Wood, Floyd v. Thompson, Tommy G. ( 2001 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-2711
Floyd Wood,
Plaintiff-Appellant,
v.
Tommy G. Thompson,*/ as Secretary
of the Department of Health
and Human Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 99-C-760-S--John C. Shabaz, Chief Judge.
Argued November 16, 2000--Decided April 12,
2001
Before Cudahy, Coffey, and Evans, Circuit
Judges.
Cudahy, Circuit Judge. This case is
almost as hard as pulling the teeth of
Floyd Wood, who lost a final decision of
the United States Department of Health
and Human Services Secretary Tommy
Thompson that the extraction of his
diseased teeth was not reimbursable under
Part B of the Medicare program, 42 U.S.C.
sec. 1395 et seq. We now affirm the
district court’s decision to uphold the
Secretary’s ruling.
I.
Wood, an enrollee in the Medicare
program, needed a heart valve
replacement. At the time his physician
determined the need for this procedure,
Wood had severe infection in the tissue
supporting his teeth. His
cardiologistdetermined that Wood’s severe
periodontal disease presented a
significant risk of bacterial infection
to his artificial heart valve after
implantation of the device. Because of
his poor dental health--and the
possibility of infection--Wood’s doctor
recommended that he undergo dental
extractions prior to his surgery. On June
6, 1994, a dentist removed 14 of Wood’s
diseased teeth and recontoured his upper
and lower jaw (a procedure designed to
prepare the tooth sockets for future
denture construction). On September 13,
Wood was admitted to a St. Paul,
Minnesota hospital to undergo the heart
valve replacement surgery. The doctor who
performed the operation, Lyle Joyce, said
he would not have performed the procedure
if Wood had not undergone the tooth
removal prior to surgery because of the
risk of bacterial infection.
After removing Wood’s teeth, Wood’s
dentist submitted a $1,156 claim for
dental services to MetraHealth Companies,
a Medicare carrier,/1 which denied
coverage of the services. Wood appealed
this determination to a Medicare Part B
hearing officer, who upheld the carrier’s
decision. Wood then appealed to a social
security administrative law judge (ALJ),
who affirmed the hearing officer’s
determination. The ALJ decided that Wood
was not qualified for coverage because
services in connection with the treatment
of teeth were not covered under Part B of
the Medicare Act, Title XVIII of the
Social Security Act, 79 Stat. 290, as
amended, 42 U.S.C. sec. 1395 et seq.
Congress, the ALJ concluded, specifically
excluded dental care from coverage under
Medicare. See Social Security Act sec.
1862(a), 42 U.S.C. sec. 1395y(a). The ALJ
did identify three exceptions to this
exclusion: dental care in preparation for
radiation of the jaw; a covered medical
procedure performed by the same physician
doing the dental work; and inpatient
dental examinations conducted in
preparation for kidney transplant
surgery. While the ALJ did not dispute
that Wood’s extractions were medically
necessary, he concluded that this
procedure did not fall within one of the
exceptions to the blanket denial of
dental coverage under Medicare. Wood
requested review of the ALJ’s decision by
the Medicare Appeals Council, but the
Council declined to review the case,
stating that the ALJ’s decision would
stand as the final decision of the
Secretary.
Because the Medicare Appeals Council
adopted the decision of the ALJ, that
decision stands as the final decision of
the Secretary. Judicial review of such
final decisions lies in the appropriate
district court under 42 U.S.C. sec.
405(g). Wood thus appealed to the
District Court for the Western District
of Wisconsin, which affirmed. We review
the ALJ’s decision with the deference due
to final decisions of agencies./2 Under
42 U.S.C. sec. 405(g), "findings of the
Secretary . . . if supported by
substantial evidence, shall be
conclusive, and where a claim has been
denied by the Secretary . . . the court
shall review only the question of
conformity with [the Secretary’s]
regulations and the validity of such
regulations." See also Johnson v.
Heckler, 741 F.2d 948, 952 (7th Cir.
1984). "Substantial evidence" is "more
than a scintilla" but less than a
preponderance of the evidence, and is
"such relevant evidence as a reasonable
mind might accept as adequate to support
a conclusion." Kapusta v. Sullivan, 900
F.2d 94, 96 (7th Cir. 1990) (quoting
Richardson v. Perales, 402 U.S. 389, 401
(1971)).
