STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TERRI J. GANSON, )

)

Petitioner, )

)

vs. ) CASE NO. 87-1654

) STATE OF FLORIDA, DEPARTMENT OF ) ADMINISTRATION, OFFICE OF STATE ) EMPLOYEES INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

Pursuant to notice a formal hearing was conducted in this case on October 6, 1987, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For Petitioner: Kenneth D. Kranz, Esquire

Eric B. Tilton, P.A. Post Office Drawer 550

Tallahassee, Florida 32302

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

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

ISSUES AND INTRODUCTION

The principal issue in this case is whether the Petitioner is entitled to reimbursement under the State of Florida Group Health Insurance Plan for certain health care expenses she has incurred since she became a State employee and enrolled in the Plan. The Petitioner contends that she is entitled to reimbursement and to attorney's fees. The Respondent contends that the Petitioner is entitled to neither. The central factual dispute is whether the Petitioner's claim for benefits is barred by the provision in the Plan which excludes benefits for pre-existing conditions during the first 365 days of participation in the Plan.

At the formal hearing in this case, the Petitioner testified on her own behalf and also presented the testimony of Donald M. Whitley, II, Ph.D. The Respondent presented the testimony of Mr. William Seaton. Both parties offered exhibits. Also, the parties stipulated to the filing of the transcript of the deposition of F. A. Munasifi, M.D., as a late-filed exhibit.

Subsequent to the hearing both parties filed proposed recommended orders, which have been carefully considered during the preparation of this recommended order. Specific rulings on the findings of fact proposed by both parties are contained in the Appendix which is attached to and incorporated into this recommended order.

FINDINGS OF FACT

Based on the stipulations and admissions of the parties, on the exhibits received in evidence, and on the testimony of the witnesses at hearing, I make the following findings of fact.

Findings based on admissions

1. Petitioner, Terri J. Ganson, (hereinafter "Petitioner" or "Ganson") enrolled in the State of Florida Group Health Insurance Plan (hereinafter "Plan") in January, 1986, and has been validly enrolled as a member in good standing since said date.

   
   

2. The pre-existing condition exclusion appears as Subsection VIII.C. of the State Employees Group Self-Insurance Document and provides:

   
   

   For any accident or illness for which an insured received diagnostic treatment or received services within three hundred and sixty-five (365) consecutive days prior to the effective date of coverage, no payment will be allowed for services related to such accident or illness which are received during the three hundred and sixty-five (365) conse- cutive days subsequent to the effective date of coverage; however covered services related to such accident or illness which are received after three hundred and sixty-five

   (365) consecutive days of coverage are cover- ed by the plan.

3. The Plan, at Subsection I.AE., defines "illness" as follows: "Illness" means physical sickness or disease,

   pregnancy, bodily injury, congenital anomaly or mental or nervous disorder. Illness for the purposes of this Plan shall entitle an insured to benefits for any medically nece- ssary services related to elective surgical procedures performed by a physician for the purpose of sterilization.

   
   

4. By the terms of the Plan, the pre-existing condition paragraph of the Plan applied to claims filed by Petitioner for treatments received during the period from February 1, 1986, until January 31, 1987.

   
   

5. Those claims submitted by Petitioner or on Petitioner's behalf for reimbursement under the Plan which were denied on the basis of the pre-existing condition exclusion and which are the subject of this dispute amount to a total of $5,682.15 for services provided by the following providers in the respective amounts shown:

   
   

   a. TMRMC	$2,352.65
   b. Dr. Shamis	$225.50
   c. Dr. Munasifi	$50.00
   d. Biomedical Ref.	$50.00
   e. Dr. Whitley	$3,000.00

   
   

6. The services received by Petitioner for which reimbursement is in dispute were services actually received by Petitioner, Petitioner was charged for such services in the aggregate amounts specified, such services were medically necessary treatments, such services were rendered for the treatment of bipolar disorder, and such services were otherwise covered by the Plan. Petitioner is entitled to reimbursement for the amount of the charges for such services, without limitation or exclusion, if said condition for which services were rendered did not constitute a pre-existing condition (i.e., an "accident or illness" for which Petitioner "received diagnostic treatment or received services within three hundred and sixty-five days prior to . . ." her enrollment in the Plan.

   
   

   Findings based on the testimony and the exhibits

   
   

7. Prior to her enrollment in the Plan, the Petitioner had been diagnosed as having situational depression, for which she had received treatment prior to her enrollment in the Plan. Part of that treatment occurred within three hundred sixty-five days immediately preceding Petitioner's enrollment in the Plan.

