Van Volkenburg v. Continental Cas. Ins. Co.

• Decision Date: 20 February 1997
• Docket Number: Civ. No. 94-324.
• Citation: 971 F.Supp. 117
• Parties: Audrey VAN VOLKENBURG, Plaintiff, v. CONTINENTAL CASUALTY INSURANCE COMPANY, Defendant.
• Court: U.S. District Court — Western District of New York

971 F.Supp. 117

Audrey VAN VOLKENBURG, Plaintiff, v. CONTINENTAL CASUALTY INSURANCE COMPANY, Defendant.

Civ. No. 94-324.

United States District Court, W.D. New York.

February 20, 1997.

Leonard Berkowitz, Orchard Park, NY, for Plaintiff.

William S. Reynolds, Oshea, Reynolds & Cummings, Buffalo, NY, for Defendant.

MEMORANDUM & DECISION

SCOTT, United States Magistrate Judge.

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 preexisting condition worked to preclude plaintiff from receiving long-term disability benefits (July 6 TT. at 2)¹; 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).

The parties also agree that plaintiff began employment at Our Lady of Victory Hospital (OLV) as a Licensed Practical Nurse (LPN) on April 1, 1991 (July 6 TT. at 8) and that the long-term disability policy at issue ("the policy") was part of plaintiff's benefits package as an employee of OLV and that the effective date of the policy was April 1, 1991. (July 6 TT. at 19-20).

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 Plaintiff's Exhibit 14, was that the mass was a cyst. (July 6 TT. at 47-48).

Dr. Apen testified that the first time he knew it was cancer was April 9, 1991 when he read the pathology report. Dr. Apen also testified, however, that had he known it was cancer prior to the surgery, he still would have proceeded in the same manner.² Dr. Apen testified that the excision of the lump is not adequate treatment for cancer and that a modified radical mastectomy was performed because there was some residual cancer in the breast tissue. (July 6 TT. at 49-50) The pathology performed after the mastectomy indicated that the cancer had spread to plaintiff's lymph glands which necessitated chemotherapy. (July 6 TT. at 51-52) Dr. Apen testified that the chemotherapy would prevent plaintiff from working.³ (July 6 TT. at 53) Dr. Apen stated that plaintiff was not disabled until April 9, 1991 or April 19, 1991 when there was a diagnosis of metastatic cancer. Finally, Dr. Apen testified that plaintiff was not treated for cancer until after it was diagnosed on April 9, 1991. (July 6 TT. at 58).

On cross-examination, Dr. Apen testified that the standard treatment upon observing a breast mass in a young women is to watch it for two months, and if it doesn't go away, perform a biopsy. (July 6 TT. at 62) A somewhat existential dialog between Dr. Apen and defendant's counsel concluded with Dr. Apen's testimony that plaintiff probably had breast cancer for three and one-half years prior to April 1, 1991 (July 6 TT. at 65-67) However, Dr. Apen declined to agree that plaintiff had lymphatic cancer prior to April 1, 1991 and stated that it is not possible to determine how long plaintiff had lymphatic cancer from the pathology reports because the growth of this disease is highly differentiated. (July 6 TT. at 68-69).

On re-direct, Dr. Apen testified that the excision of the actual mass removed from plaintiff on April 5, 1991 in and of itself would not have prevented her from returning to work within a few days. (July 6 TT. at 76) It was the invasion of the lymph system which caused plaintiff's disability. (July 6 TT. at 79) Finally, Dr. Apen testified that if he had suspected the lump to be cancerous he would probably have performed an incisional biopsy, as opposed to the excisional biopsy which was performed, because if there is a clinical impression that it is a cancer, it is likely that major definitive treatment would be required. (July 6 TT. at 81).

Dr. Richard G. Cooper testified as an expert witness on behalf of the defendant. Dr. Cooper testified that, in his opinion, plaintiff "sought advice because of a palpable lesion in her breast, which she found in January, for which a subsequent workup revealed it to be malignant". (July 7 TT. at 6) Dr. Cooper opined that the lump for which plaintiff sought treatment from Drs. Ruh and Apen prior to April 1, 1991 was the same lump which turned out to be cancerous. (July 7 TT at 7) This is not seriously disputed.

On cross-examination, Dr. Cooper agreed that the mammogram taken of plaintiff in January 1991 was negative for any malignant lesions. (July 7 TT. at 13) Dr. Cooper testified that the malignancy was not diagnosed until April 5, 1991 when Dr. Apen performed the initial surgery. (July 7 TT. at 16) Dr. Cooper also testified that "ideally", once the lump was determined to be malignant, and assuming the cancer had not spread outside the lump, the lymph nodes should be removed and radiation therapy would be required. Dr. Cooper testified that had the cancer not metastasized the plaintiff would have been able to return to work in two months, perhaps sooner, after excision of the cancerous lump. (July 7 TT. at 22-23).

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