Mandate Issued: 08/28/2019
FROM THE DISTRICT COURT OF CLEVELAND COUNTY, OKLAHOMA,
HONORABLE THAD BALKMAN, JUDGE.
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
court's order affirming Defendant/Appellant State of
Oklahoma ex rel. Oklahoma Office of Management and
Enterprise Services (OMES) Employees Group Insurance Division
(EGID) and Preston Doerflinger's 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
1980's. It has since fallen into disfavor due to these
symptoms and 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 VGB 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, Wake's doctor submitted a request for
certification for conversion of Wake's 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 Panel's 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. See May 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.
See id.; 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.
See Am. Econ. Ins. Co. v. Bogdahn, 2004 OK 9,
¶11, 89 P.3d 1051. Questions of law are reviewed de
novo. See May, 2006 OK 100, ¶22. The
appellate court may set aside, modify, or reverse a final
agency order if it determines that the substantial rights of
the appellant have been prejudiced because the agency
findings, inferences, conclusions, or decisions are affected
by an error of law. See 75 O.S. 2011 §322
The Covered Services, Supplies and Equipment section of the
policy provides that "Bariatric Surgery" is a
covered service. "Bariatric Surgery" is a general
term which includes a variety of weight-loss procedures. The
policy describes the specific procedures and services
Services covered include, but are not limited to sleeve,
bypass, duodenal switch, revision and conversion of sleeve,
bypass and duodenal switch, and complications from these
procedures performed under the HealthChoice plans.
Wake argues she is seeking a revision surgery, which is a
covered service. OMES argues Wake is requesting a procedure
to correct complications from the 1984 surgery and, because
the previous bariatric surgery was not performed under a
HealthChoice plan, the revision surgery is not covered.
We find the Covered Services language is not ambiguous.
Revision and conversion of sleeve, bypass, and duodenal
switch are covered services. Three categories of covered
services are contemplated in this provision: (1) original
sleeve, bypass, and duodenal switch; (2) revision and
conversion of sleeve, bypass, and duodenal switch; and (3)
complications from either an original sleeve, bypass, or
duodenal switch performed under the HealthChoice plans or a
revision and conversion of a sleeve, bypass, or duodenal
switch performed under the HealthChoice plans. We agree with
Wake that the requested procedure falls into the second
category and is covered by the Plan.
OMES's position that revision and conversion procedures
are covered only if the previous bariatric surgery was
covered by and performed under a HealthChoice plan on or
after January 1, 2017 is problematic. That interpretation
would require us to read additional words into the Covered
Services provision. The second category of Covered Services
does not read "revision and conversion of
sleeve, bypass and duodenal switch if the previous or
original bariatric surgery was performed under the
HealthChoice plans." Additionally, the limiting
language "performed under the HealthChoice plans"
attaches only to "complications from these
procedures" and does not attach to "revision and
conversion of sleeve, bypass and duodenal switch."
"[R]evision and conversion of sleeve, bypass and
duodenal switch" and "complications from these
procedures performed under the HealthChoice plans" are
separated by a ...