   
   

8. Prior to her enrollment in the Plan, the Petitioner had never been diagnosed as having bipolar affective disorder. Prior to her enrollment in the Plan, the Petitioner had never been treated for bipolar affective disorder.

   
   

9. Bipolar affective disorder is believed to be caused by a deregulation of the chemical neurotransmitters in the brain. The primary treatment modality for bipolar affective disorder is the administration of lithium carbonate. The administration of lithium carbonate is specific for bipolar affective disorder and the use of lithium carbonate is one of the main differences between treatment for bipolar affective disorder and the type of depression for which Petitioner was treated prior to her enrollment in the Plan. Behavioral therapy may also be of assistance in the treatment of the symptoms of bipolar affective disorder, as it is in the treatment of the symptoms of other conditions which cause depression.

   
   

10. Situational depression and bipolar affective disorder are separate and distinct conditions; they are not the same condition. Specifically, the former is not an earlier stage of the latter. The fact that both conditions have certain common symptoms (i.e., periods of depression) does not mean that they are the same condition.

    
    

    CONCLUSIONS OF LAW

    
    

    Based on the foregoing findings of fact and on the applicable legal principles, I make the following conclusions of law.

    
    

11. The Division of Administrative Hearings has jurisdiction over the subject matter of and the parties to this proceeding. Sec. 120.57, Fla. Stat.

12. The terms of the State Group Health Insurance Plan are governed by Section 110.123, Florida Statutes, and by Chapter 22K-1, Florida Administrative Code.

    
    

13. The evidence in this case establishes that bipolar affective disorder is not the same condition as situational depression. The evidence also establishes that the Petitioner was never diagnosed as having, and was never treated for, bipolar affective disorder until after she was eligible for benefits under the Plan. Therefore, Petitioner's treatment for bipolar affective disorder was not treatment for a pre-existing condition within the meaning of the pre-existing condition exclusion at Subsection VIII.C. of the State Employees' Group Health Self- Insurance Document. Accordingly, the Petitioner is entitled to reimbursement for medical treatment in the amount stipulated to by the parties.

    
    

14. The Petitioner's claim for attorney's fees is based on Section 627.428, Florida Statutes, which provides for an award of attorney's fees to a successful insured in civil actions in the courts of this state. This proceeding is not a civil action and this forum is not a court. Therefore, the provisions of Section 627.428, Florida Statutes, are not applicable to these proceedings.

RECOMMENDATION

Based on all of the foregoing, I recommend the entry of a Final Order to the following effect:

1. Reimbursing the Petitioner for her medical expenses in the amounts stipulated to by the parties, namely, $5,682.15; and

   
   

2. Denying the Petitioner's claim for attorney's fees in this proceeding.

DONE AND ENTERED this 30th day of November, 1987, at Tallahassee, Florida.

MICHAEL M. PARRISH, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 30th day of November, 1987.

APPENDIX TO RECOMMENDED ORDER IN CASE NO. 87-1654

The following are my specific rulings on all of the findings of the findings of fact proposed by the parties:

Findings proposed by Petitioner:

Paragraph 1 (including subparts [a] through [f]): Accepted.

Paragraphs 2 and 3: Rejected as unnecessary details in light of admitted facts.

Paragraphs 4 and 5: Accepted in substance with most details omitted as unnecessary.

Paragraph 6: First sentence accepted. Second sentence rejected as unnecessary details.

Paragraphs 7, 8, 9, 10, 11, 12, 13, and 14: Rejected as unnecessary details in light of admitted facts.

Paragraphs 15, 16, 17, and 18: Rejected as subordinate and unnecessary details.

Paragraph 19: First sentence accepted. Second sentence rejected as subordinate and unnecessary details.

Paragraphs 20 and 21: Accepted.

Paragraphs 22, 23, 24, 25, 26, 27, and 28: Rejected as subordinate and unnecessary details.

Paragraph 29: First sentence accepted in substance. Remainder of this paragraph rejected as subordinate and unnecessary details.

Paragraphs 30, 31 and 32: Accepted in substance.

Paragraphs 33, 34, and 35: Rejected as unnecessary details in light of admitted facts.

Paragraphs 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, and 46: Rejected as subordinate and unnecessary details.

Paragraphs 47, 48, 49, 50, and 51: Rejected as consti-tuting summaries of argument rather than proposed findings of fact.

Findings proposed by Respondent:

Paragraphs 1, 2, and 3: Rejected as unnecessary details in light of admitted facts, with exception of proposed finding regarding effective date of coverage.

