South Carolina              
Administrative Law Court
Edgar A. Brown building 1205 Pendleton St., Suite 224 Columbia, SC 29201 Voice: (803) 734-0550

SC Administrative Law Court Decisions

CAPTION:
Elizabeth C. Grier vs. SCBCB

AGENCY:

PARTIES:
Appellant:
Elizabeth C. Grier

Respondents:
South Carolina Budget & Control Board, Employee Insurance Program
 
DOCKET NUMBER:
07-ALJ-30-0139-AP

APPEARANCES:
For the Appellant:
D. Michael Kelly, Esquire
Amanda G. Steinmeyer, Esquire, on brief)

For the Respondent:
Theodore D. Willard, Jr., Esquire
 

ORDERS:

ORDER

This matter is before the Administrative Law Court (“ALC”) in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-23-600(D) (Supp. 2007) and § 1-11-710(C) (2006). Elizabeth C. Grier (“Grier”) appeals the decision of the South Carolina Budget & Control Board Employee Insurance Program (“EIP”) denying coverage for an abdominoplasty.[1]

I. STATEMENT OF THE CASE

Grier is a member of the State Health Plan (“Plan”) who underwent a Cesarean section for a twin term gestation. Several months following the delivery, Grier was experiencing increasing pain in her abdominal wall which was limiting her physical activity. Her gynecologist, Dr. David H. Postles, Jr., diagnosed Grier with an umbilical hernia[2] and marked diastatis recti.[3] Dr. Robert H. Bunch, a general surgeon, concurred with the diagnosis and further referred Grier to Dr. Donen Davis, a board-certified plastic surgeon. Dr. Davis consulted with Grier about her hyper-pigmented skin and abdominal distention and pain, and determined Grier would need an abdominoplasty to correct the problem. Grier was scheduled to have her abdominoplasty performed by Dr. Davis at the same time her hernia surgery was performed by Dr. Bunch.

Grier requested pre-authorization from Blue Cross Blue Shield (“BCBS”), the Plan’s third-party administrator. BCBS’s in-house medical director, Dr. Ashby Jordan, a pediatrician, denied coverage for Grier’s abdominoplasty,[4] finding the procedure to be cosmetic and not medically necessary. Grier appealed the decision. BCBS then requested a review from National Medical Review, an organization that provides insurance companies with opinions regarding benefit plans. Dr. Eric Rothenberg, a board-certified plastic surgeon of the National Medical Review, found that abdominoplasty was not medically necessary. Based on this, Dr. Jordan once again denied pre-authorization. EIP requested an additional review of Grier’s request, and Dr. Jordan sought a second independent review. That review was conducted by Dr. Michael Wheatley, a board-certified plastic surgeon; he concluded that the abdominoplasty was cosmetic.

EIP denied coverage based on the recommendation of BCBS, finding that an abdominoplasty is a cosmetic procedure that is excluded from coverage under the Plan.[5] The applicable Plan language provides:

No benefits will be provided under any Article of this Plan for any service, supply or charges for the following . . . .

Hospital and Physicians services and prescription drugs related to procedures or goods that have primarily cosmetic effects including but not limited to cosmetic surgery, or the complications resulting there from. Cosmetic goods, procedures or surgery shall mean all goods, procedures, and surgical procedures performed to improve appearance or to correct a deformity without restoring a bodily function. In the instances of the following and other procedures which might be considered “cosmetic” — e.g., rhinoplasty (nose), mentoplasty (chin), rhytidoplasty (face lift), glabellar rhytidoplasty, surgical planning (dermabrasion), blepharoplasty (eyelid), mammoplasty (suspension or augmentation), superficial chemosurgery (acid peel of the face) and rhytidectomy (abdomen, legs, hips, or buttocks including lipectomy or adipectomy) — benefits may only be provided when the malappearance or deformity was caused by physical trauma, surgery, or congenital anomaly (as opposed to familial characteristics or aging phenomenon) occurring after the Covered Person’s Effective Date of coverage under this Plan or a Predecessor Plan; provided, however, that surgery to correct a cleft palette, or for restoration required because of burn injuries, or other similar procedures performed in stages or after certain growth has been attained, are not excluded because the physical trauma, surgery or congenital anomaly (as opposed to familial characteristics or aging phenomenon), occurred after the Covered Person’s Effective Date of Coverage under this Plan or a Predecessor Plan . . . .

