STATE OF FLORIDA DIVISION OF ADMINISTRATIVE HEARINGS

ROBERT R. WILLS, )

)

Petitioner, )

)

vs. ) CASE NO. 91-5324

) DEPARTMENT OF ADMINISTRATION, ) DIVISION OF STATE EMPLOYEES' ) INSURANCE, )

)

Respondent. )

)

RECOMMENDED ORDER

This matter was heard by William R. Dorsey, Jr., the Hearing Officer designated by the Division of Administrative Hearings, in Ft. Lauderdale, Florida, on October 11, 1991.

APPEARANCES

For Petitioner: Steven Michaelson, Esquire

9326 Northwest 18th Drive Plantation, Florida 33322

For Respondent: John M. Carlson, Esquire

Department of Administration

438 Carlton Building Tallahassee, Florida 32399-1550

ISSUE

Whether Mr. Wills is entitled to reimbursement from the State Group Health Insurance Plan for health services provided by an otolaryngologist and a speech pathologist for vocal therapy.

PRELIMINARY STATEMENT

On April 2, 1991, the Division of State Employees' Insurance denied Mr.

Wills' request for benefits for health services which had been provided to him by an otolaryngologist, W. Jarrard Goodwin, M.D., and by Donna S. Lundy, M.A., a speech pathologist. Both work at the University of Miami School of Medicine.

Mr. Wills petitioned for a formal hearing to contest the denial, and the matter was heard on October 11, 1991. At the hearing, Mr. Wills testified on his own behalf, and Mr. Bill Seaton testified on behalf of the Department. Mr. Wills submitted into evidence letters of June 4 and August 12, 1990, from Donna S. Lundy addressed to the Department. The Department offered into evidence the State of Florida, Employees' Group Health Self Insurance Plan Benefit Document, as it was amended effective July 1, 1988 (Benefit Document), certain benefit payment schedules, and its letter of April 2, 1991 denying benefits to Mr.

Wills. In addition, after the hearing, the Department submitted copies of the

five claims submitted to the Plan Administrator, Blue Cross-Blue Shield, by Donna S. Lundy and one claim submitted by Dr. W. Jarrard Goodwin. The copies have been obtained from Blue Cross-Blue Shield and are difficult to read. The parties filed their proposed recommended orders by November 12, 1991.

FINDINGS OF FACT

1. The State of Florida makes available to employees several health insurance programs. One of the options available to employees is the State of Florida Employees Group Health Self Insurance Plan. Employees may also enroll in a number of different health maintenance organizations depending upon the county in which the employee resides.

   
   

2. The Employees Group Health Self Insurance Plan was established by the Legislature, and its benefits are described in the Benefit Document. The Plan as a whole is administered by Blue Cross-Blue Shield, which did not write the terms of the Plan.

   
   

3. When an employee chooses to participate in the Plan, the State contributes to the employee's insurance cost by paying a portion of the premium for the employee in order to be covered by the Plan. Mr. Wills is employed by the State of Florida as the Chief Assistant Public Defender for the Seventeenth Judicial Circuit in Broward County, Florida. Mr. Wills is a Senior Trial Attorney in the Public Defender's Office and a senior administrator who needs his voice to carry on his professional duties. He was a member of the Plan at all times relevant to this proceeding.

   
   

4. The case revolves around whether Mr. Wills is entitled to reimbursement for expenses he incurred when he was diagnosed in June 1990 as having a vocal chord lesion, also known as a contact ulcer or granuloma of the vocal fold, and participated in a course of medical treatment for this condition. For example, Mr. Wills would attempt to speak, but portions of words could not be heard. Mr. Wills ultimately was treated by Dr. W. Jarrard Goodwin. Dr. Goodwin is a specialist in diseases of the ear, nose and throat (i.e., an otolaryngologist), and teaches at the University of Miami School of Medicine.

   
   

5. Dr. Goodwin was of the view that the lesion was caused by the mechanical banging together of the vocal chords, and that surgery was not an appropriate treatment for him. Instead, he prescribed an antibiotic and three weeks vocal rest. He had a second consultation with Mr. Wills on August 14, 1990, at which time Dr. Goodwin referred Mr. Wills to Donna S. Lundy, a speech pathologist in the Department of Otolaryngology at the University of Miami Medical School, for voice therapy. A contact ulcer or granuloma can result from the pitch of the voice being too high or too low, from speaking too loudly, or from not breathing from the diaphragm. All of these can be treated with behavioral voice therapy through exercises, either to raise or lower the pitch of the voice, or to breathe from the diaphragm and relax the vocal chords in order to decrease effort and strain near the lesion. Mr. Wills saw Ms. Lundy for sessions of vocal therapy at Dr. Goodwin's office on August 11, September 13, October 5, November 11, and December 27, 1990, and Mr. Willis practiced the exercises he was given between appointments.

