### COURT OF APPEALS DECISION DATED AND FILED March 18, 2021

Sheila T. Reiff Clerk of Court of Appeals NOTICE
This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See W IS . S TAT . § 808.10 and R ULE 809.62.

Appeal No. 2020AP1442 Cir. Ct. No. 2020SC260 STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT IV

B ANDARA G AMINI ,
P LAINTIFF - A PPELLANT ,

V . Q UARTZ H EALTH B ENEFIT P LANS C ORPORATION ,
D EFENDANT - R ESPONDENT .

APPEAL from an order of the circuit court for Grant County:
CRAIG R. DAY , Judge. Affirmed

. ¶ 1 NASHOLD, J. 1 In this small claims action, a policyholder appeals a circuit court order upholding the insurer ’ s denial of his claim. I conclude that the

1 This appeal is decided by one judge pursuant to W IS

. S TAT

. § 752.31( 2)(a) (20 19

- 20 ). All references to the Wisconsin Statutes are to the 201 9

- 20 version unless otherwise noted.No. 2020AP1442

2 medical procedure at issue is not covered by the insurance policy and , accordingly,
affirm the circuit court ’ s order.

BACKGROUND

¶ 2 Bandara Gamini (Gamini) subscribes to a Wisconsin med ical insurance plan through Quartz Health Benefit Plans Corporation (Quartz)

. Gamini ’ s 19

- year

- old son, Tikiri Bandara 2 (Tikiri) , was visiting his mother in Sri Lanka when he developed severe dental pain. Tikiri sought medical treatment,
and X

- rays revealed that he had four impacted w isdom teeth. No infection or

a b scess was detected. The four teeth were successfully removed by Dr. Parakrama Wijekoon, an oral and maxillofacial surgeon at a hospital in Kandy, Sri Lanka

. Tikiri remained in the hospital overnight and was discharged the next day. The hospital billed $4,600 for the procedure, and the Gamini family paid in full.

¶ 3 Gamini filed a claim under his policy with Quartz , which covered Tikiri as a participant

. The hos pital is not a Quartz in

- network provider , and
Gamini ’ s policy instructs that, “ [e] xcept as specifically stated for EMERGENCY
and URGENT CARE

... , YOU do not have coverage for services from OUT

- OF

NETWORK PROVIDERS

. ” T he exception to the policy ’ s exclusion for out

- of

network care provide s coverage for “ EMERGENCY or URGENT CARE services
outside the SERVICE AREA

. ” 3 Quartz physician Laura Krister evaluate d the

2 The record reflects that the appellant’s first name is the same as his son’s last name. To avoid confusion, I distinguish between the two by using the appellant’s last name , Gamini, and his son’s first name , Tikiri

.

3 On appeal, the parties agree that Tikiri’s procedure could only be covered under the Quartz policy if the procedure was deemed an “emergency” under the policy. Neither party discusses the policy’s provisions relating to “urgent care.”No. 2020AP1442

3 claim and, b ased on her conclusion that Tikiri ’ s condition allowed him to travel to
the United States for treatment , Quart z denied the claim.

¶ 4 Gamini appealed the denial of coverage, and Quartz denied the appeal following a review by Dr. Mary Pak , another Quartz physician

. Dr. Pak ’ s report explained that the medical records did not i ndicate an active infection or abscess that required operative intervention

. ¶ 5 Gamini filed a small claims action in Grant County seeking
reimbursement for the entire $4,600 cost of the procedure

. 4 Following a hearing , the circuit court upheld Quartz ’ s denial of coverage and dismissed Gamini ’ s action. I affirm.

DISCUSSION

¶ 6 Our supreme court has consistently stated that the interpretation of an insurance contract is a question of law reviewed de novo. Fontana Builders , Inc. v. Assurance Co. of Am. , 2016 WI 52, ¶ 38, 369 Wis. 2d 495, 882 N.W.2d 398 (collecting cases). “ [ W ] here a dispute turns upon application of an insurance policy to underlying facts, interpretation of the insurance policy presents a question of law fo r the court. ” Id. , ¶48. The circuit court ’ s findings of fact will be upheld unless clearly erroneous. Phelp s v. Physicians Ins. Co. of Wis. , 2009 WI 74, ¶ 34, 319 Wis. 2d 1, 768 N.W.2d 615. The credibility of witnesses and the weight to be attached to t hat evidence are matters uniquely within the province of

