Shirley McLeod v. Hartford Life

PRECEDENTIAL
IN THE UNITED STATES COURT OF
APPEALS FOR THE THIRD CIRCUIT
____________________
NO. 03-1744
___________________
SHIRLEY MCLEOD
Appellant
v.
HARTFORD LIFE AND ACCIDENT
INSURANCE COMPANY; GROUP
LONG TERM DISABILITY BENEFITS
FOR EMPLOYEES OF VALLEY
MEDIA, INC; VALLEY MEDIA, INC.
________________
On Appeal From the United States District
Court for the Eastern District of
Pennsylvania
(D.C. No. 01-cv-04295)
District Judge: Honorable Cynthia M. Rufe
______________________________
Argued January 12, 2004
Before: ALITO, CHERTOFF, and
BECKER, Circuit Judges.
(Filed June 22, 2004 )
BARRY L. GROSS (Argued)
Stief, Waite, Gross, Sagoskin & Gilman
547 East Washington Avenue
P.O. Box 274
Newtown, PA 18940
Counsel for Appellant
BRIAN P. DOWNEY(Argued)
Pepper Hamilton, LLP
200 One Keystone Plaza
Harrisburg, PA 17108
Counsel for Appellee Hartford Life &
Accident Insurance Company
LAWRENCE M . KELLEY
Mintzer, Sarowitz, Zeris, Ledva & Meyers
1528 Walnut Street
22nd Floor
Philadelphia, PA 19102
Counsel for Appellee Valley Media Inc.
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
This is an ERISA case. Plaintiff
Shirley McLeod (“McLeod”), a former
employee of defendant Valley Media, Inc.,
appeals the District Court’s grant of
summary judgment in favor of defendant
Hartford Life and Accident Insurance Co.
(“Hartford”) in which the Court upheld
Hartford’s denial of long term disability
(“LTD”) benefits to McLeod based upon
Hartford’s interpretation of the language in
McLeod’s benefits policy with Hartford.

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The question before us on appeal is whether
Hartford wrongfully determined that
McLeod, who had been receiving medical
care for various ailments since 1997, but
who was neither diagnosed with nor treated
specifically for multiple sclerosis (“MS”)
until after her benefits plan became effective
in 1999, should have been excluded from
coverage due to the existence of a “pre-
existing condition,” namely MS. Consistent
with our opinion in Lawson ex rel. Lawson
v. Fortis Insurance Co., 301 F.3d 159 (3d
Cir. 2002), we hold that despite language in
the benefit plan aimed to cast a broad net as
to what constitutes receiving medical care
for a “pre-existing condition,” McLeod did
not receive treatment “for” such a pre-
existing condition prior to her effective date
of coverage because neither she nor her
physicians either knew or suspected that the
symptoms she was experiencing were in any
way connected with MS. Under the
heightened standard of review formulated in
Pinto v. Reliance Standard Life Insurance
Co., 214 F.3d 377 (3d Cir. 2000), the
decision to deny McLeod LTD benefits was
arbitrary and capricious and we will
therefore reverse the District Court’s grant
of summary judgment to Hartford, reverse
its denial of M cLeod’s motion for summary
judgment on liability, and remand for
calculation of benefits.
I. Facts and Procedural History
On January 26, 1998, McLeod was
hired by Valley Media to fill a position
described as “Operations – General
Warehouse.” The job consisted of stocking
video cassettes in a warehouse and involved
long periods of standing. McLeod signed up
for health insurance and other benefits under
the Valley Media Plan (“the Plan”) with an
effective date of April 1, 1999. Under the
terms of the Plan, a participant is not entitled
to receive benefits for any disability that
stems from a “pre-existing condition.” In
relevant part, the Plan provides that:
No benefit will be payable
under the Plan for any
Disability that is due to,
contributed to by, or results
from a Pre-existing Condition,
unless such Disability begins:
(1) after the last day of
90 consecutive days while
insured during which you
receive no medical care for
the Pre-existing Condition; or
(2) after the last day of
365 consecutive days during
w h i c h y o u have bee n
continuously insured under
this Plan.
P r e - e x i s t i n g
Condition means:
(1) any accidental bodily injury,
sickness, mental illness, pregnancy, or
episode of substance abuse; or
(2) any manifestations, symptoms, findings,
or aggravations related to or resulting from
such accidental bodily injury, sickness,
mental illness, pregnancy, or substance
abuse;
for which you received
Medical Care during the 90

