In the
United States Court of Appeals
For the Seventh Circuit
No. 08-2074
T HE E STATE OF N ORMAN B LANCO,
by its personal representative S TEVEN C. B LANCO,
Plaintiff-Appellant,
v.
P RUDENTIAL INSURANCE C OMPANY OF A MERICA,
P RUVALUE INSURANCE B ENEFITS T RUST, and
P ORSCHE E NGINEERING S ERVICES, INCORPORATED ,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Indiana, Indianapolis Division.
No. 1:06-cv-01200-LJM-WTL— Larry J. McKinney, Judge.
A RGUED N OVEMBER 4, 2009—D ECIDED M AY 21, 2010
Before C UDAHY, FLAUM, and E VANS, Circuit Judges.
E VANS, Circuit Judge. The phrase “preexisting condition”
was frequently in the news as efforts to enact national
health care reform were debated over the last year. And
although our case today involves a preexisting condition
2 No. 08-2074
exclusion, there is a twist. The clause in this case is
not one that denies coverage for health care expenses.
Instead, it’s in an ERISA plan (the Employee Retirement
Income Security Act of 1974, 29 U.S.C. §§ 101 et seq.)
promising to pay long term disability benefits to
an employee who can no longer do his job. The case is
a sad one as the employee, Norman Blanco, died after
he struck out in the district court. His estate, which was
substituted to fill his shoes, has carried on with
this appeal from the judgment of the district court.
Blanco started working as an engineer at Porsche
Engineering Services, Inc., in Troy, Michigan, on April 4,
2005. He was 45 years old at the time. One month later,
he became a beneficiary under the company’s welfare
benefit plan, a plan covered by ERISA. The plan
was underwritten and administered by The Prudential
Insurance Company of America. It provided both short
and long term disability benefits (STD and LTD) for
Porsche employees who were unable to work.
On July 27, 2005, a little less than four months
after he came on board at Porsche, Blanco had a heart
attack. He was hospitalized until August 1 and again
from August 3 to 5. On August 25, being unable to
return to work, Blanco submitted a claim for both
STD and LTD benefits. On the attending physician
statement submitted along with his claim, a cardiologist,
Dr. Robert Fleming, noted that Blanco experienced an
acute myocardial infarction and that he suffered
No. 08-2074 3
from dilated cardiomyopathy 1 and congestive heart
failure (CHF).2 The doctor noted that Blanco was also
limited by his “[r]ecent MI - severe ischemia/dilated
cardiomyopathy, CHF class III-IV.”
Blanco’s claim for STD benefits was approved
but they expired on November 1, 2005. The claim for
LTD benefits, however, did not go Blanco’s way.
Prudential denied the claim pursuant to a preexisting
condition exclusion in the plan. The denial was affirmed
during the plan’s review process. Blanco’s ERISA suit
was ultimately rejected when the district court granted
Prudential’s motion for summary judgment.
If Blanco’s heart attack had occurred anytime after
May 4, 2006 (i.e., 282 days after it actually hit), the
1
This occurs when the heart cannot pump blood effectively
and becomes enlarged and weakened. Anthony S. Fauci et
al., Harrison’s Principles of Internal Medicine 1481 (17th ed.
2008) (“LV [left ventricular] and/or right ventricular (RV)
systolic pump function is impaired, leading to progressive
cardiac dilatation (remodeling).”).
2
Heart failure, or congestive heart failure, occurs when
the heart can no longer pump enough blood to the rest of
the body. Anthony S. Fauci et al., Harrison’s Principles of Internal
Medicine 1443 (17th ed. 2008) (“Heart failure (HF) is
a clinical syndrome that occurs in patients who, because
of an inherited or acquired abnormality of cardiac
structure and/or function, develop a constellation of clinical
symptoms (dyspnea [shortness of breath] and fatigue) and
signs (edema and rales) that lead to frequent hospitalizations,
a poor quality of life, and a shortened life expectancy.”).
4 No. 08-2074
preexisting exclusion clause in the plan would not
have kicked in. Because his disability occurred when it
did, Blanco had to get past two roadblocks to receive
benefits. The plan’s preexisting exclusion clause defeats
a claim for LTD benefits if an employee like Blanco:
A. received treatment, consultation, care or services
including diagnostic measures, or took prescribed
drugs or medicines, or followed treatment
recommendation in the 3 months prior to the
effective date of coverage, or
B. had symptoms for which an ordinarily prudent
person would have consulted a health care
provider in the 3 months prior to his effective date
of coverage.