(R. at 53) (emphasis added).

Grier exhausted her administrative remedies with EIP and now appeals EIP’s denial of coverage to this court pursuant to S.C. Code Ann. § 1-23-380 and § 1-11-710(C) (2006). Upon consideration of the briefs and oral arguments, the court reverses the decision of EIP to deny coverage.

II. ISSUE

Did EIP err in finding that Grier’s abdominoplasty was cosmetic and not medically necessary?

III. STANDARD OF REVIEW

As set forth above, this matter is before the ALC in its appellate jurisdiction pursuant to S.C. Code Ann. § 1-11-710(C), § 1-23-380, and § 1-23-600(D).  Accordingly, the Administrative Procedures Act’s standard of review governs this appeal.  See S.C. Code Ann. § 1-23-380(A) (Supp. 2007); see also Byerly Hosp. v. S.C. State Health & Human Servs. Fin. Comm’n, 319 S.C. 225, 229, 460 S.E.2d 383, 385 (1995).  The standard used by appellate bodies, including the ALC, to review agency decisions is provided by S.C. Code Ann. § 1-23-380(A)(5).  See S.C. Code Ann. § 1-23-380(B) (Supp. 2007) (directing Administrative Law Judges to conduct appellate review in the same manner prescribed in Section 1-23-380(A)).  This section provides:

The court may not substitute its judgment for the judgment of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision [of the agency] if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:

(a) in violation of constitutional or statutory provisions;

(b) in excess of the statutory authority of the agency;

(c) made upon unlawful procedure;

(d) affected by other error of law;

(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or


(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.

S.C. Code Ann. § 1-23-380(A)(5) (Supp. 2007). 

A decision is supported by “substantial evidence” when the record as a whole allows reasonable minds to reach the same conclusion reached by the agency.  Bilton v. Best Western Royal Motor Lodge, 282 S.C. 634, 321 S.E.2d 63 (Ct. App. 1984).  Further, substantial evidence means that a decision will not be set aside simply because reasonable minds may differ on the judgment.  Lark v. Bi-Lo, 276 S.C.130, 276 S.E.2d 304 (1981).  Substantial evidence is not a mere scintilla of evidence, nor the evidence viewed blindly from one side of the case, but is evidence that, considering the record as a whole, would allow reasonable minds to reach the conclusion the agency reached in order to justify its action. Hargrove v. Titan Textile Co., 360 S.C. 276, 289, 599 S.E.2d 604, 611 (Ct. App. 2004). The fact that the record, when considered as a whole, presents the possibility of drawing two inconsistent conclusions from the evidence does not prevent the agency’s finding from being supported by substantial evidence.  Id.; Waters v. S.C. Land Res. Conservation Comm’n, 321 S.C. 219, 467 S.E.2d 913 (1996); Grant v. S.C. Coastal Council, 319 S.C. 348, 461 S.E.2d 388 (1995). However, § 1-23-380(A)(5) requires the reviewing tribunal to consider not only the amount of evidence, but also the quality of that evidence; it must be both “reliable” and “probative,” as well as “substantial.” See S.C. Code Ann. § 1-23-380(A)(5).

