01-004878N Carl W. Cross And Mylene C. Cross, On Behalf Of And As Parents And Natural Guardians Of Aaron Colby Cross, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, May 19, 2003.

Summary: Claimants failed to offer proof at hearing and thereby failed to carry their burden to demonstrate that the infant suffered a birth-related neurological injury.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CARL W. CROSS and MYLENE C. )

CROSS, as parents and natural )

guardians of AARON COLBY CROSS, )

a minor, )

)

Petitioners, )

)

vs. ) Case No. 01 - 4878N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respon dent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Kendrick, held a final

hearing in the above - styled case on September 4, 2002, by

teleconference.

APPEARANCES

For Petitioner: Raymond J. Greene, Esquire

9525 Blind Pass Road, No. 507

St. Petersburg Beach, Florida 33706

For Respondent: Stanley L. Martin, Esquire

Phelps Dunbar LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

STATEMENT OF THE CASE

At issue in the proceeding is whether Aaron Colby Cross, a

minor, suffe red an injury for which compensation should be

awarded under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEMENT

On October 9, 2001, Carl W. Cross and Mylene C. Cross, as

parents and natural guardians of Aaron Colby Cros s (Aaron), a

minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) for compensation under the Florida

Birth - Related Neurological Injury Compensation Plan (the Plan

DOAH served the Florida Birth - Related Neurological Injury

Comp ensation Association (NICA), with a copy of the claim on

December 24, 2001. 1 NICA reviewed the claim and on February 27,

2002, gave notice that it had "determined that such claim is not

a 'birth - related neurological injury' within the meaning of

Section 7 66.302(2), Florida Statutes," and requested that "an

order [be entered] setting a hearing in this cause on the issue

of compensability of this claim." Such a hearing was duly -

noticed and held on September 4, 2002.

At hearing, Petitioners appeared through counsel, but

offered no evidence. Respondent, given Petitioners' failure to

offer proof, declined the opportunity to offer any evidence. The

transcript of the hearing was not ordered, and the parties waived

the opportunity to submit proposed final orders .

FINDINGS OF FACT

1. As observed in the preliminary statement, neither

Petitioners nor anyone on their behalf offered any proof.

Consequently, it must be resolved that Petitioners failed to

demonstrate Aaron Colby Cross, a minor, suffered a "birth - rel ated

neurological injury" as alleged in the claim for benefits.

CONCLUSIONS OF LAW

2. The Division of Administrative Hearings has jurisdiction

over the parties to, and the subject matter of, these

proceedings. Section 766.301, et seq. , Florida Statutes.

3. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to births

occurring on or afte r January 1, 1989. Section 766.303(1),

Florida Statutes.

4. The injured "infant, his personal representative,

parents, dependents, and next of kin," may seek compensation

under the Plan by filing a claim for compensation with the

Division of Administrati ve Hearings within five years of the

infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and

766.313, Florida Statutes. The Florida Birth - Related

Neurological Injury Compensation Association, which administers

the Plan, has "45 days from the dat e of service of a complete

claim . . . in which to file a response to the petition and to

submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury."

Section 766.305(3), Florida Statutes.

5. If NICA determines that the injury alleged in a claim is

a compensable birth - related neurological injury, it may award

compensation to the claimant, provided that the award is approved

by the administrative law judge to whom the claim has been

assigned. Sec tion 766.305(6), Florida Statutes. If, on the

other hand, NICA disputes the claim, as it has in the instant

case, the dispute must be resolved by the assigned administrative

law judge in accordance with the provisions of Chapter 120,

Florida Statutes. Se ctions 766.304, 766.307, 766.309, and

766.31, Florida Statutes.

6. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

relat ed neurological injury. If the claimant

has demonstrated, to the satisfaction of the

administrative law judge, that the infant has

sustained a brain or spinal cord injury

caused by oxygen deprivation or mechanical

injury and that the infant was thereby

re ndered permanently and substantially

mentally and physically impaired, a

rebuttable presumption shall arise that the

injury is a birth - related neurological injury

as defined in s. 766.303(2).

