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VANVOLKENBURG v. CONTINENTAL CAS. CO.

November 8, 1996

AUDREY VANVOLKENBURG, Plaintiff, -vs- CONTINENTAL CASUALTY COMPANY, Defendant.


The opinion of the court was delivered by: CURTIN

 CURTIN, District Judge

 BACKGROUND

 Appellant, Continental Casualty Company ("CNA") appeals from a final judgment by United States Magistrate Judge Hugh B. Scott following a bench trial, pursuant to the parties' voluntary consent to waive their rights to proceed before a District Court Judge and election to take any appeals to a District Judge in accordance with 28 U.S.C. § 636(c) (R 53-54).

 After discovering a lump in her left breast, appellee Audrey VanVolkenburg visited her primary physician, Dr. Ruh, on January 16, 1991, regarding the lump. Dr. Ruh examined the breast, palpated and measured the lump, and sent appellee for a mammogram, which was conducted on January 18, 1991. On January 23, 1991, Dr. Ruh informed appellee that the mammogram was negative, diagnosed the lump as "just a cyst," and explained that she should return if she had any problems with the lump. During this visit, Dr. Ruh did not mention the possibility of cancer (R 68).

 On March 14, 1991, appellee underwent a pre-employment physical in the health office of her future employer, Our Lady of Victory Hospital ("OLV"). During this examination, appellee informed the doctor of the existence of the lump and explained that she was going to have it removed. This doctor did not examine appellee's breast (R 75-76). CNA does not contend that appellee hid the existence of the lump from OLV in any way (R 247).

 On March 22, 1991, appellee returned to Dr. Ruh because the lump had increased in size and become painful. After palpating the lump, Dr. Ruh referred appellee to Dr. Apen, a surgeon. Once again, Dr. Ruh did not mention the possibility of cancer (R 69).

 On March 28, 1991, appellee went to see Dr. Apen. He examined the lump, reviewed the results of the mammogram ordered by Dr. Ruh, and concluded that the lump was a cyst. Appellee requested that Dr. Apen remove the cyst since it was so painful, and he agreed to conduct the outpatient procedure on April 5, 1991 (R 70). Dr. Apen did not discuss the possibility of cancer with appellee, and his examination notes from this first visit describe the lump as "nothing suspicious" (R 112).

 On April 1, 1991, appellee commenced her employment at OLV. Part of appellee's benefits package was a long-term disability policy serviced by appellant which became effective on her commencement date (R 19). This policy is covered by ERISA, 29 U.S.C. § 1001 et seq..

 Dr. Apen removed the cyst on April 5, 1991. During the procedure, the doctor noted that the cyst was larger than he had expected; nevertheless, he still did not consider the possibility that the lump could be cancerous. Consistent with his belief prior to the surgery, Dr. Apen's postoperative diagnosis was that the mass was a cyst (R 105-06).

 On April, 9, 1991, Dr. Apen informed appellee that according to a biopsy of the lump it was cancerous. Appellee testified that Dr. Apen appeared surprised at the biopsy results since appellee had not presented with the symptoms of cancer and since it is unusual for a woman her age to develop this problem (R 72). Dr. Apen testified that appellee was not treated for cancer until after it was diagnosed on April 9 (R 116). On cross-examination, he agreed that appellee probably had breast cancer for three and one-half years prior to April 1, 1991, but he noted that this does not mean that appellee's pre-April 9 treatments were for cancer (R 123-125).

 Appellee subsequently underwent chemotherapy treatments, a bone marrow transplant, radiation treatments, a modified radical mastectomy of her left breast, and surgery on her neck to excise metastic cancer which had spread to her lymph nodes. Appellee was disabled from work on April 16, 1991, and remained disabled for 64 weeks (R 56). Dr. Apen testified that the spread of the cancer to appellee's lymph system was the cause of the disability which prevented her from returning to work. On cross-examination, Dr. Apen refused to agree that appellee had lymphatic cancer prior to April 1, 1991, and stated that it is not possible to determine the life of the cancer from the pathology reports (R 126-27).

 Appellee applied for disability benefits under the long-term policy at issue and was denied on December 11, 1991. She requested review of this decision on two separate occasions during 1992, and both times appellant affirmed its denial. On October 22, 1992, appellee instituted an appeal with the Appeals Committee of CNA Insurance Companies; and on November 20, 1992, the committee upheld the previous decision to deny benefits on the grounds that appellee's condition was pre-existing under the terms of the policy (R 3).

 Appellant appeals Magistrate Judge Scott's judgment arguing that the "pre-existing condition" language of the policy is not ambiguous and that treatment of a condition not yet diagnosed which later turns out to be cancer ...


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