STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PHILIP S. BENNETT, SR., )

)

Petitioner, )

)

vs. ) CASE NO. 93-6939

) DEPARTMENT OF MANAGEMENT ) SERVICES, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, this cause came on for final hearing before P. Michael Ruff, duly-designated Hearing Officer of the Division of Administrative Hearings, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Brant Hargrove, Esquire

1343 East Tennessee Street Tallahassee, Florida 32308

For Respondent: Augustus D. Aikens, Jr., Esquire

Benefit Programs and Legal Services Division of State Employees' Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, Florida 32301-4876

STATEMENT OF THE ISSUES

The issues to be resolved in this proceeding concern whether the Petitioner, Philip S. Bennett, Sr., is entitled to reimbursement from the State of Florida Group Health Self Insurance Plan for services rendered him by John S. Dozier, D.M.D., in connection with treatment received by the Petitioner for a "localized mucogingival defect" (abscess and infection) occurring around the first upper molar tooth on the left side of the patient's mouth.

PRELIMINARY STATEMENT

This cause arose on October 26, 1993, when the Respondent, Department of Management Services, Division of State Employees' Insurance (Department), advised the Petitioner that his request for reimbursement for the cost of treatment for an infection and abscess of the gum immediately adjacent to the first upper molar on the left side of the patient's mouth had been denied.

Thereafter, the Petitioner sought to contest the denial of his claim, and the matter was duly forwarded to the Division of Administrative Hearings and the undersigned Hearing Officer for formal proceedings.

The cause came on for hearing as noticed. The Petitioner testified in his own behalf at the hearing and presented an affidavit of Clifton J. Baily, M.D., his treating physician of long standing, a physician who specializes in pulmonary medicine. Eric Weismann, the state benefits administrator, testified on behalf of the Respondent. Petitioner's exhibits 2-5 were admitted into evidence. The Department's exhibits A-D, as well as joint exhibit C, were also admitted into evidence.

Subsequent to the hearing, the parties timely submitted Proposed Recommended Orders. Those Proposed Recommended Orders have been considered in the preparation of this Recommended Order and specific rulings on the proposed findings of fact contained therein are included in the Appendix attached hereto and incorporated by reference herein.

FINDINGS OF FACT

1. The Petitioner is a retired state employee, who is covered for medical benefits under the State of Florida Employees' Group Health Self Insurance Plan. The Petitioner experienced an infection of the gum in the area adjacent to the upper left, first molar, also called a "localized mucogingival defect", which involves a localized, chronic infection of the soft tissue surrounding that tooth and the ligamentous attachment of the tooth. The condition was apparently caused initially by accumulation of food or infectious material beneath the gum line in that area. The Petitioner's general dentist, Dr. Doug Evans, determined that this condition should be treated by a referral of the Petitioner to a periodontal specialist, Dr. John S. Dozier. He was referred to Dr. Dozier sometime in April or May of 1993. He was seen by Dr. Dozier on June 1, 1993. Dr. Dozier diagnosed the condition as is described above.

   
   

2. Dr. Dozier determined that there were two courses of therapy available to resolve the infection problem. The first was extraction of the tooth. The second course of therapy involved complete debridement of the infected area, involving thorough cleaning and removal of any necrotic tissue or infectious material, followed by a gingival tissue graft. Since there was a good prognosis for retention of the adjacent tooth, it was determined by the Petitioner and Dr. Dozier to perform the latter procedure, involving the gingival graft, so as to replace, by transplantation, the gum tissue adjacent to the tooth, which would have the effect of filling the void or gap in the gum tissue at the infected area so as to restore the integrity of the gum and gum line and, therefore, prevent further infection in the area. The chronic infection in the area, if left untreated, could have resulted in a bacteremia condition. The gingival graft, which was performed, was thus surgery involving soft tissue and was successfully completed. The postoperative assessment, approximately nine months after the surgery, showed that it was 100 percent successful.

   
   

3. The Petitioner has a history of pulmonary disease or condition and a heart problem involving his heart valve. He has been under the care and treatment of Dr. Clifton J. Baily, a pulmonary specialist, for some years. Dr. Baily has, over the years, cautioned the Petitioner that he must be careful to seek prompt and proper treatment for any infection so as to avoid endangering his lungs or heart valve through the systemic effects of any infection. It was especially with this advice in mind that the Petitioner, upon learning that he had the infection in his mouth, sought and obtained the treatment described above.

4. This condition posed significant health risks to the Petitioner, not related to his dental care and treatment. Because of his medical history, the infectious condition placed the Petitioner at risk of infecting his heart valve, the area of previous surgery to his back, and the potential for development of a destructive respiratory infection, given the Petitioner's chronic pulmonary disability and heart valve problem history. It was, therefore, Dr. Baily's reasoned medical conclusion that the grafting of the tissue, by oral surgery performed by Dr. Dozier, was medically necessary to avoid spreading the infection, which would be detrimental to the Petitioner's chronic pulmonary disability and would run the risk of infecting his heart valve, as well.

   
   

5. It was thus established that the surgical procedure involved was medically necessary and was not truly a dental treatment or procedure. It involved the surrounding soft tissue adjacent to the tooth in question, which tissue was chronically infected. The tooth itself was not the source of the Petitioner's medical problem. Ultimate tooth loss might have been an incidental result of the deterioration and sloughing away of the infected soft tissue surrounding the tooth, but it was the infection of soft tissue, which had to be surgically repaired, that was the essential problem. The repair was shown to be medically necessary to avoid a deterioration in the Petitioner's pre-existing medical conditions described above.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Section 120.57(1), Florida Statutes.