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3
day period that ends the day
before:
(1) your effective date of coverage; or
(2) the effective date of a Change in
Coverage.
Medical Care is received when:
(1) a Physician is consulted or
medical advice is given; or
(2) treatment is recommended,
prescribed by, or received from a
Physician
Treatment includes but
is not limited to:
( 1 ) m e d i c a l
e x a m i n a t i o n s , t e s t s ,
attendance or observation;
(2) use of drugs,
medicines, medical services,
supplies or equipment.
(italics supplied).
The issue in the case centers around
the fact that on February 22, 1999, a date
that fell within the 90 day period that ended
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
period”—McLeod consulted Dr. Eileen
DiGregorio because of numbness in her left
arm. Dr. DiGregorio had already treated
McLeod for a number of years for cardiac
insufficiency, and for multiple bulging
cervical discs whose presence had been
confirmed by MRI evaluations. McLeod
had also been diagnosed with hypertension
and had suffered several panic attacks. It is
unconstested both that Dr. DiGregorio
provided medical care for the numbness
during the February 1999 visit and that she
did not diagnose or otherwise suggest that
McLeod might have MS at that time.
McLeod continued to seek treatment for her
condition over the next several months from
Dr. DiGregorio, as well as from two
neurologists, Drs. Emil Matarese and Clyde
Markowitz, and underwent a number of
neurological evaluations and MRIs, none of
which produced a diagnosis of MS or even
a suspicion that MS was a possible cause of
the numbness and other complaints.
It was not until August 1999 that
McLeod was finally diagnosed with MS, an
inflammatory disease of the central nervous
system. With the benefit of hindsight, a
number of physicians including her treating
physicians and a non-treating physician who
reviewed her medical record for Hartford,
attributed McLeod’s various pre-coverage
symptoms and ailments to MS.1 In March
1 For example, an evaluation by one of
McLeod’s treating neurologists dated
October 27, 1999, after the MS diagnosis
had already been made, states:
[S]he developed the onset of
intermittent pain and
numbness in her left arm.
She had one attack then
[1998] and another one in
February [1999], both of
which resolved and then
most recently has been
having an aggressive attack
starting in the late summer
with numbness in both legs. .

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2000, McLeod applied for short term
disability (“STD”) benefits. She had last
worked on January 28, 2000. The Attending
Physician’s Statement completed by Dr.
DiGregorio and submitted as part of
McLeod’s application provides:
Diagnosis: Multiple Sclerosis
Subjective Symptoms: Severe pain
legs, feet, can’t stand long,
paresthesias
Date of onset of this
condition: 1997
Dates of treatment for this
c o n d i t io n : P r o g r e s s i v e
symptoms since 1997
McLeod’s claim for STD benefits
was initially approved from February 4,
2000 through February 17, 2000 and was
then extended through May 4, 2000. At the
time of the extension, McLeod was informed
that benefits beyond May 4, 2000, would be
reviewed to determine her eligibility for
LTD benefits. Hartford denied McLeod’s
application for LTD benefits on the grounds
that her disabling condition, MS, was a pre-
existing condition for which LTD benefits
were not payable under the Plan. Although
the diagnosis of MS was not made until
August 1999, more than four months after
her effective date of coverage, Hartford
concluded that McLeod had “received
medical [care] for manifestations,
symptoms, findings or aggravations relating
to or resulting from Multiple Sclerosis
during the 90 day period prior to [her]
insured effective date of April 1, 1999
[1/1/99-3/31/99]” when she saw Dr.
DiGregorio for left arm numbness on
February 22, 1999.
On November 2, 2000, McLeod
appealed this denial through an internal
appeals mechanism. Hartford informed
McLeod, by letter dated February 22, 2001,
that it was upholding its determination that
“the Multiple Sclerosis was a Pre-existing
condition based on the ‘Manisfestations,
symptoms, findings, or aggravations related
to’ the Multiple Sclerosis.”
McLeod filed a timely appeal of that
decision, again in accordance with the Plan’s
grievance procedures. The appeal focused
on McLeod’s claim that she had not received
treatment for MS during the look-back
period, since the MS had not yet been
diagnosed at that time. As part of the appeal
process, Hartford forwarded McLeod’s file
to the University Disability Consortium for
an independent medical review. The review
was conducted by Dr. Brian M ercer, a
neurologist. As part of the process, Dr.
Mercer reviewed M cLeod’s medical
information and spoke to her treating
. . The constellation
of her symptom[s] is
consistent with
multiple sclerosis
with a
relapsing/remitting
onset and now
possibly a secondary
progressive course
with this most recent
attack being
prolonged and
progressing.