An abuse of discretion occurs when a decision is based upon an error of law, such as application of the wrong legal principle; or, when based upon factual conclusions, the ruling is without evidentiary support; or when the judge is vested with discretion, but the ruling reveals no discretion was exercised; or when the ruling does not fall within the range of permissible decisions applicable in a particular case. Ex Parte Capital U-Drive-It, Inc., 369 S.C. 1, 5, 630 S.E.2d 464, 467 (2006). A decision is arbitrary or capricious when no rational basis for the conclusion exists, when it is based on one’s will and not upon any course of reasoning and exercise of judgment. Converse Power Corp. v. S.C. Dep’t of Health and Envtl. Control, 350 S.C. 39, 564 S.E.2d 341 (Ct. App. 2002); Deese v. S.C. State Bd. of Dentistry, 286 S.C. 182, 184-85, 332 S.E.2d 539, 541 (Ct. App. 1985). A decision may be arbitrary or capricious when it is made at one’s pleasure without adequate determining principles, or is governed by no fixed rules or principles. Deese, 286 S.C. at 184-85, 332 S.E.2d at 341. Non-uniform, inconsistent, or selective application of authority can indicate arbitrariness. See Mungo v. Smith, 289 S.C. 560, 571, 347 S.E.2d 514, 521 (Ct. App. 1986).

It is helpful to note that the standard of review in this case is analogous to the standard used in cases arising under the federal Employee Retirement Income Security Act (“ERISA”). See, e.g., Bynum v. Cigna Healthcare of N.C., Inc., 287 F.3d 305 (4th Cir. 2002) (holding that an insurer’s decision could be overturned if “a coverage decision is unreasonable” and the insurer “abused its discretion”); see also Booth v. Wal-Mart Stores, Inc. Assocs. Health & Welfare Plan, 201 F.3d 335, 342 (4th Cir. 2002); Feder v. Paul Revere Life Ins. Co., 228 F.3d 518, 522 (4th Cir. 2000). Accordingly, although not binding, ERISA case law provides guidance in analyzing the issue before the court.

IV. DISCUSSION

This case presents an interesting question regarding medical expert testimony in Employee Insurance Program cases. EIP contends that its decision should be upheld under the applicable standard of review because in a “battle of the experts” situation, its decision to accord more weight to some physicians over others must be affirmed. (Resp’t’s Br. 10). Grier argues, however, that EIP should have given greater deference to Grier’s treating physicians than the non-treating physicians relied upon by EIP. (Appellant’s Br. 3).

  1. Treating Physician Rule

Under the “treating physician rule,” the opinion of the physician treating the patient is entitled to greater deference because of that physician’s firsthand knowledge of the patient’s specific injury; in other words, a court can afford special weight to the opinion of a claimant’s treating physician. See, e.g., Mitchell v. Schweiker, 699 F.2d 185, 187 (4th Cir. 1983). Whether the treating physician rule should be applied can depend on the context of the case. For example, the treating physician rule is applied in determining whether a claimant is entitled to federal social security disability benefits. See 20 C.F.R. § 404.1527(d) (“Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations.”). By contrast, the United States Supreme Court has held that the treating physician rule does not apply in ERISA cases. Black & Decker Disability Plan v. Nord, 538 U.S. 822, 834 (2003) (“[C]ourts have no warrant to require administrators automatically to accord special weight to the opinions of a claimant’s physician; nor may courts impose on plan administrators a discrete burden of explanation when they credit reliable evidence that conflicts with a treating physician’s evaluation.”) (emphasis added). The Nord Court further explained:

The treating physician rule has not attracted universal adherence outside the Social Security context. Some courts have approved a rule similar to the Social Security Commissioner’s for disability determinations under the Longshore and Harbor Workers’ Compensation Act, and the Secretary of Labor has adopted a version of the rule for benefit determinations under the Black Lung Benefits Act. One Court of Appeals, however, has rejected a treating physician rule for the assessment of claims of entitlement to veterans’ benefits for service-connected disabilities, and another has rejected such a rule for disability determinations under the Railroad Retirement Act of 1974. Furthermore, there appears to be no uniform practice regarding application of a treating physician rule under state workers’ compensation statutes.

Nord, 538 U.S. at 830 n.3 (citations omitted).

