddad submitted an "attending physician statement" from Dr. Cheng that noted his diagnosis as "cervical radiculopathy" with an onset date of July 2013. AR 183-185, 1063. Dr. Cheng's attending physician's statement (dated February 18, 2015), limited Haddad to clerical/sedentary work prior to the "cervical fusion" surgery. AR 1063. On March 18, 2015, Hartford notified Haddad that because his disability began within his
Based on its investigation, Hartford applied the pre-existing condition limitation and provided only six weeks of STD coverage. It reasoned that Haddad had received "medical care" for the C5-6 disk herniation and the resulting and progressive stenosis in the six months prior to his start at Sutter (therefore, he had a pre-existing condition) and that Haddad had received medical care for the condition within the first six months of his employment at Sutter. AR 26. On November 12, 2015, Hartford advised Haddad that only six weeks of benefits were payable under the STD Plan as a result of his pre-existing condition. AR 39-41.
On May 10, 2016, Haddad appealed that decision through Hartford's administrative process. AR 912-13. Haddad argued there and argues now that his pre-existing condition was limited to "right-side" non-disabling conditions that were 95% resolved with the surgery. AR 912. However, because the replacement disk inserted during the March 2015 surgery "flexed" or because during the surgery new injuries were caused, Haddad now suffered disabling left-side symptoms. AR 912. As part of the appeals process, Haddad submitted a May 5, 2016 letter from Dr. Bobby Tay (the surgeon who performed the second surgery). AR 912-15.
In his letter, Dr. Tay characterized the pre-surgery records as documenting right-sided conditions, caused by foraminal stenosis on the right side of C5-6 disk, as well as a posterior disc spur which "possibly or definitely" compressed the exiting right C6 nerve. AR 914. According to Dr. Tay, this pathology explains Haddad's right arm and hand symptoms, but "would not produce left arm symptoms" and there were no left-side symptoms. Id. Dr. Tay characterized Haddad's post-surgery records (submitted to Hartford as part of the administrative appeal), as showing new, left-side symptoms which were so severe as to prevent Haddad from working. AR 914-15. The appearance of the left-side symptoms post-surgery was documented, according to Tay, on a post-surgery EMG that showed a left-side C6 lesion which was not present on the imaging done prior to the initial surgery. AR 915. Dr. Tay concluded that there was a left-side nerve root injury that occurred during the March 5, 2015 disc replacement surgery. Id.
On May 18, 2016, Hartford upheld its initial decision because "[t]hough the claimant may not have had left sided symptoms before his 03/05/2015 surgery, they are the direct result of Treatment for his Pre-existing cervical diagnosis." AR 35.
This suit followed. The following facts are undisputed: (1) Haddad was diagnosed and had been under treatment since 2013 for cervical radiculopathy in the C5-6 cervical disk; (2) Haddad's pre-operation C5-6 radiculopathy only produced right-side symptoms that were not in and of themselves disabling;
Under Section 502 of the Employee Retirement Income Security Act ("ERISA"), a beneficiary or plan participant may sue in federal court "to recover benefits due to him under the terms of his plan, to enforce his rights under the terms of the plan, or to clarify his rights to future benefits under the terms of the plan." 29 U.S.C. § 1132(a)(1)(B). A claim of denial of benefits in an ERISA case "is to be reviewed under a de novo standard unless the benefit plan gives the [plan's] administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan." Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989).
Under the de novo standard, "[t]he court simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits." Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006). The normal summary judgment standard applies under de novo review. See Tremain v. Bell Indus., Inc., 196 F.3d 970, 978 (9th Cir. 1999).
As an initial matter, Haddad argues that because the actual Policy has not been produced in this action but only Certificates summarizing the Plan terms have, "broader latitude" should be granted to him in interpreting the terms of the Plan because of the "inherent lack of precision" caused by forcing him to rely on the summary Certificates. Pl. Tr. Br. at 8.
According to Haddad, the "Plan" produced by defendants is a booklet containing the applicable Certificates entitled "Your Benefit Plan." The Certificates state that:
AR 1069 (STD), 1095 (LTD), 1127 (Life Insurance).