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5
physicians, Drs. DiGregorio and Markowitz.
Based on his review of the medical records
and his discussions with McLeod’s treating
physicians, Dr. Mercer concluded that “the
records indicate that [McLeod] was treated
on 2/22/99 for left arm numbness, which
was a symptom and manifestation of her
multiple sclerosis, albeit not yet diagnosed at
that time.” In consideration of all the
information before it, Hartford affirmed its
decision to deny LTD benefits.
McLeod then filed a complaint in the
District Court alleging claims of interference
with protected rights (Count I); failure to
award benefits due under the terms of the
Plan (Count II); breach of fiduciary duty
(Count III); and breach of contract (Count
IV). McLeod named Hartford, Group Long
Term Disability Benefits for Employees of
Valley Media, Inc., and Valley Media, Inc.,
as defendants. McLeod voluntarily
dismissed Counts I, III and IV of her
complaint as against Hartford pursuant to
Fed. R. Civ. P. 41. The matter was stayed as
against Hartford’s co-defendants due to the
bankruptcy of Valley Media, Inc.2
Hartford and McLeod filed cross-
motions for summary judgment. The Court
granted Hartford’s motion on February 27,
2003. McLeod filed a timely Notice of
Appeal on March 14, 2003. The Court had
jurisdiction pursuant to 28 U.S.C. § 1331
because the complaint sought benefits under
29 U.S.C. § 1132(a)(1)(B). We have
appellate jurisdiction pursuant to 28 U.S.C.
§ 1291.
II. Standard of Review
Our review of the grant of summary
judgment is plenary. See Shelton v. Univ. of
Med. & Dentistry of N.J., 223 F.3d 220, 224
(3d Cir. 2000). We apply the same standard
of review to Hartford’s decision to deny
LTD benefits to McLeod that the District
Court should have applied. See Smathers v.
M ulti-Tool Inc./M ulti-Plastics, Inc.
Employee Health & Welfare Plan, 298 F.3d
191, 194 (3d Cir. 2002). McLeod’s claim
arises under ERISA, where “a denial of
benefits challenged under § 1132(a)(1)(B) is
to be reviewed under a de novo standard
unless the be nefit Plan gives the
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 (1989), in which case it must
be reviewed under the arbitrary and
capricious standard. See Smathers, 298 F.3d
at 194. Under the arbitrary and capricious
standard, the Court may overturn Hartford’s
decision “only if it is ‘without reason,
unsupported by substantial evidence or
erroneous as a matter of law.’” Abnathya v.
Hoffman-La Roche, Inc., 2 F.3d 40, 45 (3d
Cir. 1993) (quoting Adamo v. Anchor
Hocking Corp., 720 F. Supp. 491, 500
(W.D. Pa. 1989)).
2 On February 27, 2003, the District
Court entered summary judgment as to
Count II of the Complaint in favor of
Hartford. On February 9, 2004, the
District Court directed the Clerk to enter
that order as a final judgment pursuant to
Fed. R. Civ. P. 54(b).

