Opinion
No. 79CA0151
Decided September 13, 1979.
Insurer appealed judgment awarding insured medical expenses under a health and accident insurance policy.
Affirmed
1. INSURANCE — No Illness Diagnosed or Treated — No Symptoms — Prior — Effective Date of Policy — Exclusionary Clause — Inapplicable — Exploratory Surgery — Revealed — Previously Existing Benign Condition. Where doctor was unable to diagnose or treat any sickness of insured prior to effective date of insurance, and where insured evidenced no symptoms during that period, the clause in employee health insurance excluding "sickness first manifested" prior to effective date of coverage was not applicable to prevent insured from recovering cost of exploratory surgery which revealed presence of benign condition which doctor had suspected to exist at times of previous examinations.
Appeal from the Superior Court of the City and County of Denver, Honorable Charles E. Bennett, Judge.
Bosworth Slivka, P.C., Bruce G. Smith, for plaintiff-appellee.
Littell, Everstine Dickinson, Richard L. Everstine, for defendant-appellant.
Defendant, American Family Mutual Insurance Company, appeals the judgment of the trial court awarding plaintiff medical expenses under a health and accident insurance policy. We affirm.
In April 1976, during a routine pelvic examination, plaintiff's physician discovered a "fullness," which he was unable to positively diagnose. However, he testified that he suspected it was a small ovarian cyst or a cyst-like structure that appeared temporarily during ovulation. The only action he advised was for plaintiff to have the condition checked at her next routine examination. He told plaintiff that no treatment was necessary. At a subsequent examination in September 1976, the physician made no finding or notation regarding the condition, and his testimony was that "there was a normal examination at that time."
At the time of these examinations, plaintiff was covered by a group health insurance policy provided by her employer. When she changed jobs, she obtained the instant insurance policy from defendant, to be effective December 28, 1976. Her next gynecological examination in February 1977, revealed that the suspected cyst had grown, and plaintiff's doctor performed exploratory surgery in March for diagnostic purposes. The surgery revealed a benign condition (tubovarian adhesions) which would not have necessitated surgery had it been otherwise identifiable.
Defendant contends that the surgical expenses were excluded by its insurance policy, based upon the following relevant portions of the policy:
"Medical expenses shall not be covered under this policy if such expenses are incurred for services, supplies or treatments:
. . . .
for injury sustained or sickness first manifested, whether or not initially diagnosed accurately, prior to the date the person on whose account such expense is incurred became an insured . . . ."
The trial court found that there was no manifest sickness. From the record, we also conclude there was no sickness.
"Sickness" is defined as "the condition of being ill . . . a disordered, weakened, or unsound condition" Webster's Third New International Dictionary 2111 (1966).
"Sickness is deemed to "originate" when it first becomes manifest by a symptom or condition from which one learned in medicine could with reasonable accuracy diagnose the specific disease which thereafter was the cause of the hospital confinement."
Richards v. American Security Life Insurance Co., 303 P.2d 1110 (Okla. 1956)(syllabus). Accord, American Insurance Co. v. Neal, 354 S.W.2d 741 (Ark. 1962), ("the condition should be deemed to have had its inception either at the time it became active, or when sufficient evidence existed to allow a reasonably accurate diagnosis . . . .")
[1] Here, the doctor testified that plaintiff had no sickness at the time of the April or September examinations, and he was unable to make any diagnosis or recommend any treatment at those times. Also, during this period, plaintiff herself had no pain, discomfort, or awareness that she had any physical abnormality.
Consequently, the court correctly found that the company failed to prove that the policy exclusion was applicable. See West v. Credit Life Insurance Co., 30 Colo. App. 455, 494 P.2d 601. Therefore, plaintiff's surgical expenses are covered by the defendant's policy which also provided that benefits would be payable for necessary treatments and services recommended by a physician.
Judgment affirmed.
JUDGE RULAND and JUDGE STERNBERG concur.