The ERISA section of the booklet states:
AR 1152. Under "Plan Name," this same page states: "Group Short Term Disability, Long Term Disability, Basic Term Life, Supplemental Dependent Life, Supplemental Term Life Plan for employees of Sutter Medical Group." AR 1152.
Haddad argues that Hartford's repeated refusal to produce the Policy means that Hartford cannot meet its burden to prove that the STD pre-existing condition language described in the Summary Plan/Certificate is the same as in the Policy. Relatedly, he argues that because the Policy has not been produced, the existence of a "conspicuous, plain and clear" exclusionary clause is drawn into question.
At oral argument, plaintiff argued that because both the Plan and the 2004 Policy have language indicating that the other document governs in case of dispute, there is no definitive answer as to how the pre-existing condition language should be interpreted and plaintiff's proposed interpretation (essentially reading out the "caused or contributed to" language) should govern. However, plaintiff's counsel agreed that there was no language in the 2004 Policy that would change the interpretation or application of the pre-existing condition language in the Plan. Moreover, when read together, the Plan and the 2004 Policy are consistent; exclusions are to be determined under the language of the Plan. 2004 Policy at p. 5. Finally, the Certificates explaining the terms of the Plan that were in effect after the 2008 Policy reissuance (and that were produced in this case) maintained the same pre-existing condition exclusion language.
As such, I will not apply "broad latitude" and adopt plaintiff's reading of the pre-existing condition exclusion that essentially reads out the "caused or contributed" language from the Plan.
Given the language of the STD Plan and the undisputed evidence, I conclude that the symptoms that Haddad claims are disabling — the left-side pain and paresthesia and neck pain — were "caused or contributed to" by Haddad's pre-existing condition, the diseased C5-6 disk. The surgery that Haddad alleges caused his new, disabling problems was undertaken in order to alleviate the C5-6 disk problem. That Haddad was further injured as a result of that treatment, does not preclude application of the pre-existing condition limitation.
This conclusion is consistent with district court cases that have addressed this issue on similar facts under similar policy language. For example, in Breen v. Santander Glob.Facilities, No. CIV.A. 10-12032-RGS, 2012 WL 1857403, at *1 (D. Mass. May 22, 2012), the plaintiff sought
Similarly, in Bannon v. Assurant Employee Benefits, No. CIV.A.09-6666, 2010 WL 2037548, at *1 (E.D. La. May 20, 2010), the court, applying the deferential abuse of discretion standard, concluded that a policy limitation excluding payments for "any disability resulting, directly or [in]directly, from a pre-existing condition" excluded coverage for a disability caused by lithium toxicity resulting from a medication plaintiff took to treat his pre-existing bipolar condition. The court found that because "the [] policy by its terms extends to related conditions and disabilities that result indirectly from them, the facts in the Administrative Record justify application of the Pre-Existing Condition with the resulting limitation of benefits," as lithium toxicity was a "related condition" to the bipolar disorder and the disability resulted indirectly from the bipolar disorder. Id. at *6.
Finally, in Rose v. Hartford Life & Accident Ins. Co., No. 11-CV-02905-WJM-CBS, 2014 WL 2609628, at *3 (D. Colo. June 11, 2014), the district court affirmed a denial of benefits for a pre-existing condition under de novo review. The pre-existing condition policy language was materially similar to the one here. In Rose, the plaintiff had "a long history of problems with her spine, including thoracic kyphosis, which is a severe curving of the spine." Id. at *6. After reviewing the medical evidence, the court found substantial evidence to affirm Hartford's denial on the basis that plaintiff's disabling neck pain "results from, or is caused or contributed to by" her compensation for the thoracic kyphosis. Id. at *7.
Haddad argues that these district court cases are irrelevant as they are not binding precedent. He distinguishes Breen, Bannon, and Topazian because they were decided under the more deferential abuse of discretion standard. And he asserts argues that Rose is inapposite because in that case plaintiff's neck pain was a "natural progression" of her curved spine, whereas here it was the surgery — not a natural progression of the disk disease — that caused a new injury and led to the left-side symptoms.
