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Fortis Benefits Insurance Company Wrongly Denied Disability Benefits to Montana Paralegal with Cancer

A federal court in Montana ruled in favor of a paralegal seeking long-term disability (“LTD”) benefits from Fortis Benefits Insurance Company (“Fortis”) after brain and bone cancer forced her to stop working.


Ms. Elliot was diagnosed with breast cancer in 1995, successfully underwent treatment, and her cancer was found to be in complete remission. To decrease the risk that she would develop cancer in the future, she was prescribed Tamoxifen beginning in July 1996. During follow-up appointments in 1997 and as late as September 1999, Ms. Elliot’s oncologists deemed her cancer-free.

On September 27, 1999, Ms. Elliot began a new job as a paralegal and received LTD coverage under her employer’s policy with Fortis. In December 1999, Ms. Elliot’s doctor noted elevated levels of cancer antigens and, on August 19, 2000, she was diagnosed with brain and bone cancer. Terminally ill, Ms. Elliot filed a claim for LTD benefits.

The Disability Policy

The LTD policy excluded benefits for any disability caused by a pre-existing condition, which was defined, in part, as follows:

A pre-existing condition means an injury, sickness, or pregnancy … which you:

  • Consulted with or received advice from a licensed medical practitioner; or
  • Received medical care, treatment, or services, including taking drugs, during the 3 months (“look back period”) that end on the day before you became insured under the policy.

Fortis’ Claim Review and the Court’s Decision

On October 30, 2000, Fortis sent Ms. Elliot a letter explaining the pre-existing condition limitation of her policy. However, Fortis included a requirement (not actually found in the policy) that a claimant would need to return to work for at least one full day following three consecutive months of nontreatment. Because Ms. Elliot had taken Tamoxifen and had periodic checkups, Fortis found that her breast cancer was a pre-existing condition and denied her claim.

When Fortis further denied Ms. Elliot’s appeal, she filed a lawsuit to recover her LTD benefits. The court agreed with Ms. Elliot’s doctor that Tamoxifen was not prescribed for the treatment of any active cancer or other disease. Since there was no sickness during the look-back period, there could be no treatment for a sickness. Therefore, the court held that Ms. Elliot did not have a pre-existing condition, as defined by the policy, and was eligible for LTD benefits.

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