Aрpeal by defendant from a judgment of the Ramsey County District Court and from an order denying a motion for amended findings of fact, conclusions of law, and order for judgment. The district court determined that Helen S. Olson, 1 plaintiff’s decedent, was in need of and had received “skilled nursing care” during her stay in several nursing homes and that she was entitled to coverage under defendant’s health insurance policy which contained an exclusion for “custodial care.” We affirm.
During the period involved in the present lawsuit, Ms. Olson was covered under аn insurance contract with defendant for supplemental catastrophic medical services. 2 Part VIII of the contract contained exclusions for certain kinds of coverage, including—
“8. services and supplies which are furnished;
* * * * * *
“c. primarily for rest cures, custodial care, domiciliary care, or-for the convenience of a hоusehold.” (Italics supplied.)
Prior to March 30, 1972, Ms. Olson had a history of mild diabetes, and on that date she suffered a severe stroke causing paralysis to her right side and some loss of speech.
Ms. Olson was confined to several hospitals and nursing homes from March 30, 1972, through August 5, 1972. From August 5,1972, to December 1,1973, Ms. Olson was confined to three nursing homes and defendant paid plaintiff the maximum amount allowable under the policy for that period.
From December 1, 1973, until the time of trial, Ms. Olson was confined in nursing homes with occasional periods of hospitalizatiоn in Midway Hospital. Defendant refused to pay any benefits to Ms. Olson after December 1, 1973, because it claimed that the care Ms. Olson received was “custodial care” and thus excluded by the policy. The parties stipulated that the maximum amount payable under the contract was $12,678.12.
The trial court found that—
“ * * * [p]laintiff continues to suffer paralysis in her right side, speech and face, and requires daily insulin for her diabetic condition, as well as other medication. Throughout said period she has received therapy, must be fed at every meal, must bе bathed, and needs assistance to take care of all of her bowel functions and all other personal needs.”
The defendant raises three issues on appeal:
(1) Did the trial court fail to make necessary findings as to whether the care furnished to Ms. Olson was “custodial care” and whether the insurance contract was supplemental to Medicare?
(2) Was the trial court clearly erroneous in finding that Ms. Olson needed and was provided “skilled nursing care”?
(3)Did the trial court abuse its discretion in questioning one of defendant’s witnesses?
1. Failure to make necessary findings.
Defendant claims that the trial court failеd to make necessary findings on the issues of “custodial care” and whether the insurance was supplemental to Medicare. Although the insurance policy is clearly designed to supplement Medicare as well as other insurance benefits, there is no indiсation in the policy itself that the definitions of “custodial care” or “skilled nursing care” are dependent upon the so-called Medicare Act. 3 Thus, although the court could have used the definitions of the terms involved as developed in Federal cases interpreting the Medicare Act as persuasive authority, the finding that the contract was supplemental to Medicare was not necessary.
Defendant also claims that the trial court was required to make a finding that it used Medicare regulations and guidelines to determine coverage under the policy in question. This claim is difficult to understand unless defendant is requesting a finding that the Medicare regulations are a part of the contract. It is uncontroverted that defendant did use such guidelines, but its claim is defective in two respects.
First, the regulations introduced by defendant which may be relevant to the present case are those which define skilled nursing and personal services care, 20 CFR § 405.127 (1975). These regulations were not adopted until September 24, 1975, and were not a part of the сontract which was originally issued in 1966.
Secondly, even if the regulations had been adopted earlier and had been in effect at the time of the policy’s issuance, the trial court should have found that they were not a part of the policy. Applicatiоn of such detailed guidelines would result in restrictive coverage. The defendant, had it
The insurance policy at issue in the present case excludes coverage for “custodial care” services, and defendant’s denial of benefits was based on this exclusion. The trial court, however, made no express findings on the question of- whether the care provided Ms. Olson- was “custodial care.” It found instead that she was in need of and was provided with “skilled nursing care.” If the court concluded that the terms “skilled nursing care” and “custodial care” were mutually exclusivе, then the findings it actually made were impliedly a finding that the care given Ms. Olson was not “custodial care.” We believe this to be a reasonable interpretation of the trial court’s findings. This interpretation is borne out by application of the principle that thе denial of a proposed amended finding is equivalent to a contrary finding.
