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The Insurance Company Says My Medical Condition Is Pre-Existing – What Does That Mean?

A common issue in long term disability cases is the pre-existing condition exclusion. A pre-existing condition exclusion is a bit like the principle that you cannot get car insurance after the accident occurred. However, a car accident is a single event. Disability, however, chiefly when it results from a degenerative condition or a disease rather than a traumatic injury, is more of a process than a single event. Someone could continue working for weeks or even months before concluding that she cannot keep going because of the pain, fatigue, lapses in concentration or other symptoms. The worry for the insurance company's is that such a person might not obtain coverage (and not pay premiums) until she starts experiencing symptoms, and then claim benefits under the policy after just a short time of paying those premiums. Insurance companies use a variety of different policy terms to deal with this scenario of someone not paying for coverage until just before she is going to need it. The most common term in ERISA long term disability coverage defines a pre-existing condition as one for which the claimant “receives treatment” – usually defined broadly to include receiving “advice or treatment . . . take prescribed drugs; or . . . receive other medical care . . .” – during a “look-back period” – typically 90 days, though other lengths may be used – immediately prior to the effective date of coverage. The policy then excludes coverage for disabilities “caused or contributed to by” a pre-existing condition that occur within a certain period of time – usually one year, but other periods are sometimes used – after the effective date of coverage. In other words, the insurance company is saying that “you cannot be disabled in the first year of coverage for something you were treated for during the 90 days before you became covered.” In some instances, the insurance company will be right: it is a pre-existing condition and there is nothing to be done about it. In other cases, it is simple to establish that the disability is not pre-existing or that the claimant is disabled by a different condition (one that is not pre-existing). In between, there is a rather large gray area, where a combination of evidence gathering and advocacy can show that either there was no treatment “for” a specific condition during the look- back period, or that the pre-existing condition is too remotely related to the disability to establish that it was the cause of the disability.


Seth has always been compelled to excel, whether it meant earning his Eagle Scout as a teenager, participating in theater, debate and varsity football in high school, his Rhodes Scholar candidacy in college, or opening his own law firm. He also perseveres in situations others might shy away from, whether it involves sky-diving, rappelling down a mountain, white-water rafting, participating in marathons and triathlons, writing a novel, or lecturing nationally to large audiences about the vagaries of ERISA.


Seth is committed to serving disabled individuals. He is proud of his work in prominent organizations such as the American Association for Justice (AAJ), the Tennessee Bar Association (TBA) and Hospice. Seth is past-Chair of both AAJ's & TBA's Disability Law Sections, past-President of the Chattanooga Trial Lawyers Association, a 2-time recipient of the Pro Bono Excellence Award, and a 7 year member of the Board of Directors for Hospice of Chattanooga.