We may also set aside the Secretary’s
denial of coverage if the denial was
based on legal error. See Stevenson v.
Chater, 105 F.3d 1151, 1153 (7th Cir.
1997). When interpreting a statute, we
first determine whether the intent of
Congress is unambiguous. See Chevron
U.S.A., Inc. v. Natural Resource Defense
Council, Inc., 467 U.S. 837, 842 (1984).
If the meaning of the statute is clear,
no deference is due an agency’s
interpretation. If the meaning of the
statute is ambiguous, an agency’s
interpretation will be deferred to if it
is reasonable. See id. at 844. If the
agency’s interpretation conflicts with
its prior interpretation, the current
interpretation is "’entitled to
considerably less deference’ than a
consistently held view." INS v. Cardoza-
Fonseca, 480 U.S. 421, 446 n.30 (1987)
(quoting Watt v. Alaska, 451 U.S. 259,
273 (1981)).
II.
Title XVIII of the Social Security Act,
42 U.S.C. sec. 1395 et seq., established
Medicare as a federally funded and admin
istered health insurance program for
eligible persons who (1) are 65 or older
and entitled to social security
retirement benefits; (2) are disabled and
entitled to social security disability
benefits; or (3) have end stage renal
(kidney) disease. See 42 U.S.C. sec.
1395c. The Secretary of Health and Human
Services administers the Medicare program
through the Health Care Financing
Administration (HCFA), which enters into
agreements with private contractors to
administer payments of funds to hospitals
and providers for covered services on
behalf of eligible beneficiaries. See 42
U.S.C. sec.sec. 1395h, 1395u(a).
The Medicare program is divided into
three major components. Part A, the
hospital insurance benefits program,
provides coverage for inpatient hospital
care, post-hospital care in skilled
nursing facilities and post-hospital home
care services. See 42 U.S.C. sec.sec.
1395c to 1395i-5. Part B generally
provides coverage for outpatient
physician services, physical and
occupational therapy services, outpatient
rehabilitation facility services, and
medical equipment and services provided
at rural health clinics and qualified
health centers. See 42 U.S.C. sec.sec.
1395j to 1395w-4, 1395x(s); 42 C.F.R.
sec. 410.3. Part B does not provide
reimbursement for dental services.
Expenses excluded from Part B coverage
include those that are incurred:
in connection with the care, treatment,
filling, removal, or replacement of teeth
or structures directly supporting teeth,
except that payment may be made under
Part A of this subchapter in the case of
inpatient hospital services . . . .
42 U.S.C. sec. 1395y(a)(13). Part C is a
new component of the Medicare statute,
and the parties agree that it has no
bearing on this case. See 42 U.S.C. sec.
1395w-21 et seq. Part B is the only
section of the statute under which Wood’s
procedure could arguably fall, because
the extraction did not involve inpatient
hospital care. However, as noted, the
statute clearly excludes dental
procedures from coverage under Part B.
There is only one exception to the
exclusion of dental services under Part
B. Section 2136 of the Medicare Carriers
Manual/3 states that otherwise
noncovered services performed by a
dentist "as incident to and as an
integral part of a covered procedure or
service" will be covered by Medicare.
Medicare Carriers Manual sec. 2136. Both
the dental and the covered procedure
under this provision must be furnished by
the same provider. An example of this,
provided in the manual, is when the
reconstruction of a ridge, which is
normally a non-covered procedure, is
performed "as a result of and at the same
time as the surgical removal of a tumor
(for other than dental purposes)." See
id. In such a situation, "the totality of
surgical procedures would be a covered
service." See id. Citing this--the "same
physician rule"--the ALJ concluded that
the case here neither fits within the
rule’s purview nor falls within any
corollaries to that rule.
There are two corollaries to the "same
physician rule," under which dental
procedures will be covered under Part B
even if the covered procedure is
performed by someone other than a
dentist. The first is outlined in sec.
2136 of the Medicare Carriers Manual: the
extraction of teeth to prepare the jaw
for radiation treatment of abnormal jaw
growths (neoplastic disease). The second
corollary allows for Medicare coverage of
an inpatient dental examination performed
"as part of a comprehensive workup prior
to renal [kidney] transplant surgery."
Medicare Coverage Issues Manual sec. 50-
26./4 The ALJ concluded that Wood’s
procedure fit within neither of these
corollaries, and that therefore Wood
could not escape the exclusion for dental
services.