(b) Whether obstetrical services were

delivered by a partici pating physician in the

course of labor, delivery, or resuscitation

in the immediate post - delivery period in a

hospital; or by a certified nurse midwife in

a teaching hospital supervised by a

participating physician in the course of

labor, delivery, or res uscitation in the

immediate post - delivery period in a hospital.

Section 766.309(1), Florida Statutes. An award may be sustained

only if the administrative law judge concludes that the "infant

has sustained a birth - related neurological injury and that

o bstetrical services were delivered by a participating physician

at birth." Section 766.31(1), Florida Statutes.

7. Pertinent to this case, "birth - related neurological

injury" is defined by Section 766.302(2), Florida Statutes, to

mean:

. . . injury to th e brain or spinal cord of a

live infant weighing at least 2,500 grams at

birth caused by oxygen deprivation or

mechanical injury occurring in the course of

labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital,

which renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

8. As the claimants, the burden rested on Petitioners to

demonstrate entitlement to compensation. See Section

766.309(1)(a), Florida Statutes. See also Balino v. Department

of Health and Rehabilitative Services , 348 So. 2d 349, 350 (Fla.

1st DCA 1977)("[T]he burden of proof, apart from statute, is on

the party asserting the affirmative issue before an

administrative tribunal.")

9. Here, by failing to offer any proof, Petitioners failed

to sustain their burden to demonstrate that Aaron suffered a

"birth - related neurological injury." Accordingl y, the subject

claim has not been shown to be compensable under the Plan.

10. Where, as here, the proof fails to support the

conclusion that the infant suffered a "birth - related neurological

injury," the administrative law judge [is required to] enter a n

order [to such effect] and . . . cause a copy of such order to be

sent immediately to the parties by registered or certified mail."

Section 766.309(2), Florida Statutes. Such an order constitutes

final agency action subject to appellate court review. Section

766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the petition for compensation filed by Carl W.

Cross and Mylene C. Cross, as parents and natural guardians of

Aaron Colby C ross, a minor, is hereby denied with prejudice.

DONE AND ORDERED this 6th day of September, 2002, in

Tallahassee, Leon County, Florida.

___________________________________

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 48 8 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 6th day of September, 2002.

ENDNOTE

1/ The delay in serving NICA, as well as the other persons or

entities named in Section 766.305(2), Florida Statutes, was

occasioned by Petitioners' failure to provide DOAH with the

medical records when they filed their petition. Those records

were filed December 20, 2001.

COPIES FURNISHED:

(By certified mail)

Raymond J. Greene, Esquire

9525 Blind Pass Road, No. 507

St. Petersburg Beach, Florida 33706

Kenney Shipley, Acting Executive Director

Florida Birth - Related Neurological

Injury C ompensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32312

Donald H. Whittemore, Esquire

Lawrence P. Ingram, Esquire

Stanley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tamp a, Florida 33602

Clifford A. Levitt, M.D.

11212 North Dale Mabry Highway, Suite 901

Tampa, Florida 33618 - 3806

St. Joseph's Women's Hospital

3030 West Dr. Martin Luther King Jr. Boulevard

Tampa, Florida 33607

Ms. Charlene Willoughby

Agency for Health Care Administration

Consumer Services Unit

Post Office Box 14000

Tallahassee, Florida 32308

Mark Casteel, General Counsel

Department of Insurance

The Capitol, Lower Level 26

Tallahassee, Florida 32399 - 0300

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party w ho is adversely affected by this final order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing o ne copy of a Notice of Appeal with the Agency Clerk of the

Division of Administrative Hearings and a second copy, accompanied

by filing fees prescribed by law, with the appropriate District

Court of Appeal. See Section 120.68(2), Florida Statutes, and

Flo rida Birth - Related Neurological Injury Compensation Association

v. Carreras , 598 So. 2d 299 (Fla. 1st DCA 1992). The Notice of

Appeal must be filed within 30 days of rendition of the order to

be reviewed.