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In this case, the Plan provides
Hartford with “full discretion and authority
to determine eligibility for benefits and to
construe and interpret all terms of [the
Plan].” Thus, Hartford’s decision to deny
LTD benefits to McLeod must be reviewed
under the arbitrary and capricious standard
unless the heightened standard of review
formulated in Pinto applies. In Pinto, we
held that “when an insurance company both
funds and administers benefits, it is
generally acting under a conflict that
warrants a heightened form of the arbitrary
and capricious standard of review.” 214
F.3d at 378. This heightened standard of
review uses a sliding scale approach,
intensifying the degree of scrutiny to match
the degree of conflict, considering, among
other factors, the exact nature of the
financial arrangement between the insurer
and the company. See id. at 392. When
applying this standard, a court is directed to
consider “the nature and degree of apparent
conflicts” and shape its review accordingly,
with the result that the less evidence there is
of conflict on the part of the administrator,
the more deferential the standard becomes.
Id. at 393.
McLeod contends that Hartford both
funds and administers the Plan, and that the
heightened standard of review formulated in
Pinto therefore applies. Both in its brief and
at oral argument, Hartford conceded that it
funded the Plan and that a heightened
standard of review applied: “There is no
dispute that Hartford insures the Plan and
has been provided with authority to construe
Plan terms and to determine eligibility for
benefits. Therefore, under Lasser [v.
Reliance Standard Life Insurance Co., 344
F.3d 381 (3d Cir. 2003), cert. denied, 72
U.S.L.W. 3553 (U.S. May 24, 2004) (No.
03-1203),] the District Court was required to
review this decision under a heightened
arbitrary and capricious standard.”3 While
the record is not clear as to the exact nature
of the funding arrangement of the Plan, we
accept Hartford’s concession that a
heightened arbitrary and capricious standard
of review applies.4
Given this heightened standard of
review, the discretion Hartford accords itself
to “determine eligibility for benefits and to
3 In Lasser, neither party disputed on
appeal the District Court’s determination
that because there was no “evidence of
conflict other than the inherent structural
conflict,” of both funding and
administering the plan, the correct standard
of review was “at the mild end of the
heightened arbitrary and capricious scale.”
344 F.3d at 385.
4 Hartford appears somewhat tentative
about its concession that a heightened
standard of review applies. For example,
Hartford implies that there was insufficient
evidence in the record that it funded the
Plan to trigger a heightened standard of
review and that the District Court therefore
did not err when it held that the arbitrary
and capricious standard of review applied.
However, as noted above, Hartford did
also concede that a heightened standard of
review applied. Thus, despite the hedging,
we accept Hartford’s concession at face
value.

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construe and interpret all terms and
provisions of [the Plan]” is not unfettered.
III. The Plan Language
A.
The question before us is whether the
District Court erred when it concluded that
a diagnosis of MS that postdated M cLeod’s
consultation with a physician during the
look-back period for numbness in her arm
established a pre-existing condition such that
Hartford’s decision to deny LTD benefits to
McLeod was justified. More specifically,
could Hartford “read back” a pre-existing
condition for purposes of excluding
coverage when the condition itself was not
diagnosed in the look-back period,
especially in a situation such as this where
other diagnoses were made as to the very
symptoms that are now being attributed to
the (alleged) pre-existing condition.
Hartford would have us hold that
receiving medical care “for symptoms” of a
pre-ex isting 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, but a
heightened standard of review will not
countenance such a strained interpretation.
In a case of heightened review, where the
plan administrator is not afforded complete,
freewheeling discretion, we must be
especially mindful to ensure that the
administrator’s interpretation of policy
language does not unfairly disadvantage the
policy holder. ERISA was enacted “‘to
promote the interests of employees and their
beneficiaries in employee benefit plans’ and
to ‘protect contractually defined benefits.’”
Firestone, 489 U.S. at 113 (quoting Shaw v.
Delta Airlines, Inc., 463 U.S. 85, 90 (1983);
Mass. Mut. Life Ins. Co. v. Russell, 473 U.S.
134, 148 (1985)). Were the Plan’s language
the subject of non-heightened discretionary
review, and had Hartford provided a
plausible reason for its interpretation, then
perhaps the result would be different. But,
given Hartford’s concession, heightened
review applies and Hartford’s suggested
reading of the terms “for” and “symptom”
cannot withstand that scrutiny.
Under Hartford’s interpretation of the
Plan, any symptom experienced before the
excludable condition is diagnosed could
serve as the basis for an exclusion so long as
the symptom was not later deemed
inconsistent with that condition. For
example, a policy holder could seek medical
care for shortness of breath and be
diagnosed with the remnants of a very bad
cold, and have a heart attack two months
later. According to its interpretation,
Hartford would then be able to claim that the
original shortness of breath was a “symptom
or manifestation” of the underlying, and
undiagnosed, heart disease, rendering the
heart disease a “pre-existing” condition for
purposes of excluding the policy holder
from LTD benefits. The problem with using
this type of ex post facto analysis is that a
whole host of symptoms occurring before a
“correct” diagnosis is rendered, or even
suspected, can presumably be tied to the
condition once it has been diagnosed. Thus,
any time a policy holder seeks medical care