   
   

6. Even if Mr. Wills had had surgery, i.e., a stripping of the vocal chords, an alternative treatment for the contact granuloma, he still would have had vocal therapy following that surgery to modify his vocal habits to prevent a recurrence of the lesion.

7. As a result of the vocal therapy, Mr. Wills' condition has improved, and he no longer suffers from the contact granuloma.

   
   

8. Speech therapy treats abnormalities of speech production, language formulation and processing, such as articulation disorders, stuttering, language delay, and disorders of neuromuscular control. It is not the same as voice therapy.

   
   

9. Five claims for health services were submitted on behalf of Mr. Wills by Donna S. Lundy, under procedure code 92507. Code 92507 on the approved fee schedule covers "Speech, Language or Hearing Therapy, with Continuing Medical Supervision, Individual." Dr. Goodwin, also submitted one claim under procedure code 92507 for services provided to Mr. Wills on August 14, 1990. All such claims were rejected by the Department.

   
   

10. The State of Florida, Employees' Group Health Self Insurance Plan benefit document contains exclusions. The applicable exclusion, according to the Department, is Section VII(Q):

    
    

    VII. Exclusions

    The following exclusions shall apply under the plan:

    * * * *

    Q. Occupational, recreational, edu-cational, or speech therapy, orthoptics, biofeedback, contra-ceptives, telephone consultation, cardiac rehabilitation exercise programs, or visits for the purpose of exercise by bicycle, ergometer or treadmill. Benefit Document, page 46.

    
    

    There is no further explanation of the term "speech therapy" found in exclusion VII(Q) in any other portion of the Benefit Document.

    
    

11. The approved fee schedule for the Group Health Self-Insurance Plan has a procedure code for "speech, language or hearing therapy, with continuing medical supervision, individual." That the approved fee schedule has such an entry at all is an indication that there are circumstances where speech language or hearing therapy is covered. Otherwise, the entry would be wholly inconsistent with the Department's position that Section VII(Q) flatly prohibits any payment for "speech therapy".

    
    

12. Ms. Lundy is licensed speech-language pathologist in the State of Florida. Unless a person qualifies for licensure as a speech-language pathologist, a person may not describe him or herself using a number of terms. Among these forbidden terms are "speech pathologist", "speech therapist", "language pathologist", "voice therapist" and "voice pathologist". Section 468.1285(1)(b), Florida Statutes, (1990 Supp.). The Department relies upon the definition for the practice of speech-language pathology in the Professional Practice Act, Chapter 468, Part I, Florida Statutes (1990 Supp.), to argue that any services provided by a licensed speech-language pathologist must necessarily fall within the exclusion found in Section VII(Q) of the Benefit Document.

    
    

13. The Department's argument that because the term "speech therapy" is not defined in the Benefit Document, it should determine the meaning of the term by looking to see how the term "speech-language pathology" is defined in Section 468.1125(7)(a), Florida Statutes (1990 Supp.), the professional practice act for

    speech-language pathology, is unpersuasive. There was no testimony that the Benefit Document was written with all definitions found in various professional practice acts in mind. There is certainly no proof that the Legislature crafted the miscellaneous professional practice acts in Chapter 468 with an eye towards using the definitions in those acts for determinations under the Employees' Group Health Self Insurance Plan. The Benefit Document and the professional practice acts have little or nothing to do with each other, and neither shed light upon terms used in the other.

    
    

    CONCLUSIONS OF LAW

    
    

14. The Division of Administrative Hearings has jurisdiction over this matter. Section 120.57(1), Florida Statutes.

    
    

15. As a general matter, ambiguities in insurance policies are construed strictly against the insurer and in favor of the insured. Triano v. State Farm Mutual Automobile Insurance Co., 565 So.2d 748 (Fla. 3rd DCA 1990). This general rule appears to have been applied by the First District Court of Appeal in the case of Ganson v. State, Department of Administration, 554 So.2d 516, 520-21 (Fla. 1st DCA 1989). The Ganson court found that the Department's interpretation of the Benefit Document's unambiguous preexisting condition exclusion was strained, and not supported by the record evidence. Id. at 521.

