STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

RICHARD D. CONIBEAR, )

)

Petitioner, )

)

vs. ) CASE NO. 83-709

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, K. N. Ayers, held a public hearing in the above- styled case on July 14, 1983, at Bartow, Florida.

APPEARANCES

For Petitioner: Richard D. Conibear, pro se

605 McDonald Street

Lakeland, Florida 33803

For Respondent: Daniel C. Brown, Esquire

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

By letter dated March 1, 1983, Richard D. Conibear, Petitioner, seeks an administrative hearing to contest the denial of coverage under the Florida Employees Group Health Self-Insurance Plan to release scar contracture of the right leg with a skin graft. This case was initially scheduled to be heard June 23, 1983, but was continued due to emergency medical problems of Respondent's attorney. Following that continuance, when it appeared to the Hearing Officer that there were few, if any, disputed issues of fact, the Hearing Officer suggested the parties confer to stipulate to as many facts as possible. At the commencement of this hearing, the parties had not met to discuss actual issues and the hearing was recessed to allow such a conference. Shortly thereafter, the hearing was reconvened and the parties stipulated to the following facts and three exhibits were admitted into evidence.

FINDINGS OF FACT

1. Petitioner underwent surgery in August of 1971 for the purpose of reconstructive repair to his leg as a result of burns. He had the first surgery in the early part of August of 1971. That surgery was unsuccessful since the graft did not take. Approximately two weeks thereafter, also during August of 1971, he had further surgery. That graft was also unsuccessful.

   
   

2. After eight to nine months, the second graft developed keloid scarring in the area on the back of Petitioner's knee, which necessitated a third

   operation. The third operation was performed some nine months after the second operation and removed keloid scarring from the back of the knee area and added some additional tissue to allow for contracture during the aging process.

   
   

3. In 1972, there was a fourth surgical procedure performed on Petitioner's leg, this time to remove keloid scarring from the front of the knee area. That was the last surgery performed on Petitioner with respect to this injury. Petitioner had no apparent symptoms of additional scarring until 1982.

   
   

4. Petitioner joined the plan in December of 1980.

   
   

5. From this stipulation of facts and the correspondence forwarded with the request for hearing, it is evident this case should not have been referred to the Division of Administrative Hearings but should have been handled as a Declaratory Statement pursuant to Rule 18-4.05, Florida Administrative Code.

   
   

   CONCLUSIONS OF LAW

   
   

6. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings.

   
   

7. Benefits available to Employees Group Health Insurance Plan are contained in Exhibit 1.

   
   

8. Petitioner's main contention is that the surgery he needs should be covered under Section VIII, LIMITATIONS, paragraph C, which provides:

   
   

   For any accident or illness for which

   an insured received diagnostic treatment or incurred expenses within one hundred eighty (180) consecutive days prior to the effective date of coverage, a maximum of two thousand five hundred dollars ($2,500.00) will be allowed for expenses incurred subsequent to the effective date of coverage related to such accident or

   illness; however, after one hundred eighty

   (180) consecutive days without expenses or at the end of twelve (12) months of

   coverage all benefits are available. This limitation shall not apply if the employee or eligible dependent was insured under any other agency payroll deduction plan

   on such plan's termination date and did not enroll for coverage in this Plan effective the first day after termination date.

   
   

9. Respondent, on the other hand, contends the coverage is precluded by Section VIII, paragraph G, which provides:

   
   

   Surgery to improve function or appear ance to any area of the body which has been altered by disease, trauma, or con genital deformity is a covered expense; provided however, such alteration result ing from disease or trauma occurred to

   the person while insured under the State Employees Group Health Insurance Plan.

   
   

10. Paragraph C above-quoted covers accidents or injuries for which diagnostic treatment was received or expenses incurred by insured within 180 days prior to effective date of coverage. Here, the injury occurred some seven or eight years prior to the effective date of insured's coverage and, therefore, paragraph C is not applicable.

    
    

11. Paragraph G is the more specific provision relating to this case. Petitioner needs surgery to improve the function of his right knee which was altered by scarring following burns some 12 years ago. The trauma and the body alteration which followed occurred long before Petitioner became covered under the plan. This alteration (scar tissue) was quiescent for several years after Petitioner became covered under the plan and has now become a problem. Thus, the trauma and the body alteration from this trauma occurred to Petitioner while he was not insured under the plan. Accordingly, Section VIII, paragraph G, precludes payment by the plan when, and if, Petitioner has the surgery that is needed.

    
    

12. From the foregoing it is concluded that this case should not have been, accepted by the Division of Administrative Hearings since no disputed facts exist and Petitioner is seeking an advisory opinion, which is more appropriately the subject of a Declaratory Statement. It is therefore

RECOMMENDED that the petition of Richard D. Conibear be denied and Respondent enter a Declaratory Statement as a final order in this case.

DONE and ENTERED this 10th day of August, 1983, at Tallahassee, Florida.

K. N. AYERS Hearing Officer

Division of Administrative Hearings 2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1983.

COPIES FURNISHED:

Daniel C. Brown, Esquire Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Richard D. Conibear 605 McDonald Street

Lakeland, Florida 33803

Novin G. Smith, Secretary Department of Administration Carlton Building Tallahassee, Florida 32301

Docket for Case No: 83-000709

Orders for Case No: 83-000709