   
   

7. The health insurance plan at issue, described in joint exhibit 6, provides at Sections G and H, as follows, concerning exclusions from coverage:

   
   

   G. Exclusions

   The following services, supplies or equipment are not covered services and supplies under the plan. The insured is solely responsible for the payment of charges for all such services, supplies or equipment excluded

   in this section.

   
   

   1. Services and supplies in connection with dental work, dental treatment, or dental examinations unless the result of a covered accident as provided in subsection H.2, except that in no case shall orthodontia be covered. However, non-physician services provided by a hospital, ambulatory surgical center, outpatient health care facility or skilled nursing facility in connection with dental work, treatment or examinations shall be covered in accordance with Section B of this benefit document.

      
      

      H. Limitations

      2. Any dental work, dental treatment or dental examinations medically necessary for the repair or alleviation of damage to an insured is covered by the plan only if such work, treatment or examination is (1) the result of an accident

      sustained while the insured is covered under this plan, and (2) rendered within 120 days of the accident, unless a written explanation from the dentist or physician is submitted to and received by the servicing agent within such

      120 days stating the extenuating circumstances requiring treatment to be performed over a longer period.

      
      

   2. The preponderant evidence of record establishes that the treatment provided to the Petitioner was for a chronic infection condition in the soft tissue of a part of the body which happened to be the Petitioner's mouth. The procedure performed involved debridement of the infected area and surgery to graft tissue onto the affected area to restore the tissue to its healthy configuration and condition. This treatment was shown by the Petitioner's testimony, as corroborated by the medical testimony in the form of Dr. Baily's affidavit (admitted without objection), which showed that the procedure performed was medically necessary. It was necessary not merely for treatment of a dental problem, but rather for treatment of a chronic infection which posed a significant risk of greater injury to health in the form of the substantial risk it posed for causing a deterioration in the Petitioner's chronic pulmonary disability and the peculiar susceptibility of his heart valve to systemic infection. This evidence is corroborated by the report of Dr. Dozier, which describes the risk of bacteremia (systemic infection or infection of the blood), if, implicitly, the chronic infection of the soft tissue of the mouth was not treated at the time and in the manner in which it was, with debridement of the infected area and surgery. The Petitioner thus established that the treatment of the infected area, with necessary surgery, was not merely for treatment of a dental problem but was medically necessary for prevention of a more-grave medical condition, as described in the above Findings of Fact.

      
      

   3. The Petitioner, as the party asserting the affirmative of the issue before this tribunal, has the burden to establish by preponderant evidence that he is entitled to the reimbursement requested. See, Department of Transportation v. J.W.C. Co., Inc., 396 So.2d 778 (Fla. 1st DCA 1991). The Petitioner has sustained that burden of proof and established his entitlement to reimbursement under the insurance plan in question.

RECOMMENDATION

Based on the foregoing Findings of Fact, Conclusions of Law, the evidence of record, the candor and demeanor of the witnesses, and the pleadings and arguments of the parties, it is

RECOMMENDED that a Final Order be entered by the Respondent, Department of Management Services, Division of State Employees' Insurance, finding the Petitioner entitled to reimbursement for the charges shown to be medically necessary for the above-described procedure and treatment.

DONE AND ENTERED this 10th day of August, 1994, in Tallahassee, Florida.

P. MICHAEL RUFF Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1994.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-6939

Petitioner's Proposed Findings of Fact

1-18. Accepted, but subordinate to the Hearing Officer's findings of fact on this subject matter, and rejected to the extent that they may differ from the Hearing Officer's findings of fact.

Respondent's Proposed Findings of Fact 1-4. Accepted.

1. Rejected, as subordinate to the Hearing Officer's findings of fact

   on this subject matter. The preponderant evidence of record reflects that

   $507.00 was the total fee paid for the services necessitated by the treatment of the infectious condition described in the above Findings of Fact and found to be subject to reimbursement.

2. Rejected, as subordinate to the Hearing Officer's findings of fact on this subject matter, and as not entirely in accord with the preponderant weight of the evidence.

3. Accepted only in the sense that they describe the Respondent's position in this case.

COPIES FURNISHED:

Brant Hargrove, Esq.

1343 East Tennessee Street Tallahassee, FL 32308

Augustus D. Aikens, Jr., Esq. Benefit Programs and Legal Services

Division of State Employees' Insurance 2002 Old St. Augustine Road, B-12 Tallahassee, FL 32301-4876

William H. Lindner, Secretary Department of Management Services Knight Bldg., Ste. 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

Paul A. Rowell, Esq.

General Counsel

Department of Management Services Knight Bldg., Ste. 307

Koger Executive Center 2737 Centerview Drive

Tallahassee, FL 32399-0950

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit to the agency written exceptions to this Recommended Order. All agencies allow each party at least ten days in which to submit written exceptions. Some agencies allow a larger period within which to submit written exceptions. You should contact the agency that will issue the Final Order in this case concerning agency rules on the deadline for filing exceptions to this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the Final Order in this case.

Docket for Case No: 93-006939

Orders for Case No: 93-006939