STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOHN D. ELDER, )
)
Petitioner, )
)
vs. ) CASE NO. 95-0373
) ST. LUCIE COUNTY SCHOOL BOARD, )
)
Respondent. )
)
RECOMMENDED ORDER
This case was heard by Eleanor M. Hunter, the Hearing Officer for the Division of Administrative Hearings, on June 22, 1995, in Fort Pierce, Florida.
APPEARANCES
For Petitioner: John T. Kennedy, Attorney
The Injury Law Offices of John T. Kennedy
309 East Osceola Street, Suite 306 Stuart, Florida 34994
For Respondent: C. Deborah Bain, Attorney
Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A.
1645 Palm Beach Lakes Boulevard, Suite 700 Post Office Box 2508
West Palm Beach, Florida 33401 STATEMENT OF THE ISSUES
Whether the Petitioner is entitled to reimbursement under the Respondent's medical benefit plan for certain medical expenses or whether those medical expenses are excluded from coverage because of a pre-existing medical condition.
Whether the Petitioner is entitled to reasonable attorney's fees and expenses.
PRELIMINARY STATEMENT
John D. Elder, the Petitioner, an employee at Port St. Lucie High School, seeks reimbursement for medical expenses related to and including those for cardiac catheterization and heart bypass surgery, performed in January 1994.
His claims have been denied because his heart condition was determined to be a pre-existing condition. The parties stipulated that the effective date of medical coverage under the St. Lucie County School Board's Medical Benefit Plans was January 1, 1994.
At the final hearing, the Petitioner presented the testimony of Richard Dube, M.D., Florinda M. Elder, and John P. Elder. Petitioner's exhibits 1-6 were received in evidence, without objection.
The Respondent presented the testimony of Kay Trentor, R.N., and by deposition, Robert N. Blews, M.D., and Ronald Jenkins, M.D. The depositions are included in Respondent's exhibits 1-5, 7, 8, 10 and 11 were received in evidence, but exhibits 6 and 9 were not.
Proposed recommended orders were due on July 7, 1995. Respondent's proposed recommended order was filed on July 6, 1995. Petitioner's proposed recommended order dated July 6, was received on July 10, 1995. The parties' proposed findings of fact are addressed in the appendix to this recommended order.
FINDINGS OF FACT
John D. Elder is a site worker at Port St. Lucie High School, having first been employed by the St. Lucie County School Board as a temporary employee in the summer of 1993.
When first employed, Mr. Elder rejected the option to enroll in the employer's insurance plan. In September 1993, Mr. Elder was given an employer's insurance form allowing ninety days for enrollment. On November 12, 1993, he completed the form and became eligible for certain benefits on January 1, 1994.
The St. Lucie County School Board Medical Benefit Plans, in which Mr. Elder enrolled, excludes coverge for pre-existing conditions until the end of 12 months of continuous coverage. The plans include the following definitions:
A pre-existing condition is an injury, sickness or pregnancy or any condition
related to that injury, sickness or pregnancy, where a diagnosis, treatment, medical advice or expense was incurred within twelve (12) months prior to the effective date of this coverage. Pre-existing condition will also include any injury, sickness or pregnancy or
related condition that manifested itself twelve
(12) months prior to the effective date of this coverage. Pre-existing condition will also include the existence of symptoms which would cause an ordinarily prudent person to seek diagnosis, care or treatment within twelve (12) months prior to the effective date of this coverage. (Emphasis Added.)
From 1985 to 1988, Mr. Elder was treated by Dr. Urban who, on March 24, 1988, performed an electrocardiogram ("EKG"), which was normal. Dr. Urban treated Mr. Elder for respiratory illnesses, such as bronchitis and pleurisy, for back and shoulder muscle spasms, bursitis/tendonitis, and for high blood pressure.
On September 21, 1988, Mr. Elder first saw Dr. Richard Dube. On that day, his heart rate was 62, as compared to the normal range of 60 to 100. In October 1988, Dr. Dube treated Mr. Elder for an inflammation of the muscle
behind his shoulder. In December 1988 and January 1989, he treated Mr. Elder for high blood pressure and headaches.