III.
On appeal, Wood advances a three-step
argument: (1) the dental services
exclusion in the statute is ambiguous;
(2) the HCFA’s interpretation of the
statute is unreasonable; and (3) the
legislative history is inconsistent with
the over-broad interpretation of the
exclusion and HCFA’s interpretation of
the other medically necessary exceptions
to it.
In reviewing an agency’s interpretation
of a statute, we first determine whether
that statute is ambiguous. See Chevron,
467 U.S. at 842; United Transp. Union-
Ill. Legislative Bd. v. Surface Transp.
Bd., 183 F.3d 606, 613 (7th Cir. 1999).
The Secretary appears to concede that the
statute is ambiguous on this point: he
begins by arguing for the reasonableness
of his articulated exceptions and the
exclusion of Wood’s procedure. As
described above, the statute delineates
the type of dental services that can be
covered under Part A, and does not
indicate any exceptions to the exclusion
from coverage under Part B./5 Because
there are exceptions, Wood reasons, the
statute must be ambiguous and the
Secretary does not appear to view the
exclusion as absolute. This is not an
entirely outlandish argument. That a
statute has several articulated
exceptions does not necessarily mean it
is ambiguous, but it does suggest the
need for a possible concession on the
part of the administrator of the statute
as to ambiguity. The Secretary argues
that the HCFA has interpreted the
Medicare Act and its legislative history
to allow for coverage of dental
procedures in a few limited
circumstances--and has not felt free to
make further exceptions to the exclusion,
even if it believes the added exceptions
would not undermine Congress’ goals. The
Secretary fails to explain why the
existing exceptions, and not others,
serve any express intent of Congress to
exclude procedures such as Wood’s. We
thus consider the statutory exclusion of
dental coverage to be ambiguous, and
consider whether the Secretary’s
interpretation of the statute in the
present case is reasonable.
IV.
Wood argues that the HCFA’s
interpretation of the statute is
unreasonable, and attempts to show that
the Secretary’s proposed list of
exceptions to the Part B exclusion is not
exhaustive. This argument is two-pronged:
first, he argues that the HCFA’s current
interpretation of the statute is
inconsistent with prior interpretations,
and second, that the rationale behind the
other exceptions applies here. Wood
claims the exclusion of procedures like
his is inconsistent with prior
interpretations because those interpreta
tions are premised on the idea that life-
saving procedures are or should be
covered by Medicare. Because dental
services received prior to a kidney
transplant are covered under an
administrative interpretation of the Act,
see National Coverage Decision sec. 50-
26, Medicare Coverage Issues Manual, Wood
believes that coverage for dental
services prior to a heart valve
replacement is a "logical extension." He
reasons that the rationale of the kidney
transplant exception would apply in his
case as well:
[T]he [dental] examination is for the
identification, prior to a complex
surgical procedure, of existing medical
problems where the increased possibility
of infection would not only reduce the
chances for successful surgery but would
also expose the patient to additional
risks in undergoing such surgery.
National Coverage Decision sec. 50-26,
Medicare Coverage Issues Manual. But, as
the Secretary notes, the kidney
transplant exception applies to inpatient
dental examinations, a significantly
worded application, considering that
inpatient hospital services in connection
with dental care are explicitly covered
by the statute under Medicare Part A.
Further, the Medicare Act itself singles
out end-stage kidney disease for special
treatment: it is the only disease that
explicitly entitles an individual to
Medicare coverage. See 42 U.S.C. sec.
1395c./6 While this alone may not be
sufficient to justify the narrowness of
the sec. 50-26 exception, it does provide
some indication that an extension of it
to include heart valve surgery is not
what Congress intended. All medically
necessary procedures are not covered
under the Act. It is simply too long a
stretch to extend this exception for an
inpatient examination in connection with
renal transplant surgery to outpatient
treatment prior to heart valve surgery on
a rationale of the comparable complexity
and seriousness of the respective
surgeries. In addition, the renal disease
exception specifically applies to an
"examination," not to treatment.
The Secretary notes that while the HCFA
has outlined limited exceptions to the
general exclusion, each exception is
consistent with the language of the
Medicare Act and congressional intent.