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of any kind during the look-back period, the
“symptom” that prompted him to seek the
care could potentially be deemed a symptom
of a pre-existing condition, as long as it was
later deemed consistent with symptoms
generally associated with the condition
eventually diagnosed.
The language at issue before us
revolves around the meaning of two terms:
“for” and “symptom.” The Hartford Plan
defines neither. We have already
undertaken the analysis of “for” in Lawson,
301 F.3d 159. There, Elena Lawson was
taken to the emergency room two days
before her insurance policy became
effective, for what was initially diagnosed as
a respiratory tract infection. One week later,
after the effective date of her policy, she was
correctly diagnosed as having leukemia.
The insurance company denied coverage of
medical expenses relating to the leukemia on
the ground that it was a pre-existing
condition for which Lawson received
treatment prior to the effective date.
Lawson’s parents, acting on her behalf, sued
for breach of contract and we affirmed the
District Court’s grant of their motion for
summary judgment.
The Lawson panel framed the issue in
the following way:
The central issue in this case
is whether receiving treatment
for the symptoms of an
unsuspected or misdiagnosed
condition prior to the effective
date of coverage makes the
condition a pre-existing one
under the terms of the
insurance policy. In other
words, we must determine
whether it is possible to
receive treatment “for” a
condition without knowing
what the condition is.
Id. at 162.
Addressing this issue, the Lawson
panel held that the word “for” “has an
implicit intent requirement” and that “it is
hard to see how a doctor can provide
treatment ‘for’ a condition without knowing
what that condition is or that it even exists.”
Id. at 165. In reaching this conclusion, the
Court engaged in a detailed analysis of other
courts’ renderings of the word “for” in
similar contexts, noting that although there
are differing readings of what constitutes
receiving treatment “for” a condition, the
word “for” itself must, by definition, include
a notion of intentionality. See id. (“‘for’ is
‘used as a function word to indicate
purpose’” (quoting Webster’s Ninth New
Collegiate Dictionary 481 (1986))).
As quoted above, the Plan at issue
here defines a pre-existing condition, in
relevant part as:
(2) any manifestations,
s ym ptoms, find ing s, o r
aggravations related to or
resulting from such accidental
bodily injury, sickness, mental
i l l n e s s , p r e g n a n c y , o r
substance abuse;
for which you received
Medical Care during the 90
day period that ends the day