Paragraphs 4, 5, and 6: Accepted in substance.

Paragraph 7: Accepted in substance with unnecesary details deleted. Paragraph 8: Rejected as subordinate and unnecessary details.

Paragraphs 9 and 10: Rejected as unnecessary details in light of the admitted facts and also as not entirely consistent with the greater weight of the evidence.

Paragraph 11: Rejected as subordinate and unnecessary details. Paragraph 12: Accepted in substance as to date of first diagnosis.

Rejected insofar as it suggests that Dr. Munasifi "refused" to make a particular statement.

Paragraph 13: Rejected as subordinate and unnecessary details.

Paragraph 14: Accepted as to nature of diagnosis. The remainder is rejected as subordinate and unnecessary details.

Paragraph 15: First sentence is accepted. Second sentence is rejected as contrary to the greater weight of the evidence. Third and fourth sentences are rejected as irrelevant or as subordinate and unnecessary details.

Paragraphs 16 and 17: Rejected as subordinate and unnecessary details.

Paragraph 18: Rejected as irrelevant and as an over- simplification which suggests an inference not warranted by the greater weight of the evidence.

Final unnumbered summary paragraph: Rejected as constituting a summary of testimony rather than proposed findings of fact and, in any event, as subordinate and unnecessary details.

COPIES FURNISHED:

Kenneth D. Kranz, Esquire Eric B. Tilton, P.A.

P. O. Drawer 550 Tallahassee, Florida 32302

Augustus D. Aikens, Jr., Esquire General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Adis Vila, Secretary Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

=================================================================

AGENCY FINAL ORDER

=================================================================

STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION

TERRI J. GANSON,

Petitioner,

vs. DOAH CASE NO. 87-1654

DOA NO. A-87-10

STATE OF FLORIDA, DEPARTMENT OF ADMINISTRATION, OFFICE OF STATE EMPLOYEES' INSURANCE,

Respondent.

/

Pursuant to notice a formal hearing was conducted in this case on October 6, 1987, at Tallahassee, Florida, before Michael M. Parrish, a duly designated Hearing Officer of the Division of Administrative Hearings. The parties were represented at the hearing as follows:

APPEARANCES

For the Petitioner: Mr. Kenneth D. Kranz

Eric B. Tilton, P.A. Attorneys at Law

Post Office Drawer 550 Tallahassee, Florida 32302

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

General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

ISSUES AND INTRODUCTION

The principal issue in this case is whether the Petitioner is entitled to reimbursement under the State of Florida Group Health Insurance Plan for certain health care expenses she has incurred since she became a State employee and enrolled in the Plan. The Petitioner contends she is entitled to reimbursement and attorney's fees. The Respondent contends the Petitioner is entitled to neither. The central factual dispute is whether the Petitioner's claim for benefits is barred by the provision in the Plan which excludes benefits for pre- existing conditions during the first 365 days of participation in the Plan.

At the formal hearing in this case, the Petitioner testified in her behalf and also presented the testimony of Donald M. Whitley, II, Ph.D. The Respondent presented the testimony of Mr. William Seaton. Both parties offered exhibits.

Also, the parties stipulated to the filing of the transcript of the deposition of F.A. Munasifi, M.D., as a late-filed exhibit.

Subsequent to the hearing both parties filed proposed recommended orders, and a recommended order was issued on November 30, 1987.

FINDINGS OF FACT

Based on the stipulations and admissions of the parties, on the exhibits received in evidence, the testimony of the witnesses at hearing, and recommended findings of the hearing officer, I make the following findings of fact:

1. Petitioner, Terri J. Ganson, (hereinafter "Petitioner" or "Ganson") enrolled in the State of Florida Group Health Insurance Plan (hereinafter "Plan") in January, 1986, and has been validly enrolled as a member in good standing since said date.

   
   

2. The pre-existing condition exclusion appears as Subsection VIII.C. of the State Employees' Group Self-Insurance

Document and provides:

For any accident or illness for which an insured received diagnostic treatment or received services within three hundred and sixth-five (365) consecutive days prior to the effective date of coverage, no payment will be allowed for services related to such accident or illness which are received dur- ing the three hundred and sixty-five (365) consecutive days subsequent to the effective date of coverage; however covered services related to such accident or illness which are received after three hundred and

sixty-five (365) consecutive days of cov- erage are covered by the plan.