Before we get to the main issue — whether the
preexisting condition exclusion as defined by the policy
was properly invoked — we must resolve a dispute over
the evidence. Instead of relying on the record before
Prudential when it made its decision, Blanco submitted
additional affidavits, his own and one from each
of three treating physicians. The affidavits recounted
Blanco’s visits to each physician and explained the
treatment he received. The district court, however,
excluded the affidavits because it determined that
the existing record was adequate for it to make an
informed and independent judgment.
The district court has the discretion to “limit the evidence
to the record before the plan administrator, or . . . [to]
permit the introduction of additional evidence necessary
No. 08-2074 5
to enable it to make an informed and independent
judgment.” Patton v. MFS/Sun Life Fin. Distribs., Inc., 480
F.3d 478, 490 (7th Cir. 2007). Therefore, we review a
decision on which route to take only for an abuse
of discretion. We only reverse the decision of the district
court if it cannot be rationally based upon the record
evidence, is based on an erroneous legal conclusion, or
is supported by clearly erroneous factual findings or
clearly appears arbitrary.
The most important factor a district court must
consider is whether the new evidence is necessary to
make an informed and independent judgment. The
affidavits, which were created months after the
examinations and with an eye towards litigation, do
not add much to the record. Indeed, they are
particularly unnecessary because the district court
already had the medical records the physicians created
while treating Blanco.
The district court properly considered other factors
as well. Evidence is more appropriately admitted
if it concerns important plan terms rather than historical
facts about the claimant. Since the affidavits deal
with historical facts concerning Blanco, this factor cuts
against admitting them. Additionally, the district court
may consider whether the plan administrator faced
a conflict of interest and whether the parties had a
chance to present their evidence in the administrative
proceeding. Patton, 480 F.3d at 491 (citing Quesinberry v.
Life Ins. Co. of N. Am., 987 F.2d 1017, 1027 (4th Cir. 1993)).
This factor is no help to Blanco because we have held
6 No. 08-2074
there is no conflict of interest when a company uses in-
house medical personnel to review medical records. See
Davis v. Unum Life Ins. Co. of Am., 444 F.3d 569, 575 (7th Cir.
2006). Furthermore, Blanco had other opportunities,
several in fact, to present this evidence at earlier stages
in the proceedings. Finally, excluding the “new evidence”
serves two im portant purposes—it discourages
sandbagging and pays tribute to the goal of requiring
the exhaustion of administrative remedies. For these
reasons, the district court was within its discretion
to exclude Blanco’s new affidavits.
The facts do not appear to be in serious dispute.
Blanco has a long history of progressively worsening
heart disease. He had a heart attack in 1999 and a stent 3
3
A stent is a wire metal mesh tube used to prop open an artery
during angioplasty—the technique of mechanically widening a
narrowed or obstructed blood vessel.
The stent is collapsed to a small diameter and put over a
balloon catheter. It’s then moved into the area of the
blockage. When the balloon is inflated, the stent expands,
locks in place and forms a scaffold. This holds the artery
open. The stent stays in the artery permanently, holds
it open, improves blood flow to the heart muscle and
relieves symptoms (usually chest pain). Within a few
weeks of the time the stent was placed, the inside lining of
the artery (the endothelium) grows over the metal surface
of the stent.
American Heart Association, http://www.americanheart.org/
presenter.jhtml?identifier=4721 (last visited Apr. 27, 2010).
No. 08-2074 7
inserted in 2002. He also had a cardiac catherization 4
in 2004. Blanco’s cardiomyopathy and CHF were
initially documented in 2004. At that time, he had
an ejection fraction (EF) of 20%, 5 which is significantly
below normal.
Cardiomyopathy and CHF are progressive conditions.
Once they exist, they don’t get better, only worse.
Therefore, Blanco’s cardiomyopathy and CHF were
certainly preexisting during the “look back” period—the
three months before his heart attack. During that
period, Blanco also visited a physician, Dr. Bobzien,
for testicular pain. During a routine examination, it
was discovered that Blanco had a blood pressure of
4
This is a procedure to examine blood flow to the heart and
test how well the heart is pumping. A doctor inserts a thin
plastic tube (catheter) into an artery or vein in the arm
or leg. From there it can be advanced into the chambers of the
heart or into the coronary arteries. This test can measure
blood pressure within the heart and how much oxygen
is in the blood. It’s also used to get information about
the pumping ability of the heart muscle. American
H e ar t A sso ciation, http://w w w .am erica n he ar t.o rg /
presenter.jhtml?identifier=4491 (last visited Apr. 27, 2010).
5
An ejection fraction measures how much blood the left
ven tricle pum ps out d uring every contraction. A
norm al ejection fractio n i s 5 5 -7 0 % . M ayo C linic,
http://www.mayoclinic.com/health/ejection-fraction/AN00360
(last visited Apr. 27, 2010).