In July 1991, Mr. Elder called an ambulance and was taken to the hospital complaining of pain in his neck, across his shoulders, and down his arms. Among other tests, an EKG was performed. The diagnosis was tendonitis in his right shoulder. Later that same year, Mr. Elder complained of heart burn. Dr. Dube treated him for epigastric distress and high blood pressure. Blood test analyses of his cholesterol and high, low and very low density lipid levels indicated a cardiac risk factor of 10.3 for Mr. Elder, which is more than twice the standard male risk factor of 5.0. Dr. Dube ordered blood tests again in January 1993, at which time Mr. Elder's cholesterol and high density lipid levels were still high, but had decreased, reducing the cardiac risk factor to
8.0. Dr. Dube also referred Mr. Elder for an ultrasound of the gallbladder, which was diagnosed on January 29, 1993, as having calcification, which could represent a gallstone, and probably having a small polyp. At the same time he treated Mr. Elder for carpal tunnel syndrome and temporomandibular joint syndrome ("TMJ"). Most recently, on July 27, 1993, the same tests were repeated. With cholesterol in the normal range, the cardiac risk factor was decreased to 6.5.
In the fall of 1993, Mr. Elder's complaints were diagnosed as episgastric reflux. To reassure Mr. Elder, Dr. Dube ordered another EKG, which was performed on November 23, 1993, and was normal.
On January 3, 1994, Mr. Elder's complaints of ongoing pain caused Dr. Dube, who suspected he had a hiatal hernia, to refer him to Dr. Dan G. Jacobson for an upper endoscopy. Dr. Jacobson recorded a history of episgastric/chest pain, hypertension, ulcers and arthritis. Dr. Jacobson also noted a family history described as "remarkable for heart problems, heart attack." The admitting diagnosis was "history of episgastric pain refractory to medical therapy." Dr. Jacobson performed the endoscopy and diagnosed mild stomach gastritis. Based on a two week history of epigastric and chest pain, and his conclusion that the pain was too severe to result from the endoscopy findings, Dr. Jacobson consulted a cardiologist.
Dr. Robert N. Blews, a cardiologist, saw Mr. Elder in the hospital.
The history taken by Dr. Blews noted (1) that Mr. Elder's father died of a heart attack at age 68, and that his mother had coronary bypass surgery at age 48 and died at age 59, (2) that the onset of "chest tightness" was approximately one year prior, and (3) that he has a history of cervical spine disease. Dr.
Blews' notes also reflected a change in the pattern of the chest pains in the last one to two months, and additional changes in the last two weeks. The longest episodes of pain were lasting from 20 to 30 minutes, with associated sweating and shortness of breath. Mr. Elder also told Dr. Blews that the pain could be with exercise, at rest, could awaken him, and occurred while he was just walking to his car. The report describes Mr. Elder as having a history of smoking.
The EKG which Dr. Blews ordered on January 8, 1994 showed a major blockage on the left side of the heart, and is significantly different from all of the prior EKGs, including that taken on November 23, 1993. Dr. Blews concluded that Mr. Elder was having angina, or a decrease in the blood supply to his heart two weeks, two months, and a year before January 1994.
Mr. Elder's wife, Florinda Elder, has been aware of his complaints of stomach problems for 10 years, but had no knowledge of his heart problems until
January 1994. She was not aware of his having ever smoked or complained of shortness of breath. Although she was at the hospital, Mrs. Elder was not in the room when Dr. Blews took her husband's medical history.
Mr. Elder's shoulder and muscle aches, and cervical spine pain are the result of a serious car accident in 1969. The pains are aggravated by cold weather. Mr. Elder claims to have been under the effects of anesthesia at the time Dr. Blews took his medical history, and denies having had a year of chest tightness, shortness of breath, or difficulty walking to his car. He has not smoked for 20-25 years, which is not inconsistent with Dr. Blews' report of a "history of smoking." Mr. Elder's attempt to undermine Dr. Blews history is specifically rejected.