The Plan, at Subsection I.AE., defines "ill- ness as follows:

"Illness" means physical sickness or disease, pregnancy, bodily injury, congenital anomaly or mental or nervous disorder. Illness for the purposes of this Plan shall entitle an insured to benefits for any medically nece- ssary services related to elective surgical procedures performed by a physician for the purpose of sterilization.

1. By the terms of the Plan, the pre-existing condition paragraph of the Plan applied to claims filed by Petitioner for treatments received during the period from February 1, 1986, until January 31, 1987.

   
   

2. Those claims submitted by Petitioner or on Petitioner's behalf for reimbursement under the Plan which were denied on the basis of the pre-existing condition exclusion and which are the subject of this dispute amount to a total of $5,682.15 for services provided by the following providers in the respective amounts shown:

   
   

   a. TMRMC	$2,352.65
   b. Dr. Shamis	$ 225.50
   c. Dr. Munasifi	$ 50.00
   d. Biomedical Ref.	$ 50.00
   e. Dr. Whitley	$3,000.00

   
   

3. The services received by Petitioner far which reimbursement is in dispute were services actually received by Petitioner, Petitioner was charged for such services ire the aggregate amounts specified, such services were medically necessary treatments, such services were rendered for the treatment of bipolar disorder, and such services were otherwise covered by the Plan. Petitioner is entitled to reimbursement for the amount of the charges for such services, without limitation or exclusion, if said condition for which services were rendered did not constitute a pre-existing condition (i.e., an "accident or illness" for which Petitioner "received diagnostic treatment or received services within three hundred and sixty-five days prior to..." her enrollment in the Plan.

   
   

4. Prior to her enrollment in the Plan, Petitioner had been diagnosed and received services for episodes of depression, which was at various times described as "situational" or "major depressive". Other than the broad mental or nervous disorder of depression, the specific characterization of Petitioner's condition as bipolar effective disorder was not and could not have been made until April 9, 1986, since Petitioner's Psychologist was not trained in diagnosing the disorder. (Whitley p. 40,51 and Munasifi p. 10)

   
   

5. Psychologist, Dr. Donald Whitley, II diagnosed and provided services to Petitioner prior to her enrollment in the Plan for depression which he characterized as "situational" from April, 1985. I find this particular characterization of petitioner's mental or nervous disorder does not alter the fact she suffered from depression nonetheless.

   
   

6. Generally Psychiatrists are the professionals who are able to diagnose bipolar affective disorders and Petitioner did not see a Psychiatrist until April 9, 1986. (Munasifi 10, Testimony of Terry Ganson)

7. Bipolar affective disorder is new terminology for the old manic depressive illness which means a patient, suffering from depression, has experienced at least one high (manic) episode.

   
   

8. Two or three weeks prior to and during Petitioner's hospitalization in April 1986, she had transient mild episodes of hyperactivity, of an hour's duration. Neither Dr. Whitley nor Dr. Munasifi observed any of these episodes. Dr. Munasifi described Petitioner's manic episodes as periods "where she would get hyper very briefly". (Munasifi P. 16,19,21,24,25- Whitley T-52)

   
   

9. Bipolar affective disorder (Manic depressive illness) is, depending on its phase, treated with Litihium Carbonate and other antimanic and antidepressant medications, such a Tegretol. Petitioner's treatment with the drug Litihium Carbonate, does not establish Petitioner is suffering from a "different" mental or nervous disorder. I am persuaded by the testimony of Dr. Faisal Munasifi, a board certified Psyschiatrist, who initially diagnosed Petitioner's increased depression; sadness; lack of energy and motivation's changes in appetite; lost of weight; difficulty in falling asleep; and unresponsiveness to medication as a major depressive disorder and later charged it based on Petitioner's response to the lithicum treatment rather than her observable symptoms. (Munasifi p.9)

   
   

10. Lithium carbonate is an antidepressant drug used to treat various depressive illnesses, including bipolar affective disorder. Petitioner's sensitivity to other antidepressants, did not extend to Lithicum Carbonate. (Munasifi p. 12,13,31 -Whitley T-37).

    
    

11. Petitioner's episodes of depression have varied in intensity from mild to severe since 1984. Petitioner has and continues to treat the mental or nervous depressive disorder with drugs and therapy. In fact, excluding her hospital cost of $2,352.65, practically all of the remainder of her claim ($3,000 of $3,325.50) is requested to reimburse Petitioner for her psychologist, Dr. Whitley. Whitley also provided therapy to Petitioner for depression immediately prior to her enrollment in the Plan.