    The court went on to note that where the provisions of a contract are ambiguous, the ambiguity is to be resolved by the trier of fact. 554 So.2d 521 at n. 14.

    
    

16. The exclusion here is ambiguous. The term "speech therapy" is not defined in the Benefit Document. It is not possible to tell whether it is meant to exclude all palliative treatment or therapy for imperfections or variations from accepted speech, which are caused either by a physical defect in the organs of speech such as the diaphragm, the vocal chords, the mouth and tongue, as well as therapy for mental processing disorders such as stuttering, delayed language development or language processing. The distinction between speech therapy and voice therapy explained by Ms. Lundy in her August 12, 1991, letter is persuasive. See Findings 5 and 8. The vocal therapy here was provided for a contact granuloma. There is no reason to believe the plan meant to forbid treatment of that condition, or to require only surgical treatment when surgery is not the appropriate treatment according to the attending physician. The ambiguity is significant. The policy is not one which employees individually bargain for. By reading the Benefit Document an employee would not know whether treatment for vocal chord lesions such as that received by Mr. Wills from Dr. Goodwin and Ms. Lundy was covered or not, and therefore would not know whether he should seek additional insurance coverage for voice therapy to supplement the coverage found in the Benefit Document. The general rule ought to apply here, that ambiguity in an insurance policy should be strictly construed against the insurer who wrote it and in favor of the insured. There is no reason to place the Division of State Employees' Insurance in any better position than a private insurance company would be in litigating cases which turn on exclusionary clauses in health or casualty insurance policies. Triano, supra, 565 So.2d at 749.

    
    

17. During the course of testimony, Mr. Seton also objected to payment of Mr. Wills' claims on a ground not found in the Department's denial letter: that plan documents exclude payment for "services, care, treatment and supplies furnished by a person who ordinarily resides in the insured's home or by any person or institution not otherwise defined in Section I of this Benefit Document." Mr. Seton argued that there is no definition of a voice pathologist, speech pathologist, or similar professional found in Section I, so that no

payment can be made for the services of Ms. Lundy. This argument was not raised when the Department denied the claim by Mr. Wills, and the Department never moved to amend the denial letter. The Department therefore has raised no such issue in this proceeding. Even if a motion to amend had been filed, I would be disinclined to allow the Department to advance new arguments serially during the course of the final hearing.

RECOMMENDATION

It is recommended that the Secretary of the Department of Administration enter a Final Order requiring the Division of Employees' State Insurance to pay all claims submitted by Donna S. Lundy and the claim of Dr. Goodwin which have been denied. The Benefit Document does not clearly exclude voice therapy for a contact granuloma, and in the absence of a clear exclusion, the law requires that those claims be paid.

RECOMMENDED this 24th day of December, 1991, in Tallahassee, Florida.

WILLIAM R. DORSEY

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, FL 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 24th day of December, 1991.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 91-5324

Rulings on findings proposed by the Department:

1. Adopted in Finding 1.

2. Adopted in Findings 2 and 3.

3. Rejected as unnecessary.

4. Adopted in Finding 3.

5. Adopted in Finding 4.

6. Discussed in Finding 5.

7. Rejected as unnecessary. See, Conclusions of Law.

8. Adopted in Finding 9.

9. Adopted in Finding 10.

10. Rejected. See, Conclusions of Law.

11. Adopted in Finding 5.

Rulings on findings proposed by Mr. Wills, treated as if the paragraphs had been numbered:

1. Adopted in Finding 3.

2. Adopted in Findings 3 and 4.

3. Adopted in Finding 5.

4. Adopted in Finding 7.

5. Generally adopted in Finding 9.

6. Generally adopted in Finding 5.

7. Adopted in Findings 5 and 9.

COPIES FURNISHED:

Steven Michaelson, Esquire 9326 Northwest 18th Drive Plantation, FL 33322

John M. Carlson, Esquire Department of Administration

438 Carlton Building Tallahassee, FL 32399-1550

John A. Pieno Secretary

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

Augustus D. Aikens, Jr. General Counsel

Department of Administration

435 Carlton Building Tallahassee, FL 32399-1550

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 10 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: 91-005324

Orders for Case No: 91-005324