Although South Carolina has not expressly addressed whether the treating physician rule should be applied in EIP cases, case law suggests that it may be appropriate in some cases to accord greater weight to opinions of treating physicians. In James v. S.C. Employee Insurance Program, 371 S.C. 637, 640 S.E.2d 474 (Ct. App. 2006), the South Carolina Court of Appeals upheld the circuit court’s determination[6] of coverage for a medical device known as a Dynamic Orthotic Cranioplasty (“DOC”) Band to correct a claimant’s child’s conditions of plagiocephaly (assymetrical head shape) and torticollis (twisted neck syndrome). In that case, EIP based its denial upon the identical Plan exclusionary language that it relies upon here, finding that the DOC Band treatment was for cosmetic purposes and not medically necessary. The Court of Appeals found that EIP erred in denying coverage, emphasizing the fact that “the only physician who personally examined and treated the [patient] stated unequivocally that the treatment was medically necessary.” James, 371 S.C. at 646, 640 S.E.2d at 479.

More recently, by contrast, the Court of Appeals implicitly gave no particular deference to the treating physicians of a claimant seeking long-term disability benefits in Wilson v. State Budget and Control Board Employee Insurance Program, 374 S.C. 300, 648 S.E.2d 310 (Ct. App. 2007). In that case, Wilson applied for long-term disability benefits from EIP based upon injuries to her back and knee. Wilson claimed she was unable to continue performing her job duties, which required “light to sedentary work.” Wilson, 374 S.C. at 305, 648 S.E.2d at 313. The record in Wilson included opinions from six physicians: three treating physicians, including a family doctor, a radiologist, and a neurologist; another neurologist who examined Wilson’s records upon referral from her treating family doctor; an internist who provided an opinion for EIP’s third-party insurer; and finally, an independent surgeon who examined Wilson during the pendency of her appeal to the circuit court. This examination was conducted at the court’s suggestion and with the agreement of the parties.

The evidence in the record as to whether Wilson was disabled clearly diverged. The tests performed by two of her treating physicians revealed “no abnormalities.” Wilson, 374 S.C. at 305, 648 S.E.2d at 313. Although the opinions of the third-party insurer’s expert and that of Wilson’s treating neurologist flatly contradicted each other, the Court of Appeals noted that “both parties consented to allowing Dr. Johnson to perform an independent medical examination of Wilson for the circuit court’s benefit. Dr. Johnson’s opinion reaffirmed the opinion of [EIP] that Wilson was capable of performing light work.” Id. at 305, 648 S.E.2d at 313. Accordingly, the Court of Appeals found that EIP’s determination was supported by substantial evidence. Notably, the independent expert retained at the circuit court’s behest personally examined Wilson.

Reading Wilson and James together, it is apparent that South Carolina has not adopted a rule of per se deference to the opinions of treating physicians; rather, the amount of deference that should be given to a treating physician’s opinion depends on the evidence and issue presented in a particular case. Accordingly, whether to accord more weight to the opinions of treating physicians than to that of some other medical expert must be determined on a case-by-case basis.[7] On appeal, the ALC must review EIP’s determination regarding the medical experts within the parameters of § 1-23-380(A)(5) requiring the evidence, viewed in light of the record as a whole, to be reliable, probative, and substantial.

  1. Evidence Presented to EIP

Under the facts of this case, the court finds that EIP erred in accepting the opinions of the non-examining physicians over those of Grier’s treating physicians. The issue of coverage for Grier’s abdominoplasty depended on whether her particular health situation necessitated the surgery. This determination was contingent on a physical examination of Grier. As in James, the only physicians who personally examined Grier and treated her medical problems agreed that the abdominoplasty was medically necessary.

In denying coverage, EIP relied on the opinion of Dr. Jordan, the reviewer for BCBS, EIP’s third-party administrator; the opinions of Drs. Rothenberg and Wheatley, two contract physicians employed to conduct independent reviews based on medical records; and the notes of Drs. Davis and Bunch, two of Grier’s treating physicians.