The McCreary Corporation is the administrator of the St. Lucie County School Board's self-insurance plan, which contracts with a consultant, Independent Health Watch. Kay Trentor, R.N., reviewed the claims submitted by Mr. Elder, and concluded that his coronary artery disease was a pre-existing condition. In part, Ms. Trentor was relying on Dr. Blews history of a year of "chest tightness."
Mr. Elder's records were also sent for peer review, to two other consultant organizations, Professional Peer Review, Inc. and Medical Review Institute of America, Inc. They, in turn, sent the records to Board certified cardiologists, with cardiovascular disease subspecialties. The first report concludes that Mr. Elder "should have known that he had coronary disease because he had multiple risk factors for heart disease," and that "if he was reasonably prudent he would have had this taken care of during the time he was having chest pain walking to the car."
The second peer review report also notes a year of chest tightness, with symptoms worsened "over the two months preceding the admission, but . . . not recognized as cardiac until the hospitalization on January 7, 1994." The report concludes that coronary artery disease was not diagnosed until after the effective date.
The second report was prepared by Ronald Jenkins, M.D., who believes that Drs. Dube and Jacobson, "seemed to be focusing on gastrointestinal diagnoses . . . and had kind of missed the boat, so to speak . . .," but that "an ordinarily prudent person with John Elder's symptoms which he reported prior to January 1, 1994, [would] have sought medical treatment for those symptoms."
Coronary artery disease takes years to develop, but is erratic in manifesting itself, with some people having no symptoms to severe symptoms over a matter of hours. Dr. Dube described it as "silent" coronary disease. Dr. Blews estimates that a heart attack is the first symptom in 40 percent of patients.
There is no dispute that Mr. Elder has had other medical conditions, including TMJ, arthritis, and gastroenterological problems. Dr. Jenkins believes the most important manifestation of coronary artery disease was upper precordial chest tightness going to the left upper extremity as well as to the throat. When the history indicates that the tightness occurs with exercise, according to Dr. Jenkins that gives 90 percent confidence that it is anginal chest pain. That confidence level increases to 95 percent when he notes that Mr. Elder told Dr. Blews that chest discomfort occurs when he walks to his car. Without that history, however, Dr. Jenkins would not be able to conclude that
the chest discomfort is due to heart disease or that the cardiac condition manifested itself prior to January 1, 1994.
Dr. Jenkins described chest heaviness, aggravated by being in cold weather, as a symptom of coronary disease. The same pain without multiple risk factors, occuring irregularly, is a reason for "looking into other alternative diagnoses." Dr. Jenkins also acknowledges that episgastric reflux can cause chest discomfort and throat pain, and that cervical spine degenerative disc disease can cause a radiation of symptoms into the upper extremities, as it did when Mr. Elder called an ambulance in 1991.
Dr. Blews did not have trouble getting a complete, detailed history from Mr. Elder. He typically has to elicit a more specific description from patients complaining of chest discomfort. He gives choices such as pain, burn, stab, jab, tight, squeeze or pressure, from which Mr. Elder chose "tight." Dr. Blews also found that Mr. Elder had chest wall pain in several spots or fibrosistitis, which is not a symptom of heart disease.
Chest tightness could also be attributable to asthma, according to Dr. Blews, but with radiating pain into the left arm, jaw, and throat, shortness of breath, and sweating, he was certain Mr. Elder had heart disease.
All of the doctors agree that Mr. Elder's heart disease existed before January 1, 1994, and that he had no diagnosis, treatment, medical advise or expense related to heart disease in the 12 months prior to January 7, 1994. There is no evidence that he was ever evasive or uncooperative with doctors. On the contrary, Mr. Elder was consistently described in doctor's notes and hospital records as anxious or concerned about his health.
