Legal Question in Insurance Law in California

Long Term Disability

My LTD ins. co. has declined my claim based on what they claim was a preexisting condition. Prior to a recent kidney transplant I was on dialysis preceded by progressive kidney failure yet I had no diagnosis of symptoms of my disability. Soon after the transplant I had acute, severe symptoms of neuropathy in my feet leading to my inability to sit or stand for any extended period of time. At the time of my transplant prior meds were discontinued and a new anti-rejection drug was prescribed to me. Since the neuropathy was so severe and concurrent with the prescribing of the new drug, I contend the drug and not some unnamed pre-existing condition caused the neuropathy thereby creating a �new condition� independent of the previous conditions i.e., not caused by the kidney disease itself, the original diagnosis. The drug co.'s website states a 23% chance neuropathy can occur in patients using the drug. My neurologist concedes there is a good probability it is the cause of the condition but won�t be definitive. There is no definitive way of knowing the exact etiology of the condition. Do I have a good case for a bench hearing? Is there any precedence in arguing the case of a �new condition� in regards to preexisting clauses?


Asked on 8/20/03, 3:10 pm

1 Answer from Attorneys
Steven Levy Law Office of Steven R. Levy

Re: Long Term Disability

The answer to your question is uncertain and depends on several key facts. Most LTD insurance policies become incontestible after a set period of time (in California and most other states, this can be true even if the policy does not say so). Generally, if the policy is in place for two years before you become disabled, they cannot contest on the basis of pre-existing condition.

Also, if on your application you disclosed all pertinent medical information then known (i.e., the application was the truth, the whole truth, and nothing but the truth) and the underlying condition arose some period of time subsequently, you should be afforded coverage.

These are the two key questions/factors in determining a clearer answer to your question.

You should definitely contact an attorney knowledgable in this area of the law (insurance/bad faith law and disability claims in particular). There are several disability carriers out there that presently have thousands of claims pending against them involving bad faith denial of claims.

THIS INFORMATION IS BASED ON GENERAL PRINCIPLES OF LAW AND IS PROVIDED AS A COURTESY ONLY. THIS IS NOT INTENDED TO, AND DOES NOT CREATE AN ATTORNEY-CLIENT OR OTHER ONGOING RELATIONSHIP. YOU SHOULD SEEK THE ADVICE OF AN EXPERIENCED ATTORNEY AS SOON AS YOU HAVE ANY LEGAL QUESTION. DELAY, FAILURE TO ACT, OR IMPROPER ACTS CAN RESULT IN A COMPLETE LOSS OF LEGAL RIGHTS. THIS AUTHOR WILL NOT BE UNDERTAKING ANY ACTIVITY ON YOUR BEHALF UNLESS EXPRESSLY AGREED, IN WRITING, TO DO SO.

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Answered on 8/25/03, 8:37 pm


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