The only statutorily explicit coverage of
services related to dental procedures
does not actually cover the dental
services at all; it merely
reimbursesproviders of inpatient hospital
services in connection with dental
procedures. Also, the corollary to the
"same physician rule" in Medicare
Carriers Manual sec. 2136 is for the
extraction of teeth to prepare the jaw
for radiation treatment of oral tumors.
The Secretary argues that the ALJ
reasonably limited this exception to its
facts. We agree. A possibly questionable
exception promulgated by the HCFA is no
argument that the exception should be
expandedfurther.
Section 2136 contains a reference to
another section that Wood argues
indicates an intent to extend coverage to
his kind of procedure. That section, sec.
2020.3 of the Medicare Carriers Manual,
indicates that Medicare Part B pays for
"otherwise covered" services furnished by
a doctor of dental surgery or dental
medicine if those services would be
covered as physicians’ services when
performed by a doctor of medicine. The
section indicates further that "otherwise
covered services" include "treatment of
oral infections and interpretations of
diagnostic X-ray examinations in
connection with covered services." But
the section goes on to note that "the
general exclusion of payment for dental
services has not been withdrawn." The
Secretary argues that interpreting this
provision in the way Wood suggests would
open the door to coverage of any
extraction performed by a dentist to
treat an infected tooth. He suggests, as
an alternative, that this section should
be interpreted to refer to "treatment of
oral infections using antibiotics," as
suggested in an Institute of Medicine
report. Institute of Medicine, Extending
Medicare Coverage to Preventive and Other
Services 63 (2000). This counter-argument
of the Secretary is only modestly
convincing. But, in the absence of more
specific support for Wood’s claim, we
cannot extend coverage to dental
procedures simply because they are
necessary for heart valve replacement
surgery.
Wood also attempts to find support in
the HCFA’s Rural Health Clinic and
Federally Qualified Health Centers
Manual. That manual defines coverage for
services offered at such facilities,
which provide services that can be
covered under Medicare Part B. See 42
U.S.C. sec. 1395k(a)(2)(D). The manual,
as Wood notes, has a provision nearly
identical to sec. 2136 of the Medicare
Carriers Manual, with a significant
exception:
A dental examination for patients
requiring certain complex surgical
procedures may be covered. To date, the
only identified procedures for which
dental examinations are covered are
kidney transplants and heart valve
replacements.
Rural Health Clinic and Federally
Qualified Health Centers manual sec. 442
(emphasis added). First, this provision
is not applicable to Wood, as he was not
treated at either a rural health clinic
or a federally qualified health center.
Second, this reference to heart valve
replacements indicates their specific
inclusion within the general exception to
the exclusion for examinations in
connection with surgical procedures.
While this reference lends some weight to
Wood’s argument, it appears in an
isolated corner of the administrative
provisions and is not strong enough to
prevail over the authority to the
contrary. And, again, the Manual
specifically covers an "examination," not
"treatment."
Wood also notes that, had the services
been provided after December 1, 1996 and
in Wisconsin, he would have been covered
under the Wisconsin Physicians Service’s
Local Medical Review Policy. He did not
rely on this policy in his arguments
before the ALJ or the Medicare Appeals
Council, and he has therefore waived this
argument. See Johnson v. Apfel, 189 F.3d
561, 562 (7th Cir. 1999). Even if the
argument had not been waived, this policy
would be of no use to Wood. It does
indeed state that Medicare covers dental
extractions due to infections prior to
heart valve replacement surgeries. See
Wisconsin Physicians Serv. Local Med.
Review Policy, DENT-002./7
Unfortunately, even on the assumption
that this plan was approved by the HCFA,
the WPS policy is not controlling
authority. The policy was adopted more
than two years after the dental services
in this case were provided--and they were
performed in Minnesota, not Wisconsin. In
addition, as the Secretary notes, local
medical review policies may not conflict
with national policy, and allowing Part B
coverage of dental extractions in
connection with procedures other than
radiation treatment conflicts with the
Medicare Act. Wood argues that the local
policy means that the HCFA approves of
coverage of procedures like his, but he
has presented no evidence that the HCFA
has approved the policy. Indeed, a report
by the Institute of Medicine--
commissioned by Congress to report on
certain aspects of Medicare coverage--
cites the WPS policy as an example of a
local policy that conflicts with national
coverage policy. Institute of Medicine,
Extending Medicare Coverage to Preventive
and Other Services 64-65 (2000).