Coronary artery disease had not manifested itself to Mr. Elder or his doctors prior to Dr. Jacobson's decision to consult with Dr. Blews. "Manifest" is defined in Respondent's exhibit 9, a page from the International Classification of Diseases, 9th Revision, 1995, or ICD-9, as "characteristic signs or symptoms of an illness." The doctors who testified, in person or by deposition, described every sign or symptom experienced prior to Dr. Blews' consultation, as also being a sign or symptom of Mr. Elder's other medical conditions. Mr. Elder's symptoms might have been diagnosed as also indicating that he had heart disease, if he had been referred to a cardiologist sooner.
There is no factual basis to conclude that Mr. Elder, or any ordinarily prudent person, should have sought diagnosis, care, or treatment for heart disease when, in fact, his doctor reassured him that his EKG was normal.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this proceeding, pursuant to subsection 120.57(1), Florida Statutes.
In Ganson v. State, Department of Administration, 554 So.2d 516 (Fla. 1st DCA 1989), the insurance plan excluded for 365 day, pre-existing conditions for any accident or illness for which the insured received diagnostic treatment or received services. The Hearing Officer concluded that situational depression, for which the insured had been treated, and manic depression, for which she claimed benefits, were separate and distinct conditions, despite having certain common symptoms (i.e., periods of depression). The doctors, in that case, testified that manic depression or bipolar affective disorder, is not
a progressive form of situational depression, has a different cause, and did not manifest itself until two months after the effective date of insurance coverage. One psychiatrist testified that bipolar affective disorder can develop over a period of weeks or months, or overnight. The Department of Administration rejected the Hearing Officer's finding, concluding that depression of any kind and any other nervous disorder were excluded as pre-existing conditions, because the employee was already being treated for a form of depression. Bipolar affected disorder, according to the final order, typically was not diagnosed by a psychologist, but only by a psychiatrist to whom the insured was referred after the psychologist actually witnessed a manic episode in his office. As in the instant case, it is possible that an earlier referral may have resulted in an earlier diagnosis. The District Court, in an opinion reversing the Department's final order, explained that the exclusion does not depend on whether the insured was, prior to enrollment, in fact suffering from a condition which was not diagnosed, but whether the insured was diagnosed or treated for the condition. 554 So.2d 516 at page 518, footnote 4.
The evidence in this case establishes that the Petitioner was never diagnosed, treated, advised or billed for a heart condition prior to January 1994, that the condition did not manifest itself until that time, and that an ordinarily prudent person would have relied on the diagnoses and reassurances of his doctor. Petitioner's treatment for coronary artery disease was not a treatment for a pre-existing condition within the meaning of pre-existing condition exclusion in the St. Lucie County School Board's Medical Benefit Plans.
The parties stipulated at the final hearing that the amount of the expenses related to the diagnosis and treatment of Mr. Elder's coronary artery disease is not in dispute, as represented by Petitioner's exhibit 6.
There is no basis in law or factual evidence in the record to support an award of attorney's fees and costs.
Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Respondent enter a Final Order approving Petitioner's
claim for payment of medical expenses in the amount stipulated by the parties.
DONE AND ENTERED this 12th day of July, 1995, in Tallahassee, Leon County, Florida.
ELEANOR M. HUNTER
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 12th day of July, 1995.
APPENDIX TO RECOMMENDED ORDER, CASE NO. 95-0373
To comply with the requirements of Section 120.59(2), Florida Statutes (1993), the following rulings are made on the parties' proposed findings of fact:
Petitioner's Proposed Findings of Fact.
Accepted in preliminary statement and Findings of Fact 2.
Accepted in Findings of Fact 3.
Subordinate to Findings of Fact 3.
Accepted in Findings of Fact 22.
Accepted in Findings of Fact 5-8.
Accepted in Findings of Fact 5-8 and 12.
Accepted in Findings of Fact 7 and 10.
Accepted in Conclusions of Law.
Accepted in or subordinate to Findings of Fact 6.
Respondent's Proposed Findings of Fact.
1. Accepted in Findings of Fact 1 and 2. 2-3. Accepted in Findings of Fact 2.
4-5. Accepted in Findings of Fact 3.
Accepted as corrected in Findings of Fact 23.
Accepted in Findings of Fact 9.
Accepted in Findings of Fact 8 and 9.