    
    

12. I find situational depression and bipolar effective disorder are separate conditions under the same mental or nervous disorder (depression) which is and was treatable in the same general manner, despite Petitioner's unresponsiveness to Mellavil and Cogentin and responsiveness to Lithicum.

    
    

13. In view of, (1) the testimony of Dr. Munasifi who could not render an opinion that Petitioner first contacted bipolar affective disorder in April 1986 (Munasifi 15,17-18); (2) the evidence which revealed patients suffering from situational depression or other major depressive disorders recurrent may also display some or all of the same symptoms as a person who suffers from bipolar affective disorder (Munasifi p.9,26,27,28- Whitley T-40); (3) the treatment for each disorder includes antidepres-sant drugs and therapy; and (4) within the three hundred sixty-five days prior to February 1, 1986, Petitioner received anti-depressant drugs and therapy for depression (Whitley T-50), I find the pre- existing condition exclusion applicable to Petitioner.

    
    

14. Mental or nervous disorder setforth in the Benefit Document is inclusive of all mental or nervous conditions. Petitioner's treatment of any such condition within 365 days prior to her enrollment excludes her immediate coverage. (Seaton T-73, 86)

CONCLUSIONS OF LAW

The Division of Administrative Hearings has jurisdiction of the parties to and the subject matter of this proceeding, Section 120.57 Florida Statutes (1987).

Petitioner contends that the Respondent incorrectly identified as a pre- existing condition the manic depressive illness condition which she received services while a member of the State of Florida Group Health Insurance Plan, and as a result thereof Respondent incorrectly denied Petitioner reimbursement for such treatment under the terms of the Plan. Petitioner contends manic depressive illness (bipolar disorder) is clinically distinct from the situational depression she was diagnosed as having, or for which she received services during the year prior to her enrollment in the Plan and which condition, therefore, was not a pre-existing condition under the terms of the Plan. Petitioner, therefore, contends that she is entitled to reimbursement for such services under the terms of the Plan, and, if successful, is entitled to reasonable attorney's fees.

In the final analysis, Petitioner received services for depression years before her hospitalization and months afterwards. She was treated with various medications and therapy and have received services since 1984, for her depression.

As Dr. Munasifi admitted "depression is depression".

The pre-existing condition exclusion appears as Subsection VIII.C. of the State Employees' Group Health Self-Insurance Document and excludes any payments.

For any or illness for which Petitioner received diagnostic treatment or received services within three hundred and sixth-five (365) consecutive days prior to the effective date of coverage.

Clearly, Petitioner's depression was a mental or nervous disorder under the State Plan.

By the terms of the Plan, the pre-existing condition paragraph of the Plan applied to claims filed by Petitioner for treatments received during the period from February 1, 1986, until January 31, 1987.

Mental disorders are defined as "a group of related psychiatric disorders which are generally divided into two classes. In one class are disorders marked by a basic or primary impairment or brain function generally associated with brain disease... In the other class, the disorders are more likely to be the result of the individual's inability to adapt his environment. Any impairment of the function of the brain is regarded as secondary to this difficulty." Schmit's Attorneys' Dictionary of Medicine, 1986. Petitioner's disorders were not related to brain disease and therefore fall within this second category.

The Petitioner's claim for attorney's fees is based on Section 627.428, Florida Statutes, which provides for an award of attorney's fees to a successful insured in civil actions in the courts of this state. This proceeding is not a civil action and this forum is not a court. Therefore, the provisions of Section 627.428, Florida Statutes, are not applicable to these proceedings.

Accordingly, Petitioner is not entitled to any reimbursement for the claims incurred between February 1, 1986 through January, 1987.

This Order constitutes final agency action. Judicial review of this proceeding may be instituted by filing a Notice of Appeal in the First District Court of Appeal pursuant to Section 120.68, Florida Statutes. Such notice must be filed with the District Court of Appeal with thirty (30) calendar days of the date this Order is filed in the official records of the Department of Administration, as indicated in the Certificate of Clerk below, or further review of this action will be barred.

SO ORDERED in Tallahassee, Florida this 3rd day of May, 1988.

ADIS M. VILA, SECRETARY

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Filed with the Clerk of the Department of Administration this 3rd day of April, May 1988.

COPIES FURNISHED:

Kenneth D. Kranz, Esquire Eric B. Tilton, P.A.

Post Office Drawer 550 Tallahassee, Florida 32302

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, Florida 32399-1550

Michael M. Parrish, Hearing Officer Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

Docket for Case No: 87-001654

Orders for Case No: 87-001654