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Fecteau v. State Employee Health Commission
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MAINE SUPREME JUDICIAL COURT				Reporter of Decisions
Decision:  1997 ME 36
Docket:  KEN-96-420
Submitted on briefs February 10, 1997
Decided March 4, 1997

Panel:  WATHEN, C.J., and  GLASSMAN, CLIFFORD, RUDMAN, DANA, and LIPEZ, JJ.
	
ROSEMARY L. FECTEAU v. STATE EMPLOYEE HEALTH COMMISSION


CLIFFORD, J.

	[¶1]  Rosemary Fecteau, widow of Jack Fecteau, appeals from the
judgment entered in the Superior Court (Kennebec County, Calkins, J.)
affirming the State Employee Health Commission's determination that costs
incurred for the removal of her late husband's amalgam fillings were not
covered by his employee insurance with Blue Cross/Blue Shield of Maine
(Blue Cross).  Fecteau contends that the commission erred in its
determination that coverage did not exist for the removal of the fillings.  We
affirm the judgment.
	[¶2]  Jack Fecteau was employed by the Maine Department of Human
Services and participated in the State Employees Health Insurance Program.
Pursuant to 5 M.R.S.A. § 285 (1989 & Supp. 1996), Blue Cross contracted
with the Commission to provide group medical coverage to State employees. 
Jack was diagnosed with interstitial lung disease.  In 1994, he was advised
by Dietrich K. Klinghardt, M.D., that a contributing cause of his disease was
an allergic response to mercury in his amalgam fillings and recommended
that Jack's amalgam fillings be removed.  Jack was advised by Blue Cross
that the removal of the fillings would not be covered pursuant to the
contract.  Nonetheless, Jack had the fillings removed on May 16, 1994. 
	[¶3]  He appealed the Blue Cross denial of coverage to the State
Employee Health Commission.  Following a hearing, an appeals panel
concluded that the denial of coverage was appropriate.  The panel found that
removal of "[a]malgam fillings is not a covered service.  Blue Cross also
referred to various medical literature.  No scientific basis has been
established to confirm that removal of amalgam fillings is essential to health
of patient."  Jack Fecteau died on December 28, 1994.  Rosemary Fecteau,
acting on behalf of Jack Fecteau's estate, appealed to the full Commission. 
She argued that the mercury in the amalgam fillings was toxic and that there
were benefits derived from their removal.  The full Commission held a
hearing on May 23, 1995, and on July 13, 1995, affirmed the decision of the
appeals panel.  Following the denial of Fecteau's motion for reconsideration,
she filed a petition for review in the Superior Court pursuant to M.R. Civ. P.
80C and 5 M.R.S.A. §§ 11001-11008 (1989 & Supp. 1996).  The court
affirmed the Commission's decision, and this appeal followed.
	[¶4]  Fecteau contends that the Blue Cross contract covered the
removal of Jack's fillings.  In addition, she argues that the removal was a
"medical necessity" which also qualified for coverage.  She cites authorities
to support the proposition that amalgam fillings are toxic, that Jack was
allergic to them, and thus, a medical necessity existed.  Finally, Fecteau
suggests that the removal constituted treatment for an accidental injury to
natural teeth.  
	[¶5]  "When, as here, the Superior Court acts as an intermediate
appellate court and reviews an agency decision, we review directly the
decision of the agency." Maine Auto Test Equip. Co. Inc. v. Maine
Unemployment Ins. Comm'n, 679 A.2d 79, 80 (Me. 1996) (citations
omitted).  Our review of the agency decision is for "abuse of discretion,
errors of law, or findings not supported by the evidence." Centamore v.
Department of Human Services, 664 A.2d 369, 370 (Me. 1995) (citing
International Paper Co. v. Board of Envtl. Protection, 629 A.2d 597, 599 (Me.
1993); 5 M.R.S.A. § 11007 (4)(C) (1989)).  "The agency's factual determina-
tions must be upheld unless shown to be clearly erroneous."  Id. at 371
(citations omitted).  
	[¶6]  Fecteau's contentions relate to several portions of the Blue Cross
certificate, part of which provides:

Dental Services We do not provide benefits for orthognathic
surgery, dentistry, dental surgery, or all other services by
dentists or oral surgeons unless specifically listed as covered in
the Teeth and Jaw provision.
	
"Dental service" is defined as a "service provided in connection with the
care, treatment, filling, removal, or replacement of teeth or structures
directly supporting the teeth."  Covered procedures relating to the teeth
and jaw do not include fillings.  Although one section does provide benefits
for "[t]reating accidental injury to natural teeth," another part of the
certificate states that Blue Cross "may in certain extraordinary
circumstances provide benefits for alternate care that is not listed as a
covered service in this contract.  We will make our decision based on
medical necessity and the cost-effectiveness of the alternate treatment." 
	[¶7]  Based on these contract provisions, the Commission did not err
in its decision.  The contract on its face clearly does not provide for the
removal of amalgam fillings.  In addition, the separate provision providing
for the possibility of the provision of benefits for alternate care in
extraordinary situations does not apply in this case.  The import of the
provision is that in extraordinary situations based on medical necessity, the
insurer may choose to provide benefits even when they are not listed as
covered services.  This is done, however, at their discretion.  Additionally,
the medical evidence, at best, was conflicting as to whether amalgam fillings
are injurious to an individual.{1}  Jack had no right to coverage.  Moreover,
neither the filling nor the removal of the amalgam fillings is an accidental
injury to the natural teeth.
	The entry is:
				Judgment affirmed.

For plaintiff: Rosemary L. Fecteau 29 West Pownal Road North Yarmouth, ME 04097 Attorneys for defendant: Andrew Ketterer, Attorney General H. Cabanne Howard, Asst. Atty. Gen. 6 State House Station Augusta, ME 04333-0006
FOOTNOTES******************************** {1} The American Dental Association statement on Dental Amalgam states that amalgam is "a safe and effective restorative material and [it] sees no cause for public concern about either existing or future amalgam restorations."