03-000551N Leigh Olinger And Steven Olinger, On Behalf Of And As Parents And Natural Guardians Of Jason Olinger, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, December 17, 2003.

Summary: The proof failed to demonstrate that the infant was substantially mentally and physically impaired. Therefore, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

LEIGH OLINGER AND STEVEN )

OLINGER, on behalf of and as )

parents and natural guardians )

of JASON OLINGER, a minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 0551N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATI ON, )

)

Respondent, )

)

and )

)

DELIA DELGADO, M.D., AND WOMAN )

TO WOMAN CENTER, P.A., and )

MORTON PLANT HOSPITAL )

ASSOCIATION, INC., )

)

Intervenors. )

)

FINAL ORD ER

With the parties' agreement, this case was heard on an

agreed record.

STATEMENT OF THE ISSUE

At issue is whether Jason Olinger, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan.

PRELIMINARY STATEME NT

On February 14, 2003, Leigh Olinger and Steven Olinger, on

behalf of and as parents and natural guardians of Jason Olinger

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

Administrative Hearings (DOAH) to resolve whether Jason suffered

a "birth - related neurological injury," as defined by the Florida

Birth - Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) with a copy of the claim on

February 19, 2003. NICA reviewed the claim and on June 2, 2003,

gave notice that it was of the view that the infant "did not

suffer from a 'birth - related neurological injury' within the

meaning of Section 766.302(2), Fla. Stat.," and requested that a

hearing be schedu led to address the issue of compensability. In

the interim, Delia Delgado, M.D., Woman to Woman Center, P.A.,

and Morton Plant Hospital Association, Inc., were accorded leave

to intervene.

By order of October 22, 2003, a hearing was scheduled for

December 4 and 5, 2003, in St. Petersburg, Florida, to address

the issue of compensability; however, on November 26, 2003, the

parties filed a Pre - H earing Stipulation, whereby they agreed to

waive the hearing, and to submit the case for resolution on an

agreed rec ord. The parties' stipulation was approved by order of

December 2, 2003.

Consistent with the parties' Pre - H earing Stipulation,

Petitioners' Exhibit 1 (the medical records filed with DOAH

February 14, 2003); Respondent's Exhibit 1 (the medical report of

Mi chael Duchowny, M.D., dated March 26, 2003), Exhibit 2

(Dr. Duchowny's affidavit dated April 7, 2003), Exhibit 3 (the

deposition of Dr. Duchowny), Exhibit 4 (the deposition of

Joseph Casadonte, M.D.), Exhibit 5 (the deposition of

Leigh Olinger), Exhibit 6 (the deposition of Steven Olinger),

Exhibit 7 (the deposition of Lee Ann Tripepi), and Exhibit 8 (the

deposition of Terri Kersenbrock Graffeo); and Intervenor Morton

Plant Hospital's (Hospital's) Exhibit 1 (Petitioners' answers to

interrogatories served up on them by Intervenors, Delia Delgado,

M.D., and Woman to Woman Center, P.A., on March 31, 2003),

Exhibit 2 (Petitioners' Response to Request for Admissions served

by Intervenors, Delia Delgado, M.D., and Woman to Woman Center,

P.A., on March 31, 2003, as well as a copy of the Request for

Admissions), and Exhibit 3 (signed acknowledgment of receipt of

NICA brochure), were received into evidence. 1

The parties, at their request, were accorded 10 days from

December 4, 2003, to file proposed orders. Respondent elected to

file such a proposal and it has been duly considered.

FINDINGS OF FACT

Stipulated facts

1. Petitioners, Leigh Olinger and Steven Olinger, are the

parents and natural guardians of Jason Olinger, a minor. Jason

was born a live infant on Ju ly 27, 2001, at Morton Plant

Hospital, a hospital located in Pinellas County, Florida, and his

birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Jason's

birth was Delia Delgado, M.D., who, at all times material hereto,

was a "participating physician" in the Florida Birth - Related

Neurological Injury Compensation Plan, as defined by Section

766.302(7), Florida Statutes. 2 Dr. Delgado and Morton Plant

Hospital satisfied the notice provisions of the Plan.

Coverage under the Plan

3. Pertinent to this case, coverage is afforded by the Plan

for infants who suffer a "birth - related neurological injury,"

defined as an "injury to the brain . . . caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, de livery, or resuscitation in the immediate postdelivery

period in a hospital, which renders the infant permanently and

substantially mentally and physically impaired." § 766.302(2),

Fla. Stat. See also §§ 766.309 and 766.31, Fla. Stat.

The cause and tim ing, as well as the

significance of Jason's impairment

4. To address the cause and timing of Jason's impairment,

as well as its significance, the parties offered selected medical

records related to Jason's birth (Petitioners' Exhibit 1); the

deposition o f Michael Duchowny, M.D., a pediatric neurologist who

examined Jason on March 26, 2003, as well as a copy of

Dr. Duchowny's report and affidavit (Respondent's Exhibits 1, 2,

and 3); the deposition of Joseph Casadonte, M.D., Jason's

treating pediatric neuro logist (Respondent's Exhibit 4); the

deposition of Leigh Olinger, Jason's mother (Respondent's Exhibit

5); the deposition of Steven Olinger, Jason's father

(Respondent's Exhibit 6); the deposition of Lee Ann Tripepi,

Jason's occupational therapist (Respond ent's Exhibit 7); the

deposition of Terri Kersenbrock Graffeo, Jason's physical

therapist (Respondent's Exhibit 8); and Petitioners' answers to

interrogatories and request for admissions (Hospital's Exhibits 1

and 2).