8 No. 08-2074
210/132.6 Blanco explained that his blood pressure was
so high because he forgot to take his blood pressure
medication that day, although he usually did not forget
to take it. Dr. Bobzien recommended that Blanco be
hospitalized because he was in a hypertensive crisis.
Blanco talked Dr. Bobzien out of having him hospitalized
by insisting that he had just forgotten to take his
medication that day. Dr. Bobzien implored Blanco to
take his medication as quickly as possible, warned him
of potential symptoms to look for, and sent him on
his way.
With Blanco’s extensive medical history in mind, we
move on to the central issue: whether Blanco’s disability
was caused by a preexisting condition under either
subsection of the policy. We review the district court’s
denial of Blanco’s benefits de novo. We regularly recognize
and uphold preexisting condition exclusions. See e.g.,
Bullwinkel v. New England Mut. Life Ins. Co., 18 F.3d 429
(7th Cir. 1994); Smart v. State Farm Ins. Co., 868 F.2d 929, 936
(7th Cir. 1989).
Blanco had a preexisting condition under subsection (a)
of the policy. By stating that he regularly took his blood
6
Normal blood pressure is 90-119/60-79, pre-hypertension is
120-139/80-89, Stage 1 Hypertension is 140-159/80-89, and Stage
2 Hypertension is 160+/100+. Anthony S. Fauci et al.,
Harrison’s Principles of Internal Medicine 1553 (17th ed.
2008); N ational H ea rt L u n g a n d B lood Institute,
http://w w w .nhlbi.nih.gov /health/dci/Diseases/hyp/
hyp_whatis.html (last visited Apr. 27, 2010).
No. 08-2074 9
pressure medication, but forgot to do so on the day of
his doctor’s appointment, Blanco admitted he was taking
prescription drug medication for his heart during the look-
back period. Both sides agree that Blanco was taking
Lisinopril during the look-back period, but Blanco
argues that he was only taking it for hypertension and
not for any of the disabling conditions. Lisinopril
treats both hypertension and CHF. During the look-back
period Blanco had both hypertension and CHF. Therefore,
Blanco was using a prescription drug to treat his CHF
(one of his disabling conditions) during the relatively
short look-back period.
Blanco admits that he was taking prescription medication
for hypertension during the look-back period. That
triggers the preexisting condition exclusion under
subsection (a) of the policy. Blanco’s disabilities—CHF,
dilated cardiomyopathy—were almost certainly due, at
least in part, to Blanco’s extreme hypertension. Therefore,
even assuming he was taking prescription drugs just
for hypertension, he would not be eligible for disability
under the policy. Using the same logic, Blanco is not
eligible for LTD because he also received consultation
for his hypertension during his visit to the doctor
during the look-back period.
Blanco also had a preexisting condition under subsection
(b) of the policy, which defines a condition as preexisting
if there were symptoms during the look-back period
for which an ordinarily prudent person would have
consulted a health care provider. The applicability of this
subsection turns on the definition of the word symptom,
10 No. 08-2074
which is not defined in the policy. The dictionary defines
symptom as “subjective evidence of disease or physical
disturbance; broadly: something that indicates the
presence of bodily disorder.” Merriam-Webster,
http://www.merriam-webster.com/dictionary/symptom
(last visited Apr. 27, 2010). Blanco’s extraordinarily high
blood pressure during the look-back period is the only
potential symptom noted in the record for which
an ordinarily prudent person would have consulted
a health care provider.7 If we use the first part of the
definition, which is the medical definition of symptom,8
Blanco’s extraordinarily high blood pressure would
technically not be a symptom. If we use the broad
definition of a symptom, Blanco’s blood pressure would
be a symptom. The purpose of the policy is to exclude
from coverage a person who is aware of something—be it
a sign or symptom—for which a reasonably prudent
person should seek treatment. Since Dr. Bobzien told
7
It would be almost impossible for a person in Blanco’s
condition (EF 20%) not to have had symptoms of his various
heart diseases during the look-back period unless he did not so
much as walk up a flight of stairs. Since there is no evidence in
the record of such symptoms, however, we must assume they
did not occur.
8
Medical professionals typically differentiate between a sign
and a symptom. A symptom is an indicator of a disease that a
patient reports (e.g., fatigue or chills) whereas a sign is an
indicator of a disease that a health professional discovers during
an examination (e.g., temperature of 104 degrees).
No. 08-2074 11
Blanco of his extraordinarily high blood pressure and
recommended hospitalization, Blanco’s hypertension was
a preexisting condition under subsection (b) of the policy.
Therefore, Blanco is not eligible for LTD because his
disability— in particular his CHF and dilated
cardiomyopathy—was due to this preexisting condition.
For these reasons, the judgment of the district court is
A FFIRMED.
5-21-10