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before:
(1) your effective date of
coverage
(italics supplied).
McLeod contends that in order to have been
properly denied coverage under the Plan, she
would have had to receive care from a
physician for the MS or for the
“manifestations, symptoms, findings, or
aggravations” of MS during the look-back
period. She submits that intentionality is a
key component of receiving medical care
and that the presence of the word “for” in
the policy language is crucial.
In Pilot Life Insurance. Co. v.
Dedeaux, 481 U.S. 41, 56 (1987), the
Supreme Court noted that Congress intended
that “a federal common law of rights and
obligations under ERISA-regulated plans
would develop.” Importing and extending
the logic of Lawson, a contract case, into the
ERISA context, is consistent with that
teaching. Finding the Lawson analysis
persuasive, we construe the term “for” to
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
intentionality. Given that construction,
Hartford’s interpretation must be rejected at
all events, and certainly when a heightened
standard of review applies.
B.
If McLeod’s case presented nothing
more than a dispute over whether she had
received treatment for MS (as opposed to the
symptoms of MS), then the only question
before us would be whether we could apply
the straightforward logic of Lawson to an
ERISA case where the heightened Pinto
review obtains. Upon finding—as we have
in this case—that the administrator’s
discretion was not unlimited and that the
heightened standard of review applies, we
would be compelled to declare that
Hartford’s denial of benefits was unjustified
since it is undisputed that McLeod did not
receive treatment for MS during the look-
back period. There is, however, one
significant difference between McLeod’s
case and the one presented in Lawson: Here,
the policy language is more precise and
encompasses a broader range of elements in
its definition of what constitutes a pre-
existing condition than did the policy at
issue in Lawson.
In the Plan at issue here, a pre-
existing condition includes medical care
received for any “manifestations, symptoms,
findings, or aggravations related to or
resulting from such accidental bodily injury,
sickness, mental illness, pregnancy, or
substance abuse” (emphasis added) as
opposed to the policy at issue in Lawson
which defined a pre-existing condition as a
“Sickness, Injury, disease or physical
condition for which medical advice or
treatment was recommended by a Physician
or received from a Physician” during the
relevant look-back period. Lawson, 301
F.3d at 161.5
5 The Hartford Plan’s definition of
“medical care” is also extremely broad and
seems to encompass virtually any contact
between the patient and the physician,
even absent some affirmative act on the
part of the physician: “Medical Care is
received when: (1) a Physician is consulted

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Hartford places great stock in the
difference in the language of the two
policies, arguing that “[u]nlike the Plan in
this case, the Lawson policy’s definition of
pre-existing condition did not encompass
treatment for symptoms of a sickness.” At
first blush, this distinction seems
noteworthy, and the fact that the Hartford
P l a n i n c l u d e s w o r d s s u c h a s
“manifestations” and “symptoms,” which the
policy at issue in Lawson did not, seems
potentially significant.6 The District Court
certainly thought that to be the case when it
stated that: “The Plan does not require that a
participant’s disabling condition be
diagnosed within the look-back period in
order for it to be considered a ‘Pre-Existing
Condition’; rather, it merely requires that a
participant receive medical care for a
symptom or manifestation of the condition
during the look-back period.” McLeod v.
Hartford Life & Accident Ins. Co., 247 F.
Supp. 2d 650, 660 (E.D. Pa. 2003). The
Court explained that it was “eminently
reasonable for Hartford to conclude that
when Plaintiff sought treatment from Dr.
DiGregorio for numbness in her left side in
February 1999, Plaintiff sought treatment for
a ‘manifestation’ or ‘symptom’ of her MS.”
Id. We disagree.
As stated above, Hartford does not
define the term “symptom.” A dictionary
definition of the word “symptom” reads:
Symptom: 1. Med. A
f u n c t i o n a l o r v i t a l
phenomenon of disease; any
perceptible change in any
organ or function due to
morbid conditions or to
morbific influence, especially
when regarded as an aid in
diagnosis. Symptoms differ
from signs in the diagnosis of
a disease in that the former
are functional phenomena,
while the latter are incidental
or experimental.
2. That which serves to
or medical advice is given; or (2) treatment
is recommended, prescribed by, or
received from a Physician.” At oral
argument, we raised the question whether
McLeod was precluded from receiving
LTD benefits merely for having consulted
with a physician during the relevant look-
back period. We conclude, however, that
the language of the policy dictates that the
medical care at issue must be specifically
tied to the pre-existing condition or to the
symptoms thereof in order for the
exclusion to apply: “Pre-existing condition
means: (1) any accidental bodily injury,
sickness . . . or (2) any manifestations,
symptoms . . . for which you received
Medical Care . . . .” (emphasis added). As
we discuss below, just as a symptom can
only be a symptom if the underlying
condition causing the symptom is known
or suspected, so too medical care for that
condition or symptom can only be received
if the condition is known or suspected.
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.