4 At the small cla ims hearing, the circuit court inquired into the extent to which Quartz would reimburse the cost of the procedure if the court determined that the procedure was covered under Gamini’s policy

. Quartz’s written response indicated that, if the situation w ere d eemed an “emergency” wi thin the meaning of the policy , the n, after adjustments for Ti kiri’s deductible and
co

- insurance, Quartz would reimburse $4,110.37 of the $4,600 cost of the procedure

.No. 2020AP1442

4 the trial court when , as here, it acts as the finder of fact. See Global Steel Prods

. Corp. v. Ecklund Carriers, Inc. , 2002 WI App 91, ¶10, 253 Wis. 2d 588, 644
N.W.2d 269.

¶ 7 The circuit court made the following findings of fact. The court
found that “ Tikiri developed severe mouth pain ” while in Sri Lanka. The court found that Tikiri was admitted to the hospital for the removal of the four teeth and remained there overnight. The court also found that “ [ t ] he eruption and impaction of wisdom teeth occurs over a matter of years. Although it can be extremely uncomfortable, delay in removal of impacted wisdom teeth has not been shown to risk imminent and serious jeopardy to a par ticipant ’ s health nor serious impairment or dysfunction. ” Based on these findings of fact, the court determined that Tikiri was not suffering an “ emergency ” at the time of the procedure, as that term is defined in the policy language. The policy defines “ emergency ” as follows:

EMERGENCY: Means a medical condition that

manifests itself by acute symptoms of sufficient severity, including severe pain, to lead a prudent layperson who possesses an average knowledge of health and medicine to reasonably conclud e that a lack of medical attention will likely result in any of the following: 1) Serious jeopardy to the PARTICIPANT ’ S health. With respect to a pregnant woman, it includes serious jeopardy to the unborn child. 2) Serious impairment to the PARTICIPANT ’ S bodily functions. 3) Serious dysfunction of one or more of the PARTICIPANT ’ S body organs or parts. 5

5 T he policy contains a non

- exhaustive list of “ examples of E MERGENCIES ” : “ i) Acute allergic reactions, ii) Acute asthmatic attacks, iii) Convulsi ons, iv) Epileptic seizures, v) Acute (continued)No. 2020AP1442

5 ¶ 8 It is undisputed that neither Tikiri nor his treating physician,
Dr. Wijekoon, testified at the hearing. However, the circuit court had before it a letter from Dr. Wijekoon to Quartz with the subject line “ RE: Emergency Dental Care for Tikiri Bandara, ” in which Dr. Wijekoon confirmed that a cash payment of $4,600 was received “ for the emergency dental care ” o f Tikiri. Although no transcript was included in the record, it appears that Dr. Krister testified at the hearing, and possibly other Quartz employees. 6 Based on the record, t he circuit
court concluded that Tikiri ’ s health situation involving his wisdom teeth was not an emergency as defined in the health plan and was therefore not a covered expense. The court noted that the record before it contained no evidence of any jeopardy to Tikiri ’ s health, serious impairment of his bodily functions, or serio u s d y sfunc tion of a bodily organ or part. In so concluding, t he court declined to accept Dr. Wijekoon ’ s “ bald assertion that the procedure was an emergency ” while also declining to “ accept at face value the testimony of Quartz ’ s employees
that it was not an em ergency. ” I nstead , the court not ed that it was required to apply the undisputed facts of the case to the policy language “ without the need to endorse one or the other of the medical opinions. ”

¶ 9 Gamini argues that the circuit court was wrong to credit the evidence put forth by Quartz over Dr. Wijekoon ’ s assertions

. First, Gamini asserts that the court should have disregarded the opinion of Q uartz employee Dr. Krister because

hemorrhage, vi) Acute appendicitis, vii) Coma, viii) Heart at tack, ix) Attempted suicide, x) Suffocation, xi) Stroke, xii) Drug overd oses, xiii) Loss of consciousness, and xiv) Any condition for which YOU are admitted to the HOSPITAL as an inpatient from the EMERGENCY
room. ”

6 T his conclusion is based on t he circuit court ’s refer ence to the “testimony” of Quartz employees and Gamini ’s reference to the “tes timony” of Dr. Krister.No. 2020AP1442

