Appeals from the United States District Court for the
District of Massachusetts [Hon. Denise J. Casper, U.S.
A. Medley, with whom Kenneth J. Kelly and Epstein Becker
& Green, P.C. were on brief, for appellants.
Stephen Churchill, with whom Fair Work, P.C. was on brief,
Lynch, Circuit Judge, Souter, [*] Associate Justice, and Kayatta,
Kayatta, Circuit Judge.
being diagnosed with malignant melanoma, John Lavery applied
for benefits under his employer's long-term disability
benefits plan, which Aetna Life Insurance Company
administered and funded. After Aetna denied Lavery's
application under the plan's exclusion for disabilities
caused by pre-existing conditions, Lavery brought this
lawsuit in federal district court against Aetna and the plan,
alleging that the denial of his disability benefits claim
violated the Employee Retirement Income Security Act (ERISA),
29 U.S.C. § 1001 et seq. The district court
agreed with Lavery and awarded him back benefits, interest,
fees, and costs. The defendants appealed. For the following
reasons, we affirm and remand for any further proceedings
that may be necessary.
Hardware offers qualifying employees long-term disability
insurance coverage through the "Restoration Hardware
Long Term Disability Benefits Plan" ("Plan").
The Plan, underwritten by Aetna Life Insurance Company, is an
employee benefits plan governed by ERISA. Aetna is also the
Plan's claims administrator.
Plan contains a "pre-existing conditions" clause
that excludes coverage for certain disabilities. It states:
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."
A disease or injury is a pre-existing condition if, during
the 3 months before the date you last became covered:
• it was diagnosed or treated; or
• services were received for the disease or injury; or
• you took drugs or medicines prescribed or recommended
by a physician for that condition.
three-month period before the coverage date is referred to as
the "look-back" period.
worked for Restoration Hardware, first as a
"Construction Associate" and then as a
"Regional Facilities Manager/Store Facilities
Leader." On April 14, 2014, Lavery sought medical
attention for a skin lesion on his back that had been present
for six months. His primary care physician, Dr. Anthony
Lopez, observed that the lesion might be basal-cell
carcinoma. He referred Lavery to a dermatologist. Dr. Lopez
did not recommend any other actions, provide any treatment,
prescribe any medications, or take any other action himself.
10, 2014, Lavery was examined by a dermatologist, Dr. Eileen
Deignan, who decided to biopsy the lesion. On June 19, 2014,
Dr. Deignan diagnosed the lesion as malignant melanoma, and
Lavery underwent surgery on June 30 to have the tumor and
certain lymph nodes removed. Dr. Lopez later declared that he
was surprised to learn that Lavery was diagnosed with
malignant melanoma and that he had not discussed "any
treatment, recommendations or medications for malignant
melanoma with Mr. Lavery during the April 25, 2014[, ]
stopped working on September 30, 2014, subsequently claimed
disability, and began receiving short-term disability
benefits because of the malignant melanoma. In late January
2015, Lavery's claim was converted to a claim for
long-term disability coverage. Aetna informed Lavery:
According to the information in your file, your coverage
under the Restoration Hardware, Inc. plan became effective on
06/01/2014 and you have claimed disability as of 9/30/2014.
Your coverage was in effect for less than 12 consecutive
months as of 9/30/2014, thus we must determine whether you
received medical treatment/services, or were prescribed
medication during the three month period between 3/1/2014 and
claim was assigned to Therese Leimback, an Aetna disability
benefits manager (DBM). Leimback referred the claim to Pedro
Cortero, an internal clinical consultant, to perform a
"pre-existing condition review." In his assessment
on March 25, 2015, Cortero stated:
There is no evidence of a definitive diagnosis and management
rendered for [Lavery's] malignant melanoma during the
look back period. Dr. Lopez assessment on 4/25/14 was approx.
5 mm raised lesion on R lower back questionable for BCC
[basal-cell carcinoma] with referral to dermatology. The
lesion may be present for the past six months but remained
undiagnosed. Definitive diagnosis was therefore confirmed
only after a wide local excision and biopsy on 6/30/14 which
has confirmed his melanoma and Basal cell Carcinoma (BCC) was
same day, Leimback acknowledged Cortero's clinical
assessment and made an internal note that she would
"recommend approval of [Lavery's] claim and obtain
updates as recommended by clinical."
four days later, Leimback's supervisor, Kathy Leonard,
wrote that "[Leimback] recommend[ed] denial due to pre
ex condition." Leonard further stated that she
"agree[d] [that Lavery] was seen/treated during the look
back period" and concluded that Lavery's claim
should be denied. Lavery's claim file contains nothing
from Leimback herself confirming this about-face. Nor does it
contain any explanation for the change in Leimback's
sent Lavery a denial letter on March 30, 2015, stating in
Based on the clinical review of the medical records we
received, we have concluded that you received medical
treatment during the preexisting condition period of March 1,
2014 and May 31, 2014 for a skin lesion, which was diagnosed
as melanoma of skin. As such, your Long Term Disability
claim has been denied, ...