In a brief per curiam decision dated June 11, 2019, and not designated for publication, a panel of the U.S. Court of Appeals for the Fifth Circuit affirmed a decision of the U.S. District Court for the Southern District of Mississippi rejecting United of Omaha Life Insurance Company’s application of a pre-existing condition exclusion to the claim for long-term disability benefits of a woman with metastatic ovarian cancer. It was undisputed that the woman’s lawsuit was governed the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001 et seq.

United of Omaha claimed that because the plaintiff/claimant was treated for pleural effusion, a symptom that ultimately turned out to be related to ovarian cancer, during the pre-existing condition look-back period found in the policy, the cancer is therefore a pre-existing condition. The district court and court of appeals rejected this logic, finding that since pleural effusion could be caused by any number of conditions, and her treating physicians did not suspect ovarian cancer at the time, the pre-existing condition exclusion was not applicable. The court of appeal held that finding otherwise was an abuse of the claims administrator’s discretion.

Because this decision is not to be published, it is not binding precedent in the Fifth Circuit, but the decision does give some hope to claimants fighting pre-existing condition exclusions in LTD policies in the Fifth Circuit. The court cited with approval the Fifth Circuit’s previous decision claimant-friendly decision on pre-existing conditions, Ross v. Western Fidelity Insurance Co., 872 F.2d 665 (5th Cir. 1989), decision clarified on reh’g, 881 F.2d 142 (5th Cir. 1989) and recognized it as binding and applicable precedent in the Fifth Circuit. In addition, it cited with approval favorable decisions from other circuits and district court decisions applying Ross. V. Western Fidelity to reject the application of pre-existing condition exclusions. The case is Smith v. United of Omaha Life insurance Company, Docket No. 18-60753 in the court of appeal.