Dr. Jordan is not a general or plastic surgeon; rather, although he is the claims reviewer for BCBS, he is a pediatrician by training. Dr. Jordan stated: “In my experience, individuals who have had abdominal distention or abdominal protrusion due to a diastasis recti do not have discomfort, but rather are unhappy with the protuberance of their abdomen. Any discomfort that Mrs. Grier may have experienced was, in my opinion, most likely due to the presence of the umbilical hernia . . . .” (R. at 126) (Letter from Dr. Ashby Jordan to Deborah Tapp, dated Dec. 7, 2006). The implication of Dr. Jordan’s opinion is that because abdominoplasties are generally cosmetic, Grier’s abdominoplasty likely is cosmetic as well. Such an opinion is not probative as to the issue at hand: whether the procedure was medically necessary for Grier. His opinion holds even less weight due to the fact that he has no personal knowledge of Grier’s condition because he did not physically examine Grier. See James v. S.C. Employee Ins. Program, 371 S.C. 637, 640 S.E.2d 474 (Ct. App. 2006) (emphasizing that “the only physician who personally examined and treated the [patient] stated unequivocally that the treatment was medically necessary”).

Dr. Rothenberg, the first outside physician from National Medical Review, inaccurately surmised that Grier might not even have a hernia. (See R. at 201). This calls his overall opinion into question because the hernia repair was not an issue; EIP gave pre-authorization for the hernia repair. Rothenberg goes on to state that an abdominoplasty “is generally not a covered medical benefit.” Id. Thus, like Dr. Jordan, Rothenberg appears to be opining as to insurance coverage generally, rather than the medical necessity of the procedure for Grier. In essence, Rothenberg, like Dr. Jordan, concludes that because most abdominoplasties are not covered, Grier’s abdominoplasty should not be covered. Rothenberg did not physically examine Grier, and his letter does not appear to evaluate Grier’s specific condition.

Dr. Wheatley, the second National Medical Review physician, summarily dismisses the idea that Grier’s abdominoplasty was medically necessary by assuming, like Dr. Jordan, that Grier’s abdominal pain “was most likely related to her umbilical hernia.” (R. at 244). Without a physical examination, Wheatley’s opinion that the source of Grier’s pain was the hernia rather than as a result of a functional problem related to her abdominal wall is objectively unreliable. It is certainly not entitled to greater weight than Grier’s own treating physicians’ opinion as to the source of Grier’s pain. Furthermore, Wheatley’s conclusion, adopted by EIP, that the procedure was cosmetic because some of the medical records indicated that Grier was concerned about her appearance misses the mark; Grier’s own opinions regarding the procedure are not probative with regard to the issue of whether her abdominoplasty was a medical necessity.[8] See, e.g., Jackson Manor Nursing Home v. Ortiz, 606 So.2d 422, 426 (Fla. Dist. Ct. App. 1992) (stating that “lay testimony cannot be used in lieu of medical evidence to establish the causal relationship between an injury and conditions and symptoms that are not readily observable,” although “lay testimony is of probative value in establishing the sequence of events, the actual ability or inability of a claimant to perform work, pain, and similar factors within the actual sensory experience of the claimant”); Garcia v. McGuinness, 2007 WL 660214, at *2 (E.D. Cal. 2007) (slip op.) (“Although plaintiff may offer his lay opinion as to the symptoms he is experiencing (e.g., pain, etc.), plaintiff may not offer his opinion as to medical necessity of medication or the appropriate treatment.”); Corsetti v. Cal. Dep’t of Corr., 2001 WL 253216, at *5 (N.D. Cal. 2001) (unpublished) (“[Plaintiff’s] own opinion as to the appropriate course of care does not create a triable issue of fact because he has not shown he has any medical training or expertise upon which to base such an opinion and it is not common knowledge that [the requested procedure] is appropriate in a case such as [Plaintiff’s].”).

