STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANNE ZARZECKI, )

)

Petitioner, )

)

vs. ) CASE NO. 83-2411

) DEPARTMENT OF ADMINISTRATION, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, James E. Bradwell, held a public hearing in this case on January 5, 1984, in Miami, Florida. The parties were afforded leave through February 15, 1984, to submit proposed memoranda supportive of their respective positions. Respondent's counsel has submitted a proposed Recommended Order which was considered by me in preparation of this Recommended Order. 1/

APPEARANCES

For Petitioner: Anne Zarzecki, pro se

3709 Monserrate

Coral Gables, Florida 33134

For Respondent: Eric J. Taylor, Esquire

Assistant Attorney General Department of Legal Affairs The Capitol-1502 Tallahassee, Florida 32301

ISSUE

The issue presented for decision herein is whether or not the Petitioner is entitled to be reimbursed for certain special equipment and supplies based on her claim to be reimbursed under the State of Florida Employees Group Health Self-Insurance Plan (herein the Plan)

FINDINGS OF FACT

1. Based upon my observation of the witnesses and their demeanor while testifying, documentary evidence received, posthearing memoranda, and the entire record compiled herein, I hereby make the following relevant findings of fact.

   
   

2. During times material herein, the Petitioner was employed by the State of Florida, Department of Environmental Regulation, in Tallahassee, Florida and was eligible for, and was a member entitled to benefits under the State of Florida Employees Group Health Self-Insurance Plan. On May 12, 1982, the Petitioner was involved in an automobile accident which resulted in injuries leaving her an incomplete paraplegic.

3. As a result of this accident, the Petitioner incurred certain expenses which prompted her (Petitioner) to submit a claim for reimbursement of certain expenses including the following items:

   
   

   1. Gresham hand controls purchased on approximately September 17, 1982 for $390.

      
      

   2. Walton exercise bicycle purchased on September 30, 1982 for $195.

      
      

   3. Building materials to construct an entrance ramp into her home for a sum total of $211.50.

      
      

   4. A reciprocal walker purchased on approximately September 30, 1982

      for $50.

      
      

   5. Cuff weights purchased also on approximately September 30, 1982

      for approximately $24.

      
      

   6. Surfak, a drug which the Petitioner purchases monthly for the sum of approximately $10.59 monthly.

      
      

      The total cost of the items claimed was approximately $881.09.

      
      

4. The Petitioner submitted her claim to the Plan's Administrator, Blue Cross, on October 18, 1982, seeking reimbursement of the $881.09 (minus the 20 percent deductible) for the cost of the above items along with receipts and a doctor's letter stating the need for such items. The request was assigned claim number 22931382321 by Blue Cross and was processed by staff.

   
   

5. By letter dated June 6, 1983, Blue Cross notified Petitioner of the denial of her claim for the hand controls, exercise bike, building materials and the drug Surfak. Blue Cross honored Petitioner's claim for the reciprocal walker and the cuff weights.

   
   

6. The Gresham hand control is a device attached to an automobile to help a paraplegic drive an automobile by permitting the operator to control acceleration and braking with their hands instead of their feet.

   
   

7. The building materials claimed by Petitioner were used to construct a ramp to allow access to and from the Petitioner's residence.

   
   

8. The exercise bike is used by the Petitioner to aid in her physical therapy to strengthen her leg muscles.

   
   

9. Surfak is a drug used in assisting a person with limited mobility to control their bowel movements. Petitioner has a continual use for Surfak based on her condition. Surfak is a non-prescription drug.

   
   

   CONCLUSIONS OF LAW

   
   

10. The Division of Administrative Hearings has jurisdiction over the subject matter and the parties to this action. Chapter 120.57(1), Florida Statutes.

    
    

11. Petitioner was an employee of the State of Florida on the day of her accident on May 12, 1982. Petitioner was therefore allowed to be reimbursed for

    those expenses under the health plan that are permitted by the Plan's Benefit Document.

    
    

12. Section 110.123, Florida Statutes, created for state employees the Group Health Plan. Pursuant to paragraph 4 of the Benefit Document, the Health Plan will pay 80 percent of the following medically necessary expenses:

    
    

    1. drugs which require a written prescription by a doctor and dispensed by a pharmacist.

       
       

    2. the purchase of other medical supplies, including durable medical equipment, for therapeutic treatment generally recognized as being required for treatment of the insured's disability.

       
       

    3. "Medically necessary" is defined in paragraph 1R of the Benefit Document which points out a service that will identify or treat the illness or injury of the insured. The service must treat and be required for other than the convenience of the insured.

       
       

    4. Insufficient evidence was offered by the Petitioner to establish that the Gresham hand controls or the building materials used to construct the ramp to her residence were items covered by the Plan and thus reimbursable by the Respondent.

       
       

    5. Insufficient evidence was offered by the Petitioner to establish that the drug Surfak, although used by the Petitioner in assisting in the control of her bowel movements, was a covered drug inasmuch as non-prescription drugs are specifically excluded by the Plan's Benefit Document.

       
       

    6. Competent and substantial evidence was offered to establish that the Walton exercise bike purchased by the Petitioner and utilized by her to strengthen her leg muscles in physical therapy was a covered expense inasmuch as it treated the Petitioner's injury. It was thus a covered expense. The fact that an exercise bike can be utilized by others does not, in these circumstances, render it a non-covered expense based on the Petitioner's unrefuted testimony that she, in fact, utilized the exercise bike in physical therapy to strengthen her leg muscles.

RECOMMENDATION

Based on the foregoing findings of fact and conclusions of law, it is hereby recommended that the Respondent reimburse the Petitioner for the expenses incurred by her, less the appropriate deductible, for the purchase of the Walton exercise bike.

In all other respects, the Petitioner's claim for reimbursement of expenses incurred by her and as submitted by her claim to the Respondent on October 18, 1982, be DENIED.

RECOMMENDED this 8th day of March, 1984, in Tallahassee, Florida.

JAMES E. BRADWELL, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 1984.

ENDNOTE

1/ To the extent that the Respondent's proposed findings, etc. are not incorporated in this Recommended Order, said proposed findings were rejected as being either irrelevant, immaterial or not otherwise supported by record evidence.

COPIES FURNISHED:

Anne Zarzecki 3709 Monserrate

Coral Gables, Florida 33134

Eric J. Taylor, Esquire Assistant Attorney General Department of Legal Affairs The Capitol, 1502

Tallahassee, Florida 32301

Nevin G. Smith Secretary

Department of Administration

435 Carlton Building Tallahassee, Florida 32301

Docket for Case No: 83-002411

Orders for Case No: 83-002411