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VAN VOLKENBURG v. CONTINENTAL CAS. INS. CO.

February 20, 1996

Audrey Van Volkenburg, Plaintiff,
v.
Continental Casualty Insurance Company, Defendant.



The opinion of the court was delivered by: SCOTT

 Background

 Plaintiff Audrey Van Volkenburg, claims that defendant Continental Casualty Insurance Company ("CNA") wrongfully denied her claim for long-term disability benefits after she became unable to work during her fight against cancer. Defendant contends that plaintiff's period of disability resulted from a pre-existing condition which negated coverage.

 On July 6 and 7, 1995, a non-jury trial was conducted to determine if plaintiff's disability resulted from a pre-existing condition which would exclude coverage under the long-term disability policy issued by defendant.

 The Trial Evidence

 The vast majority of the factual circumstances surrounding this matter are not disputed. The parties stipulated that the primary issue in the case was whether a pre-existing condition worked to preclude plaintiff from receiving long-term disability benefits (July 6 TT. at 2) *fn1" ; that plaintiff's notice of claim was timely filed and in proper form (July 6 TT. at 5); that defendant does not dispute that plaintiff's cancer was not diagnosed until after the policy went into effect on April 1, 1991 (July 6 TT. at 5-6); and that plaintiff exhausted all necessary internal procedures and appeals with CNA (July 6 TT. at 82-83).

 At trial, plaintiff testified she first discovered a lump in her left breast in January 1991 and that on January 16, 1991 she saw her then-primary physician, Dr. Ruh regarding the lump. At that time, Dr. Ruh palpated the lump and sent plaintiff for a mammogram. (July 6 TT. at 8-9) On January 18, 1991 a mammogram was taken. On January 23, 1991 plaintiff went back to Dr. Ruh who advised her that the mammogram was negative.(July 6 TT. at 10) According to plaintiff, Dr. Ruh advised her that the lump was "just a cyst". At no time did Dr. Ruh mention cancer during this visit. (July 6 TT. at 10)

 On March 14, 1991, plaintiff underwent a pre-employment physical in the health office at OLV. Plaintiff testified that she informed the doctor conducting the physical that she had a lump on her left breast, and that she was going to have it removed. The OLV Employee Health History record, admitted into evidence as Plaintiff's Exhibit 12, reflects that the doctor conducting the examination did not examine plaintiff's breast. (July 6 TT. at 17-18) CNA does not contend that plaintiff hid the existence of the lump from OLV in any way.

 Plaintiff next saw Dr. Ruh on March 22, 1991. At that time, the lump in her breast had grown and was painful. Dr. Ruh once again palpated the lump and recommended that plaintiff see Dr. Apen, a surgeon. Once again, Dr. Ruh did not mention or discuss the possibility of cancer with plaintiff. (July 6 TT. at 11)

 Plaintiff first saw Dr. Apen on March 28, 1991. At that appointment, Dr. Apen palpated the lump and asked if it was painful. Plaintiff testified that she told Dr. Apen that it was painful and that she wanted the lump removed. Dr. Apen diagnosed the lump as being a "cyst" and agreed to remove it. Just as with Dr. Ruh, Dr. Apen did not discuss the possibility of cancer with the plaintiff.(July 6 TT. at 12)

 Dr. Apen removed the cyst on April 5, 1991 in the outpatient department at Mercy Hospital. After noting to her that the cyst was larger than he expected, Dr. Apen drained the wound. According to plaintiff, the surgery did not take long and she went home. (July 6 TT. at 13)

 On April 9, 1991, plaintiff once again saw Dr. Apen. At that time, Dr. Apen advised plaintiff that the biopsy of the lump was cancerous and diagnosed the condition as "adenoma carcinoma". Plaintiff testified that Dr. Apen appeared surprised at the biopsy results because the symptoms of cancer were not present and that it was unusual for someone of her age to develop this problem. Plaintiff testified that this was the first time Dr. Apen had ever mentioned cancer to her. (July 6 TT. at 14)

 Plaintiff subsequently underwent chemotherapy treatments, a bone marrow transplant, radiation treatments, a modified radical mastectomy of her breast on April 16, 1991, and further surgery in May of 1991 to deal with metastatic cancer which had spread to her neck. (July 6 TT. at 15-16)

 On cross-examination, plaintiff testified that she has sued Dr. Ruh for malpractice because he did not obtain a biopsy of the lump in her breast in January of 1991. (July 6 TT. at 29, 33-34).

 Dr. Edward Apen also testified at trial. Dr. Apen first saw plaintiff on March 28, 1991. According to Dr. Apen, upon examination of plaintiff and reviewing the results of the mammogram ordered by Dr. Ruh, he concluded that the lump in plaintiff's breast was fibrocystic disease. This was consistent with Dr. Ruh's findings. Dr. Apen recommended excision of the lump. (July 6 TT. at 41-42) Dr. Apen testified that he thought the lump was a benign thick tissue often seen in young women that disappears as the women age. (July 6 TT. at 42) According to Dr. Apen, the lump in plaintiff's breast was tender and painful and that such characteristics are not typical of a cancerous mass. (July 6 TT. at 44) Indeed, Dr. Apen's notes from the March 28, 1991 examination describe the lump as "nothing suspicious", by which Dr. Apen testified that he meant "nothing suspicious for cancer". (July 6 TT. at 54)

 Dr. Apen testified that as he was removing the lump on April 5, 1991, he did consider that the mass could be a "benign tumor" because it looked like one at that point. Notwithstanding this possibility, Dr. Apen's postoperative diagnosis, as reported in the Postoperative Report admitted as ...


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