:: Third Circuit Takes Expansive View Of Preexisting Condition Exclusion

he implication from [the Plaintiff’s] argument is that he falls into the category of “a misdiagnosis or an unsuspected condition manifesting non-specific symptoms,” which under both McLeod and Lawson would not be demonstrative of a pre-existing condition. Contrary to Doroshow’s claims, however, the record plainly demonstrates otherwise. Based on his family history of ALS and his medical records, we conclude that it is clear that Doroshow sought advice for ALS when he visited Dr. oldstein during the look-back period. Therefore, he had a “suspected condition without a confirmatory diagnosis,” which may appropriately be deemed a pre-existing condition.

Doroshow v. Hartford Life & Accident Ins. Co., 2009 U.S. App. LEXIS 16820 (3d Cir. Pa. July 30, 2009)

Jay Doroshow applied for disability benefits following a diagnosis of Amyotropic Lateral Sclerosis (ALS) on March 15, 2007.   ALS (more familiarly known as Lou Gehrig’s disease) is one of several motor neuron diseases (MNDs). MND’s are progressive neurological disorders that destroy motor neurons, the cells that control essential voluntary muscle activity such as speaking, walking, breathing, and swallowing.

The diagnosis of the disease is clinical. There are no specific tests to diagnose MNDs. Neurological exams are required to assess motor and sensory skills, nerve function, and a variety of tests are necesssary to rule out other diseases.

Thus, when Doroshow sought medical advice for certain non-specified symptoms in July of 2005, he began a series of medical visits that could ultimately be viewed, in retrospect, as treatment for a pre-existing condition