Viewing the record as a whole, the cursory conclusions and (in one case) inaccurate assumptions of Drs. Jordan, Rothenberg, and Wheatley cannot constitute substantial evidence supporting a denial of coverage in the face of the assertions of Grier’s team of treating physicians. Her gynecologist, Dr. Postles, observed that Grier “underwent C-section in February of this year for a term twin gestation and complains of increasing pain in the abdominal wall. Examination shows an umbilical hernia and marked diastasis.” (R. at 169) (emphasis added). Dr. Bunch, the general surgeon, stated that hernia repair alone would not resolve all of Grier’s medical problems; an abdominoplasty would be necessary to alleviate the skin problems she would have after a simple hernia repair. (See R. at 168) (“[S]imple repair of her ventral hernia is going to leave her with significant problems with her skin, and an abdominoplasty would be indicated . . . .”); cf. James at 647-48 (“The position of the treating physician was that treatment would prevent the development of these problems . . . .”). He further asserted that the procedure was medically necessary because Grier’s “abdominal wall is so attenuated.” (R. at 145). Similarly, Dr. Davis stated that Grier consistently complained of

pain, irritation, and difficulties relating to her post delivery abdomen. Over the course of time she was able to reduce her size considerably but she never had any diminution of her symptoms. She had significant skin changes throughout the lower abdomen and rectus diastasis. The skin was covered in thick hyperpigmented skin that had worsened over time. Her inability to maintain the integrity of the abdominal wall continued to be a physical problem in her active lifestyle. Mrs. Grier had abdominal distention, pain, and discomfort that increased with any exertion.

Mrs. Grier’s surgery did not only correct for redundant skin, she had correction of her diastasis and the severely hyperpigmented skin changes. While her hernia was a component of her physical difficulties it was not an isolated problem. . . .

(See R. at 133) (emphasis added).

Respondent’s contention that the record merely shows that there are conflicting medical expert opinions about whether or not the procedure is cosmetic fails to properly consider the relevant data. This is not a typical “battle of the experts” case. Cf. Wilson, 374 S.C. at 305, 648 S.E.2d at 313 (affirming EIP’s denial of coverage where opinions of multiple examining physicians conflicted and medical records were inconsistent). Drs. Bunch and Davis, who both personally examined and treated Grier, were objectively in a better position to state whether the procedure was medically necessary to alleviate the full spectrum of Grier’s abdominal problems. Here, unlike the Wilson case where the examining physicians diverged as to their opinions, the doctors who personally examined Grier all agreed the abdominoplasty was medically necessary. See James, 371 S.C. at 646, 640 S.E.2d at 479 (emphasizing that “the only physician who personally examined and treated the [patient] stated unequivocally that the treatment was medically necessary”).

The facts here are strikingly similar to those in James, where the Court of Appeals found that EIP’s denial of coverage lacked substantial evidence where EIP relied upon “independent” medical opinions as to the cosmetic nature of the DOC band treatment and rejected the treating physician’s opinion that, even though the treatment would also improve the patient’s appearance, the procedure was medically necessary based upon his examination and knowledge of the patient. The James court agreed with the circuit court’s rejection of “opinions of non-treating physicians from other states who never examined the [patient.]” James, 371 S.C. at 643 n.7, 640 S.E.2d at 477 n.7. The Court of Appeals noted, “The peer review physicians engaged by Blue Cross reviewed portions of [the patient’s] medical records, but they did not personally examine her prior to making their recommendation to deny coverage.” Id.

Here, just as in James, only Grier’s treating physicians, Drs. Bunch, Postles, and Davis, actually examined her. Moreover, unlike the examining physicians in Wilson, all of Grier’s examining physicians who expressed an opinion[9] agreed the procedure at issue was medically necessary and not primarily cosmetic. Those physicians, like the treating physician in James, believed that correction of the problem was necessary to avoid future functional problems. (See R. at 133, 145, 168). Here, EIP—just as it did in James—relied upon non-treating physicians who never examined the patient. (See R. at 88) (EIP Appeals Committee Final Determination Letter). Accordingly, the court finds, as did the Court of Appeals in James, that “reasonable minds would conclude treatment in this case is not primarily cosmetic, but rather, it does affect the functioning of the patient and is medically necessary.” James, 371 S.C. at 648, 640 S.E.2d at 479.


