Court of Civil Appeals of Oklahoma, Division No. 3
Mandate Issued: 08/28/2019
OPINION HAS BEEN RELEASED FOR PUBLICATION BY ORDER OF THE
COURT OF CIVIL APPEALS, Division No. 3
FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA;
HONORABLE THAD BALKMAN, JUDGE
AND REMANDED WITH INSTRUCTIONS
Dickinson, ROY S. DICKINSON, P.C., Norman, Oklahoma, for
W. Knox, OMES DEPUTY GENERAL COUNSEL, Oklahoma City,
Oklahoma, for Defendants/Appellees.
Mitchell, Presiding Judge.
Plaintiff/Appellant Denise Wake appeals from the district
courts order affirming Defendant/Appellant State of Oklahoma
ex rel. Oklahoma Office of Management and Enterprise
Services (OMES) Employees Group Insurance Division (EGID) and
Preston Doerflingers final order denying certification for
bariatric revision surgery. We find the procedure is a
covered service according to the terms of the health
insurance policy. We reverse the final agency order and
remand to the OMES EGID Grievance Panel with instructions to
enter a final order granting certification.
Wake has suffered from severe obesity her entire adult life.
She had bariatric surgery in 1984. At that time, Wake was in
college. She had a vertical banded gastroplasty (VBG), also
known as stomach stapling. Initially, the procedure was
successful and Wake lost significant weight. However, the VBG
failed, and she re-gained weight. Wake also experienced other
medical issues as a result of the failed VBG, including
erosion of the staple lining, severe abdominal pain, frequent
nausea and vomiting, gastroesophageal reflux disease (GERD),
chronic diarrhea, and food intolerance. VBG was one of the
earliest surgical weight loss procedures and popular in the
1980s. It has since fallen into disfavor due to these
complications and the rise of other more effective
procedures. As a result of unsatisfactory long-term weight
loss and/or these symptoms and complications, revision
surgery is often required. There are several options for
revision surgery, including conversion from a VBG to a
Roux-en-Y (RNY) gastric bypass.
Wake started teaching in the Norman Public Schools district
and has been covered by the employee benefit HealthChoice
Health and Dental Plan (the Plan) since 2012. OMES and EGID
sponsor and administer the Plan. A new benefit for bariatric
surgery was added to the Plan as of January 1, 2017.
Bariatric surgery requires pre-service certification. On
January 6, 2017, Wakes doctor submitted a request for
certification for conversion of Wakes failed VBG to a RNY
gastric bypass. On January 17, 2017, HealthChoice denied
certification finding the procedure was not covered by the
Plan. The explanation of denial provided:
"Gastric surgery done prior to 1/01/2017 therefore not a
covered benefit." Wake filed a timely request for a OMES
EGID Grievance Panel Hearing. After a hearing June 28, 2017,
the Panel issued a final order upholding the denial and
concluding "by the greater weight of the evidence that
the requested procedure is a complication of a non-covered
procedure; therefore, no benefits are available.
Administrative Rule: 260:50-5-12(12)(19), Health Handbook:
pages 32 #10, #11." Wake then appealed to the district
court, where the Panels final order denying certification
was affirmed. Wake appeals.
The issues on appeal are whether the requested procedure is
covered by the Plan and whether any coverage exclusions
apply. The facts are not in dispute. These issues concern
contract interpretation. An insurance policy is a contract,
and the rules of construction apply. SeeMay v.
Mid-Century Ins. Co.,2006 OK 100, ¶22, 151 P.3d 132. If
unambiguous, the terms and words of the contract must be
accepted in their plain, ordinary, and popular sense.
Seeid.;Flitton v. Equity
Fire & Cas. Co.,1992 OK 2, ¶7, 824 P.2d 1132, 1134
(citing Wiley v. Travelers Ins. Co.,1974 OK 147,
¶16, 534 P.2d 1293, 1295). "The construction of an
insurance policy should be a natural and reasonable one,
fairly construed to effectuate its purpose, and viewed in the
light of common sense so as not to bring about an absurd
result." Wiley, 1974 OK 147, ¶16, 534 P.2d at
1295. Whether contract language is ambiguous is a question of
law. SeeAm. Econ. Ins. Co. v. Bogdahn,2004 OK 9, ¶11, 89 P.3d 1051. Questions of law are reviewed
de novo . SeeMay, 2006 OK 100,
¶22, 151 P.3d 132. The appellate court may set ...