5. Here, while the proof demonstrated that Jason suffers

some developmental delay, it likewise demonstrated, indisputably,

that Jason was not substantially mentally or physically impaired.

Consequently, for reasons appearing more fully from the

Conclusions of Law, the claim does not qualify for coverage under

the Plan, and it is unnecessary to address the etiology of

Jason's developmental delay.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has jurisdiction

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

proceedings. § 766.301, et seq , Fla. Stat .

7. 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 t o births

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

8. The injured "infant, her or his personal representative,

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

under the Plan by filing a claim for compensation with the

D ivision of Administrative Hearings. §§ 766.302(3), 766.303(2),

766.305(1), and 766.313, Fla. Stat. The Florida Birth - Related

Neurological Injury Compensation Association, which administers

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

cla im . . . 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."

§ 766.305(3), Fla. Stat.

9. 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. § 766.305(6), Fla. Stat. If, on the other han d, 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 C hapter 120, F lorida Statutes.

§§ 766.304, 766.309, and 766.31, Fla. Stat.

10. In dischar ging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related 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

rendered permanently and substantially

mentally and physically impaired, a

rebut table 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 participating physician in the

course of labor, delivery, or resuscitation

in the imm ediate 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 resuscitation in the

immediate post - delivery period in a hospital.

§ 766.309(1 ), Fla. Stat. An award may be sustained only if the

administrative law judge concludes that the "infant has sustained

a birth - related neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fl a. Stat.

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

injury" is defined by Section 766.302(2), to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gest ation, a live infant weighing at

least 2,000 grams at birth caused by oxygen

deprivation or mechanical injury occurring in

the course of labor, delivery, or

resuscitation in the immediate postdelivery

period in a hospital, which renders the

infant permanen tly 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.

12. As the claimants, the burden rested on Petitioners, as

the proponents of the issue, to demonstrate that Jason suffered a

"birth - related neurological injury." § 766.309(1)(a), Fla. Stat.

See also Balino v. Department of Health and Rehabilitative

Services , 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden

of proof, apart from statute, is on the party asserting the

affirmative issue before an administrative tribunal.").

13. Here, the proof failed to support the conclusion that,

more likely than not, Jason was "permanently and substantially

mentally and physica lly impaired." Consequently, the record

developed in this case failed to demonstrate that Jason suffered

a "birth - related neurological injury," within the meaning of

Section 766.302(2), and the claim is not compensable.

§§ 766.302(2), 766.309(1), and 766 .31(1), Fla. Stat. See also

Florida Birth - Related Neurological Injury Compensation

Association v. Florida Division of Administrative Hearings , 686

So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive

and can only be interpreted to require both s ubstantial mental

and substantial physical impairment.); Humana of Florida, Inc. v.

McKaughan , 652 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the

Plan . . . is a statutory substitute for common law rights and

liabilities, it should be strictly construe d to include only

those subjects clearly embraced within its terms."), approved ,

Florida Birth - Related Neurological Injury Compensation

Association v. McKaughan , 668 So. 2d 974, 979 (Fla. 1996).

14. Where, as here, the administrative law judge determines

that ". . . the injury alleged is not a birth - related

neurological injury . . . he [is required to] enter an order [to

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

immediately to the parties by registered or certified mail."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency

action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by Lei gh

Olinger and Steven Olinger, on behalf of and as parents and

natural guardians of Jason Olinger, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 17th day of December, 2003, in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675 SUNCOM 278 - 9675

Fax Filing (850) 921 - 6847

w ww.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 17th day of December, 2003.

ENDNOTES

1/ Petitioners and Intervenors, Delia Delgado, M.D., and Woman

to Woman Center, P.A., joined in the submission of Respondent's

Exhibits. (Pre - Hearing Stipulation, page 5.)

2/ All citations are to Florida Statutes (2001), unless

otherwise indicated.

COPIES FURNISHED:

(By certified mail)

Kenney Shipley, Executive Director

Florida Birth - Related N eurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308 - 4567

Phillip H. Taylor, Esquire

100 Second Avenue, South

Suite 104, North Tower

St. Petersburg, Florida 33701

Troy J. Cr otts, Esquire

Fowler, White, Boggs and Banker

Post Office Box 210

St. Petersburg, Florida 33731 - 0210

James A. Martin, Jr., Esquire

MacFarlane, Ferguson & McMullen

Post Office Box 1669

Clearwater, Florida 33757

Donald H. Whittemore, Esquire

Andrew W. Ro sin, Esquire

Stanley L. Martin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Delia Delgado

12955 Seminole Boulevard

Largo, Florida 34648

Morton Plant Hospital

300 Pinellas Street

Clearwater, Florida 33756

Ms. Cha rlene Willoughby

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled

to judicial review pursuant to Sections 120.68 a nd 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk of

the Division of Administrative Hearings and a copy, accompanied by

filing fees prescribed by law, with the appropriate District Court

of Appeal. See Section 766.311, Florida Statutes, and Florida

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.