6 Dr. Krister is a practitioner of family medicine and is no t an oral and maxillofacial
surgeon. I reject this argument. Dr. Krister is a licensed physician , and the circuit

court was not required to accept Dr. Wijekoon ’ s statement that the care was an

“ emergency ” because Dr. Wijekoon is an oral and maxillofacial surgeon and
Dr. Krister is not. Furthermore, Gamini failed to take advantage of an opportunity to request and receive an independent external review by an independent review organization , which Quartz asserts would have allowed for review by an oral
surg eon

. Gamini does not address the independent external review process Quartz provides its subscribers, nor does he respo nd to Quartz ’ s assertion that the process

wou ld have allowed for review by a specialist

. 7

¶ 10 Second, Gamini contends that the circuit court erred in rejecting as a

“ ba ld assertion ” statement s in the letter from Dr. Wijekoon that the procedure performed was “ emergency dental care. ” Notably, the letter from Dr. Wijekoon to Quartz in which he describes the procedure as “ emergency dental care ” is the only
evidence in the record that Gamini points to in support of his claim that Tikiri ’ s condition was an emergency within the meaning of the policy language. I disagree
that the court erroneously exercised its d iscretion by not accepting Dr. Wi j e k oon ’ s two references to “ emergency dental care ” as conclusory proof that Tikiri ’ s condition amounted to an emergency. The references to “ emergency dental care ”
are made in a letter from Dr. Wijekoon to Quartz , the primary purpose of which was to indicate receipt of payment in the amount of $4,600. Unlike Dr. Krister ’ s report, which noted that Tikiri ’ s condition allowed him to travel, Dr. Wijekoon ’ s letter to Quartz does not indicate any reason for reaching a de termination that

7 Gamini did not file a reply brief in this appeal.No. 2020AP1442

7 Tikiri ’ s condition constituted an emergency. Furthermore, a second Quartz physician, Dr. Pak, reviewed the case and cam e to the same conclusion as
Dr. Krister , providing further support for the circuit court ’ s conclusion that
Tikiri ’ s con dition did not amount to an emergency. Thus, I reject Gamini ’ s argument regarding the weighing of evidence

. ¶ 11 Gamini next argues that the following statement by the circuit court is a medical opinion beyond the court ’ s purview:

Even ac cepting that Tikiri developed severe pain while in Sri Lanka, the policy definition of an emergency requires more. It requires a reasonable belief that a lack of medical attention will result in damage or serious impairment or dysfunction. The record con tains no evidence of any jeopardy to Tikiri ’ s health, serious impairment of his bodily functions, or serious dysfunction of a bodily organ or part. The eruption and impaction of wisdom teeth occur over a matter of years.

This statement contains both the circuit court ’ s application of the policy language
to the facts of this case and the court ’ s finding of fact regarding the nature of the eruption of wisdom teeth. Contrary to Gamini ’ s suggestion , it is not beyond the purview of the court to interpret the policy language and apply that language to the
facts of the case. To the extent Gamini contests the court ’ s finding s of fact regarding “ [t]he eruption and impaction of wisdom teeth, ” Gamini has fa iled to
show that th e court ’ s finding s w ere clearly erroneous. Moreover, it is Gamini ’ s responsibility as appellant to ensure the completeness of the record, and the record does not contain a transcript of the small claims hearing. Therefore, I assume th at the missing transcript would support the court ’ s finding s regarding the eruption of
wisdom teeth

. See State v. Provo , 2004 WI App 97, ¶19, 272 Wis. 2d 837, 681
N.W.2d 272 (it is the appellant ’ s responsibility to ensure that the record isNo. 2020AP1442

8 complete, and this c ourt assume s that any missing transcripts would support the
circuit court ’ s decision)

. ¶ 12 On de novo review of the circuit court ’ s application of the policy language to the facts of the case, I conclude that Tikiri ’ s condition did not constitute an emergency within the meaning of the policy. The facts show that Tikiri was in severe pain, but do not show that a lack of medical attention would likely have resulted in serious jeopardy to his health, serious impairment to his bodily functions, or serious dysfunction of one or more of his body organs or parts. Thus, his condition did not amount to an “ emergency ” within the policy ’ s definition of that term , and the court therefore properly upheld Quartz ’ s denial of

covera ge and dismissed Gamin i ’ s claim.

CONCLUSION

¶ 13 For the reasons stated above, I affirm the circuit court ’ s order dismissing Gamini ’ s claim.

By the Court.

— Order affirmed.
This opinion will not be published. See W IS

. S TAT

. R ULE 809.23(1 )( b)4.