Wood next contends that the rationale
behind the exceptions to the dental
exclusion for certain medically necessary
services should extend to the services
performed in this case. Because all the
exceptions appear to be aimed at dental
services that are medically necessary
under the circumstances, Wood reasons,
there is an implied intent to extend
coverage to all medically necessary
dental services. The common thread among
the narrow exceptions, Wood argues, is
the purpose to avoid creating "an
impediment to accessing covered
services." All the exceptions, he notes,
involve "dental services [that] are
medically necessary components of the
treatment of underlying medical
conditions." But the "common thread"
seems actually to be that the exceptions
involve dental services that are
requisite to performing a procedure
involving the mouth or jaw. The only
exception to this logic is the coverage
of an inpatient dental examination prior
to kidney transplant surgery./8 But,
the Secretary argues, this latter
exception is only the Secretary’s
reasonable interpretation of the Part A
coverage for inpatient hospital services
in connection with certain dental
procedures. Medicare Part A will cover
inpatient hospital services in connection
with dental services if the claimant has
an underlying medical condition that
requires hospitalization, or if the
severity of the dental service itself
requires hospitalization. See 42 U.S.C.
sec. 1395y(a)(12). The Secretary also
notes that the "underlying medical
condition" exception is applicable only
to claims for inpatient services--not
claims such as this one, brought under
Part B for outpatient dental work. See
id. We agree.
Finally, Wood argues that a decision of
a social security ALJ supports his
view./9 In that case, the claimant
needed to have a defibrillator implanted,
and was required to have his diseased
teeth removed prior to the surgery. The
ALJ held that the extractions were
covered because "the claimant’s dental
work would fall under an exception to the
dental services exclusion in the
regulations because the dental work was
required secondary to a severe heart
condition." App. at 49-54. Because of the
scanty record, the details of the case
are a mystery, but it appears that the
claimant had received inpatient dental
surgery, which would distinguish the
circumstances from those before us and
would justify a recovery under Part A. If
the ALJ awarded benefits under Part B, he
did so erroneously. Even if we knew
enough about the case to receive guidance
from it, the decision would not authorize
an exception adverse to HCFA policy. See
Friedrich v. Secretary of Health & Human
Serv., 894 F.2d 829, 835 (6th Cir. 1990)
(single decision of the Medicare Appeals
Council was "not significant" enough to
support the plaintiff’s argument that the
Secretary had not followed a consistent
policy for denying coverage); Homemakers
N. Shore, Inc. v. Bowen, 832 F.2d 408,
413 (7th Cir. 1987) ("’The Secretary’s
position’ is the position of the
Department as an entity, and the fact
that people in the chain of command have
expressed divergent views does not
diminish the effect of the agency’s
resolution of those disputes.")
(citations omitted).
The bottom line is that the statute is
clear, with clear exceptions, and an
argument based only on the rationale
supporting the exceptions, absent some
constitutional argument, cannot prevail.
As the Secretary repeatedly notes, not
all medically necessary services are
covered by Medicare, and the Medicare Act
specifically excludes dental coverage,
with a few narrowly defined exceptions.
Whether the case before us looks like one
of those exceptions or not (and the
Secretary argues persuasively that it
does not), we are not armed with power to
fashion a new exception:
We have held that "the enumeration of
specific exclusions from the operation of
a statute is an indication that the
statute should apply to all cases not
specifically excluded." . . . Hence we
are bound by the particular rules enacted
by Congress and are not free to carve out
our own exceptions merely because we
believe they would not undermine
Congress’ goals.
Central States Southeast & Southwest
Areas Pension Fund v. Bellmont Trucking
Co., 788 F.2d 428, 433 (7th Cir. 1986)
(quoting In re Cash Currency Exchange,
762 F.2d 542, 552 (7th Cir. 1985), cert.
denied, 474 U.S. 904 (1985)). When
Congress has chosen specific rules aimed
at a particular goal, "[a]ny rule of this
character will overshoot in some respects
and fall short in others . . . . Yet a
court may not convert a rule into a
general standard without reversing the
choice Congress made." United States v.
Medico Indus., Inc., 784 F.2d 840, 844
(7th Cir. 1986). The Secretary’s
interpretation is reasonable, and Wood
has failed to demonstrate that the denial
of coverage for his procedure was based
on an erroneous reading of the statute or
a misapplication of HCFA regulations.