Roberge v. Cambridge Cooperative Creamery Co.,
“XVI.
“That the services provided to plaintiff after December 1, 1973, constitute custodial care.”
The court denied defendant’s motion and thus found that the services did not constitute “custodial care.”
2. Skilled nursing care and custodial care, (a) The court’s finding.
Defendant claims that the conclusions that Ms. Olson needed and was provided “skilled nursing care” were not supported by the findings beсause no definition of “skilled nursing care” was provided in the findings. It also claims that the finding that Ms. Olson “has been in need of [and] requires skilled nursing care” was clearly erroneous.
Dr. Kenneth Lerdahl, Ms. Olson’s personal physician, testified that she was in need of skilled medical and nursing helр. He further testified that the care she needed went beyond “custodial care.” This testimony was consistent with a letter written by Dr. Lerdahl concerning Ms. Olson in December 1974.
Defendant’s medical director, Dr. Donald Woodley, testified, however, that the care given Ms. Olson from December 1, 1973, until the time of trial was “custodial care.” That opinion was based entirely on checklist reports made by the nursing homes to defendant’s claims department. Dr. Woodley never personally examined Ms. Olson and never contacted Dr. Lerdahl.
5
The trial сourt’s findings that Ms. Olson required “skilled nursing care” and was provided with “skilled nursing care” are amply supported by the testimony of Dr. Lerdahl. All of the check sheets reviewed by Dr. Woodley were signed by nursing personnel and it is clear that his conclusions were based completely оn strict application of detailed Medicare definitions. A finding is clearly erroneous if it is not reasonably supported by the evidence as a whole.
Northern States Power Co. v. Lyon Food Products,
(b) Medicare definition of “custodial care.”
Although the Medicare definitions are not controlling in the present case, each party attempts to use cases decided under the Medicare “custodial care” exclusion to
In several cases similar to the present case, courts have reversed the administrative denial of benefits under the Medicare “custodial care” exclusion. In
Whitman
v.
Weinberger,
In
Coe v. Secretary of Health, Education and Welfare,
In
Klofta v. Mathews,
“[Custodial care] is care that could be administered by a layman, without any possible harm to the one in custody. * * This view of ‘custodial care’ is also in agreement with the definition of ‘custodial’ as found in Webster’s Third New International Dictionary (1967 ed.), i. e., ‘relating to or marked by guardianship or maintaining safely.’ Thus, mere ‘custodial care’ refers quite simply to guardianship for convenience that has no significant relation to medical care of any type. Samuels v. Weinberger,379 F.Supp. 120 , 123 (S.D.Ohio 1973).”418 F.Supp. 1143 .
The Medicare cases consider not only the actual services rendered but also the need for extended medical care,
Rockingham National Bank v. Weinberger,
3. Examination of Dr. Woodley by the court.
After both attorneys had completed their questioning of defendant’s medical director, Dr. Woodley, the court questioned him primarily about his failure to consult with Dr. Lerdahl. The questioning was sharp and defense counsel objeсted. The defendant claims that the trial judge became an advocate to such an extent that
Affirmed.
Notes
. Helen Olson, the original plaintiff in this case, died after the appeal was filed. Her personal representative was substituted as a party.
. The contract stated in several places that the coverage Was supplemental to Medicare, the hospital and supplemental medical insurance plan established by Title XVIII of the Social Security Act of 1965. It also stated that it was supplemental to any other similar insurance.
. The only dеfinition which conceivably depends upon Medicare definitions is the definition of “approved bed” in Part IV. This definition is not at issue in the present case.
. The Medicare Act excludes payment for “custodial care,” 42 U.S.C.A. § 1395y(a)(9), but the term is not defined in the statute itself.
. Thе trial court was obviously impressed by this lack of contact and made a specific finding on the point.
. A parallel might be drawn between the requirement that the Medicare law be liberally construed to include coverage,
Whitman v. Weinberger,
. Custodial care exclusions were upheld in
Weir v. Richardson,
. This is the rule in most jurisdictions. See, 3 Wigmore, Evidence (Chadbourn Rev.) § 784; McCormick, Evidence (2 ed.) § 8.