9-12. Accepted in or subordinate to Findings of Fact 9. 13-15. Accepted in Findings of Fact 20.
Accepted in Findings of Fact 22.
Accepted in or subordinate to Findings of Fact 20.
Accepted in or subordinate to Findings of Fact 15-23.
Accepted in preliminary statement and Findings of Fact 13.
Accepted in or subordinate to Findings of Fact 14-16.
Accepted in Findings of Fact 14 and 15.
Accepted in Findings of Fact 16.
Accepted in Findings of Fact 8.
Accepted in Findings of Fact 9 and 20.
Accepted in Findings of Fact 23.
Accepted in Findings of Fact 17.
Accepted in Findings of Fact 23.
Accepted, but Dr. Dube's testimony was found credible and corroborated by his notes.
COPIES FURNISHED:
John T. Kennedy, Esquire
The Injury Law Offices of John T. Kennedy
309 East Osceola Street Suite 306
Stuart, Florida 34994
C. Deborah Bain, Esquire
Wicker, Smith, Tutan, O'Hara, McCoy, Graham & Lane, P.A.
1645 Palm Beach Lakes Boulevard Suite 700
Post Office Box 2508
West Palm Beach, Florida 33401
Frank T. Brogan Commissioner of Education The Capitol
Tallahassee, Florida 32399-0400
Dr. David Mosme, Superintendent St. Lucie County School Board 2909 Delaware Avenue
Ft. Pierce, Florida 34947-7299
NOTICE OF RIGHT TO SUBMIT EXCEPTIONS
All parties have the right to submit 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.
| Issue Date | Proceedings |
|---|---|
| Oct. 27, 1995 | Index & Statement of Service sent out. |
| Oct. 26, 1995 | Exhibits from Wicker, Smith Tutan, O'Hara (returned when recommended order was done) filed. |
| Aug. 28, 1995 | AGENCY APPEAL, ONCE THE RETENTION SCHEDULE OF -KEEP ONE YEAR AFTER CLOSURE- IS MET, CASE FILE IS RETURNED TO AGENCY GENERAL COUNSEL. -ac |
| Aug. 07, 1995 | to EMH from J. Kennedy (RE: enclosing case law relevant to case no. 95-373) filed. |
| Aug. 03, 1995 | (Respondent) Response to Plaintiff's Verified Motion to Enforce Charging Lien and Determine Priority of Lien filed. |
| Aug. 02, 1995 | (Respondent) Response to Motion for Attorney's Fees and Interest filed. |
| Jul. 31, 1995 | Final Order filed. |
| Jul. 31, 1995 | Final Order filed. |
| Jul. 24, 1995 | (John T. Kennedy) Notice of Charging Lien w/cover filed. |
| Jul. 12, 1995 | Recommended Order sent out. CASE CLOSED. Hearing held 06/22/95. |
| Jul. 10, 1995 | Order (for HO signature); Cover filed. |
| Jul. 07, 1995 | (Respondent) Recommended Order (for HO signature); Cover filed. |
| Jun. 26, 1995 | to HO from C. Deborah Bain Re: Respondent`s original exhibits numbered 1 through 3 filed. |
| Jun. 22, 1995 | CASE STATUS: Hearing Held. |
| Jun. 21, 1995 | (Joint) Prehearing Stipulation filed. |
| Jun. 19, 1995 | (Respondent) Fact Witness List; Exhibit List; Pre-Hearing Stipulation; Petitioners Witness List; w/cover filed. |
| Jun. 09, 1995 | (Respondent) Response to Request to Produce filed. |
| May 22, 1995 | (Respondent) Notice of Compliance filed. |
| May 10, 1995 | Subpoena Duces Tecum (Mail-In); Subpoena Duces Tecum filed. |
| May 08, 1995 | (Respondent) Objections to Request to Produce filed. |
| May 08, 1995 | Subpoena Duces Tecum (Mail-In) filed. |
| May 04, 1995 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 6/22/95; 9:00am; Ft. Pierce) |
| May 02, 1995 | (Petitioner) Request for Copies w/cover filed. |
| May 02, 1995 | (Petitioner) Request for Copies w/cover filed. |