Wood’s next effort is an argument that
the legislative history of the statute
supports his proposed interpretation. To
the contrary, the history supports the
Secretary’s view. Wood relies heavily on
a Senate report in which the Senate
Finance Committee discusses the exclusion
of coverage for routine dental services.
S. Rep. No. 89-404 (1965). But the
strongest support for Wood’s argument can
arguably support the Secretary’s
interpretation as well: "The committee
bill provides a specific exclusion of
routine dental care to make clear that
the services of dental surgeons covered
under the bill are restricted to complex
surgical procedures." Id. While Wood’s
procedure probably does not qualify as
"routine dental care," it does not
qualify as a "complex surgical procedure"
either. Later in the report, the
committee notes that "routine dental
treatment--filling, removal or
replacement of teeth or treatment of
structures directly supporting teeth--
would not be covered." Id. This evidence
of congressional intent arguably supports
the Secretary’s view, and certainly is
not authority for us to fashion an
additional exception out of thin air.
V.
Wood finally argues that the Secretary’s
decision was not based on substantial
evidence. We may indeed set aside the
Secretary’s decision on a matter of
Medicare payment if it is not based on
substantial evidence. See Stevenson v.
Chater, 105 F.3d 1151, 1153 (7th Cir.
1997). Wood’s argument centers on the
"overwhelming evidence" that the dental
services he received were a medically
necessary precursor to a heart valve
replacement surgery. That these services
were medically necessary does not appear
to be disputed. The dispute in this case
is whether the Secretary properly denied
coverage for these services, despite the
fact that they were medically necessary.
Thus, this argument is misplaced.
VI.
Wood should lobby Congress or the
Secretary; the judicial branch can be of
no use to him. For the foregoing reasons,
we AFFIRM.
/* Pursuant to Fed. R. App. P. 43(c), Tommy Thompson
is substituted as a party respondent for Donna E.
Shalala.
/1 Under Part B of the statute, "carriers" are
private contractors that administer payments of
funds to providers on behalf of eligible Medicare
beneficiaries for services rendered. See 42
U.S.C. sec.sec. 1395h, 1395u(a).
/2 Wood argues that, under our decision in Groves v.
Apfel, the ALJ findings must be reviewed de novo.
See 148 F.3d 809, 811 (7th Cir. 1998). He misun-
derstands that case; we held in Groves that our
review of a district court’s decision reversing
an ALJ decision--not our review of the ALJ deci-
sion itself--is de novo. See id./3 The Secretary has the authority to issue inter-
pretive rules and regulations under the statute.
See 42 U.S.C. sec. 1395ff(a). This takes the form
of regulations, see 42 C.F.R. pt. 411 et seq.,
and manuals. The manual that provides guidance as
to Part B coverage is the Medicare Carriers
Manual.
/4 The second exception is found in the Medicare
Coverage Issues Manual, under which the HCFA
issues national coverage decisions and policy
statements on Medicare coverage for specificmedi-
cal services, procedures or devices. See 42
U.S.C. sec. 1395hh. National coverage decisions
define coverage of specific procedures and are
not general coverage policies.
/5 Medicare Part A will cover inpatient hospital
services in connection with dental services if
the individual has an underlying medical condi-
tion that requires hospitalization, or if the
severity of the dental service itself requires
hospitalization. See 42 U.S.C. sec. 1395y(a)(12).
/6 Section 1395c provides that the Medicare program
provides coverage to (1) individuals who are age
65 or over and are eligible for social security
retirement benefits; (2) individuals who are
disabled and entitled to social security disabil-
ity benefits; and "(3) certain individuals who
did not meet the conditions specified in either
clause (1) or (2) but who are medically deter-
mined to have end stage renal disease." (Emphasis
added.)
/7 A copy of this policy can be found in the Appell-
ant’s appendix to his brief, at pages 38-43.
/8 While the exception notes that such a procedure
would be covered under Part A if performed by a
dentist on hospital staff, or Part B if performed
by a physician, it is always applicable only to
inpatient examinations.
/9 We cannot locate this decision. Both parties cite
to the appellant’s appendix as the only source
for this decision. App. at 49-54. The party
names, docket number and other pertinent informa-
tion have been redacted from this document.
Because we conclude that the decision is not
dispositive and we give it slight weight in our
decision today, we will overlook this obvious
problem.