That said, I find the referenced district court opinions persuasive. The Breen, Bannon, and Topazian opinions did not necessarily turn on the deferential standard applied. They relied on what a reasonable interpretation of "caused or contributed to" is, as applied to conditions that have worsened due to treatment or progression of a disease.
Haddad encourages me to follow Fought v. UNUM Life Ins. Co. Of Am., 379 F.3d 997 (10th Cir. 2004). There, following elective heart surgery, the plaintiff developed a severe staph infection. The district court granted summary judgment to the insurer who had denied the disability claim, concluding that plaintiff "suffered from a pre-existing coronary artery condition that `caused,' `contributed to,' or `resulted' in" her disability because the staph infection was a result of the coronary bypass surgery. Id., at 999-1001. The Tenth Circuit reversed. As framed by the Tenth Circuit:
Id. at 1009. The chain of causation there contained five very attenuated stages. Id. ("The failure of non-surgical alternatives, initially successful elective surgery, later complications from that surgery, initially successful treatment of those complications, and finally a drug resistant infection due to those complications, which in itself may have been caused by the intervening presence of Staphylococcus aureus due to faulty sterilization, sanitation, etc."). The Tenth Circuit concluded that accepting that extremely attenuated causal link "would effectively render meaningless the notion of the pre-existing condition clause by distending the breadth of the exclusion." Id. at 1010. Rejecting the long chain of causal links in Fought's case, with intervening causes, the court instead held that "the disabling condition must be substantially or directly attributable to the pre-existing condition." Id. at 1011; see also Cash v. Wal-Mart Group Health Plan, 107 F.3d 637 (8th Cir.1997) (applying pre-existing condition exclusion where the pre-existing condition (diverticula) was a "necessary precursor" and cased a complication and secondary condition (diverticulitis) to develop).
As Hartford argues, and contrary to Haddad's interpretation, the Fought case actually supports application of the pre-existing condition exclusion here. First, the causal chain with Haddad's disability is much shorter and does not involve unanticipated intervening causes or results such as those that flowed from the faulty sterilization/sanitation resulting in Fought's staph infection. Here, the disabling conditions flow directly from the fact that Haddad had a diseased C5-6 disk that required surgery. That the surgery did not work and/or exacerbated Haddad's symptoms does not mean his disabling symptoms were not caused or contributed to by his C5-6 disk disease.
Second, Haddad was advised that surgery to treat his diseased disk could result in spinal injury or failure of instrumentation. AR 1043. The Fought court distinguished cases which held that well-known complications from a disease — such as glaucoma following from diabetes — would trigger the pre-existing condition exclusion
Haddad also relies on McLeod v. Hartford Life & Acc. Ins. Co., 372 F.3d 618, 620 (3d Cir. 2004). There, interpreting slightly different language under a heightened abuse of discretion standard of review, the Third Circuit rejected an argument that "receiving medical care `for symptoms' of a pre-existing condition encompasses receiving care for symptoms that no one even suspected were connected with the later diagnosed ailment but which were later deemed not inconsistent with it." Id. at 624. In McLeod, the plaintiff was treated for numbness in her arm by a doctor who had for many years also treated plaintiff for "cardiac insufficiency" and for multiple bulging cervical discs. Id. at 621. Post-coverage, plaintiff was diagnosed with multiple sclerosis (MS), which in retrospect accounted for many if not most of her symptoms. Id. However, because McLeod had never been treated pre-coverage for her "condition" of MS and MS had never been considered a potential diagnosis, the fact that some of her MS-symptoms had been treated did not suffice to trigger the pre-existing condition exclusion. Id. at 628.
The McLeod court's analysis of different policy terms and an unsuspected condition is not apposite. Here, Haddad received pre-coverage care for symptoms of a diagnosed condition; C5-6 disk disease. That the symptoms of his disease were confined (pre-surgery) to his right side and after the unsuccessful treatment shifted to his left side and became more severe does not mean that his C5-6 disk disease and C6 root compression were not pre-existing.
Finally, as opposed to the proximate cause standard adopted in Fought, in his response brief Haddad appears to advocate for application of the common law "process of nature" rule to define when a disability is "related to or resulting from" a pre-existing condition.
For the foregoing reasons, Hartford's motion for judgment is GRANTED and Haddad's motion is DENIED.