| May 01, 1995 | (Respondent) Notice of Taking Deposition Duces Tecum*; Subpoena DucesTecum for Deposition filed. |
| Apr. 27, 1995 | (Respondent) Notice of Taking Telephone Deposition filed. |
| Apr. 27, 1995 | Subpoena Duces Tecum; Affidavit of Service w/cover filed. |
| Apr. 27, 1995 | Motion for continuance(Respondent) filed. |
| Apr. 26, 1995 | (Respondent) Notice of Production from Non-Party; Subpoena Duces Tecum filed. |
| Apr. 24, 1995 | (Respondent) Notice of Compliance filed. |
| Apr. 20, 1995 | (Petitioner) Request for Copies; Request to Produce w/cover filed. |
| Apr. 19, 1995 | to John Kennedy from MMP sent out. (RE: response to Mr. Kennedy`s of April 13, 1995, reference seeking recovery of attorneys fees) |
| Apr. 19, 1995 | (Respondent) Amended Notice of Taking Deposition (Defense counsel to attend via telephone) (Change of location of deposition only) filed. |
| Apr. 17, 1995 | to HO from John T. Kennedy Re: Recovery of Attorney`s fees and expenses filed. |
| Apr. 17, 1995 | (Respondent) Notice of Production from Non-Party; (2) Subpoena Duces Tecum (Mail-In) filed. |
| Apr. 14, 1995 | (Respondent) Notice of Taking Deposition (Defense counsel to attend via telephone) filed. |
| Apr. 13, 1995 | (Petitioner) Notice of Serving Petitioner`s Answers to Interrogatories w/cover ; (3) Subpoena Duces Tecum (Mail-In); (3) Duces Tecum;Subpoena Duces Tecum filed. |
| Apr. 10, 1995 | (John Kennedy) Notice of Taking Deposition w/cover filed. |
| Mar. 30, 1995 | (Respondent) Supplemental Response to Request to Produce filed. |
| Mar. 27, 1995 | (12) Subpoena Duces Tecum (mail-in) from D. Bain filed. |
| Mar. 24, 1995 | (Respondent) Response to Request to Produce filed. |
| Mar. 20, 1995 | Order Granting Continuance and Rescheduling Hearing sent out. (hearing rescheduled for 5/12/95; 9:00am; Ft. Pierce) |
| Mar. 13, 1995 | (Petitioner) Motion to Continue; (Petitioner) Request to Produce filed. |
| Mar. 13, 1995 | (Respondent) Notice of Production from Non-Party; (16) Subpoena DucesTecum (Mail-In); Subpoena Duces Tecum filed. |
| Mar. 08, 1995 | (Respondent) Amended Notice of Taking Deposition filed. |
| Mar. 08, 1995 | (Respondent) Notice of Serving Interrogatories; General Personal Injury Negligence-Interrogatories to the Plaintiff; Notice of Taking Deposition filed. |
| Mar. 06, 1995 | (Respondent) Request to Produce; Addendum to Response to Initial Order filed. |
| Feb. 24, 1995 | Notice of Hearing sent out. (hearing set for 05/03/95;9:00AM;Fort Pierce) |
| Feb. 24, 1995 | Order Requiring Prehearing Stipulation sent out. (Prehearing stipulations to be filed no later than 5 days prior to hearing) |
| Feb. 16, 1995 | Joint Response to Initial Order w/cover filed. |
| Feb. 03, 1995 | Initial Order issued. |
| Jan. 30, 1995 | Request for Hearing, letter form; Letter to S. Keoleian from J. Kennedy (And enclosed Notices of Medical Expenses) filed. |
| Jan. 23, 1995 | Agency referral letter; St. Lucie County School Board Medical BenefitPlans filed. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 27, 1995 | Agency Final Order | |
| Jul. 12, 1995 | Recommended Order | Heart disease not excluded from ins. plan coverage as pre-existing when not diagnosed, treated nor manifest prior to effective date. |