V. CONCLUSION AND ORDER

EIP denied Grier’s pre-authorization for an abdominoplasty based on the opinions of physicians who never physically examined Grier and who determined that the procedure was cosmetic because a majority of abdominoplasties are performed for cosmetic reasons and because Grier had expressed concern with her appearance. It improperly rejected the opinions of her treating physicians, who were in agreement that the procedure was not primarily cosmetic and that the abdominoplasty was medically necessary to treat the full range of Grier’s abdominal problems that were causing her pain and limiting her physical activity, as well as to prevent future skin problems. Accordingly, EIP’s denial was arbitrary, an abuse of discretion, and unsupported by the substantial evidence in the record viewed as a whole. It is therefore

ORDERED that EIP’s denial of coverage for Grier’s abdominoplasty is reversed.

IT IS SO ORDERED.

______________________________

PAIGE J. GOSSETT

Administrative Law Judge

March 13, 2008

Columbia, South Carolina



[1] Abdominoplasty is defined as “[p]lastic surgery on the abdomen.” Taber’s Cyclopedic Medical Dictionary 4 (20 ed. 2001) (“hereinafter “Taber’s”).

[2] An umbilical hernia is a “displacement of body tissue through an opening or defect” that “occur[s] at the navel.” Taber’s at 986.

[3] Diastatis recti is defined as “separation of the two halves of the rectus abdominis muscles in the midline at the linea alba.” Taber’s at 591.

[4] EIP approved coverage for the hernia operation. Thus, the only issue before this court is regarding the abdominoplasty, which was performed contemporaneously with the hernia repair.

[5] Pursuant to 2006 S.C. Act No. 387, the ALC’s review of EIP determinations is appellate under the standard of review set forth in § 1-23-380(A)(5). Unlike most cases that this court reviews in its appellate capacity, however, no evidentiary hearing takes place before the agency. The EIP Appeals Committee conducts a paper review of EIP’s initial coverage determination, which is also made without an evidentiary hearing.

[6] James arose prior the enactment of 2006 S.C. Act No. 387, which changed the appeals process for Employee Insurance Program determinations, providing for appellate review by the ALC rather than the circuit court.

[7] Typically, when the ALC reviews an administrative agency’s decision in its appellate capacity it is not permitted to re-evaluate the credibility of a witness. See, e.g., Milliken & Co. v. S.C. Employment Sec. Comm’n, 321 S.C. 349, 350, 468 S.E.2d 638, 639 (1996); Dixon v. Dixon, 336 S.C. 260, 263, 519 S.E.2d 357, 358 (Ct. App. 1999); Armstrong v. Union Carbide, 308 S.C. 235, 237, 417 S.E.2d 597, 599 (Ct. App. 1992). The trier of fact is in the best position to determine a witness’s credibility, based on his observation of the witness’s live testimony. Dixon, 336 S.C. at 263, 519 S.E.2d at 358 (“Because the appellate court lacks the opportunity for direct observation of witnesses, it should accord great deference to trial court findings where matters of credibility are involved.”). However, the reasoning behind that rule does not apply here because EIP does not conduct a contested case hearing with live witness testimony, but rather makes its determinations based solely on a paper review. Thus, EIP is not in any better position to evaluate credibility.

[8] Under the Plan, a service or supply is medically necessary when that service or supply:

A. Is required to identify or treat an illness or injury; and

B. Is prescribed or ordered by a Physician; and

C. Is consistent with the Covered Person’s illness, injury, or condition, and in accordance with proper medical and surgical practices prevailing in the medical specialty or field of medicine at the time rendered; and

D. Is required for reasons other than the convenience of the patient. The fact that a service is prescribed by a Physician does not necessarily mean that such service is Medically Necessary.

(R. at 11) (Plan definitions) (emphasis added).

[9] Although Dr. Postles did not opine as the medical necessity of the abdominoplasty for Grier, his records of Grier’s symptoms and his diagnosis of her abdominal problems are fully consistent with those of Drs. Bunch and Davis. Cf. Wilson, 374 S.C. at 303, 648 S.E.2d at 311.


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