Should an employee’s disability caused by malignant melanoma be subject to a disability policy’s pre-existing condition exclusion where during an alleged “look-back” period the employee was referred to a dermatologist on suspicion of having basal-cell carcinoma?  The First Circuit recently answered this question in today’s notable decision, Lavery v. Restoration Hardware Long Term Disability Benefits Plan, No. 18-1885, 2019 WL 4155038 (1st Cir. Sept. 3, 2019).  In short, the answer is no.

Facts:  Lavery worked for Restoration Hardware as a Construction Associate and then as a Regional Facilities Manager effective May 14, 2014.  In his new position he became eligible for long-term disability (“LTD”) coverage as of June 1, 2014 under a policy insured by Aetna Life Insurance Company.  The LTD Policy contains the following pre-existing condition exclusion:  

Long Term Disability Coverage does not cover any disability that starts during the first 12 months of your current Long Term Disability Coverage, if it is caused or contributed to by a “pre-existing condition.”
Continue Reading First Circuit Holds that Aetna Life Insurance Company Abused its Discretion in Applying Pre-existing Condition Exclusion to Malignant Melanoma