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11
point out the existence
of something else; any
s i g n , t o k e n , o r
indication.
Funk & Wagnalls New Standard Dictionary
of the English Language 2246 (1942).
It appears to us from this definition
that a “symptom” is a meaningful term only
because it is a “symptom” in relation to
something else. McLeod’s symptom of
numbness became relevant as one the Plan
used to exclude her from coverage based on
a pre-existing condition only once it was
deemed a “symptom of MS.” If it were just
a random “symptom” of some undiagnosed
ailment, then Hartford would not be
concerned with it. Given that the symptom
becomes a factor in the exclusion process
only once it is tied to the diagnosis of the
sickness, in this case MS, we do not see on
what basis Hartford can successfully argue
that there exists a significant difference
between the language of the Hartford Plan
and the language of the insurance policy in
Lawson. Indeed, the Hartford Plan still
bases the exclusion on “symptoms . . . for
which you received Medical Care.”
(emphasis added). This construction simply
begs the obvious question: symptoms of
what? Hartford offers no satisfactory
answer to this question.
In Lawson, we sought to avoid
precisely the type of ex post facto denial of
benefits that Hartford has undertaken here:
Although we base our
decision on the language of
the policy, we note that
considering treatment for
symptoms of a not-yet-
diagnosed condition as
equivalent to treatment of the
u n d e r l y i n g c o n d i t i o n
ultimately diagnosed might
open the door for insurance
companies to deny coverage
for an y co n d i t io n the
symptoms of which were
t r e a t e d d u r i n g t h e
exclusionary period. “To
permit such a backward-
looking reinterpretation of
symptoms to support claims
denials would so greatly expand the
definition of preexisting condition as to
make that term meaningless: any prior
symptom not inconsistent with the ultimate
diagnosis would provide a basis for denial.”
301 F.3d at 166 (quoting In re Estate of
Monica Ermenc, 585 N.W .2d 679, 682 (Wis.
Ct. App. 1998)).
While this statement is dicta, it was
considered dicta, which we find persuasive.
Consistent with Lawson’s persuasive
reasoning, and the foregoing explanation of
the rationale of applying it to an ERISA
context, we hold that the phrase “symptoms
. . . for which you received M edical Care” in
the Hartford policy necessarily connotes an
intent to treat or uncover the particular
ailment which causes that symptom (even
absent a timely diagnosis), rather than some
nebulous or unspecified medical problem.
To hold otherwise would vitiate any
meaningful distinction between symptoms
which are legitimately moored to an
“accidental bodily injury, sickness, mental
illness, pregnancy, or episode of substance

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abuse,” and those which are not. It is simply
not meaningful to talk about symptoms in
the abstract: Seeking medical care for a
symptom of a pre-existing condition can
only serve as the basis for exclusion from
receiving benefits in a situation where there
is some intention on the part of the physician
or of the patient to treat or uncover the
underlying condition which is causing the
symptom.
Such a holding does not mean that we
require that a “correct” diagnosis be made
before the effective date of a policy in order
for an insurance company to be able to deny
coverage based on a pre-existing condition.
In Lawson, we explained the difference
between a “suspected condition without a
confirmatory diagnosis” and “a misdiagnosis
or an unsuspected condition manifesting
non-specific symptoms.” 301 F.3d at 166.
Despite numerous consultations with
physicians and multiple MRIs which could
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
MS to be revealed through the various
testing McLeod underwent during the look-
back period, none of the tests ever linked the
symptoms she was experiencing to MS. We
therefore conclude that the District Court
erred as a matter of law when it held that
Hartford’s determination that McLeod had
received medical care for symptoms of MS
during the look-back period was not
arbitrary and capricious.
IV. Conclusion
For the foregoing reasons, the
judgment of the District Court will be
reversed and the case remanded to the
District Court with instructions to enter an
order denying Hartford’s motion for
summary judgment and granting McLeod’s
motion for summary judgment, and for
calculation of the LTD benefits due to
McLeod.

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