03-003126N Barbara Mary Martinez And Halle Martinez, Jr., On Behalf Of And As Parents And Natural Guardians Of Halle Cohen Martinez, Iii, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, April 21, 2004.

Summary: Proof failed to demonstrate that infant was permanently and substantially mentally and physically impaired. Therefore, the claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BARBARA MARY MARTINEZ and HALLE )

MARTINEZ, JR., on behalf of and )

as parents and natural )

guardians of HALLE COHEN )

MARTINEZ, III, a minor, )

)

Petitioners, )

)

vs. ) Case No. 03 - 3126N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJU RY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings,

by Administrative Law Judge William J. Ken drick, held a final

hearing in the above - styled case on March 25, 2004, in Ocala,

Florida.

APPEARANCES

For Petitioners: Halle Martinez, Jr., pro se

Barbara Mary Martinez, pro se

16865 Southeast 101st Aven ue Road

Summerfield, Florida 34491

For Respondent: Andrew W. Rosin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

S TATEMENT OF THE ISSUES

At issue in this proceeding is whether Halle Cohen Martinez,

III, a minor, qualifies for coverage under the Florida Birth -

Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On August 28, 2003, Barbara Mary Martine z and

Halle Martinez, Jr., on behalf of and as parents and natural

guardians of Halle Cohen Martinez, III (Halle), a minor, filed a

petition (claim) with the Division of Administrative Hearings for

compensation under 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

August 29, 2003, and on January 16, 2004, NICA gave notice that

it was of the view that Halle did not suf fer a "birth - related

neurological injury," as defined by Section 766.302(2), Florida

Statutes (2001) 1 , and requested that a hearing be scheduled to

address whether the claim was compensable. Such a hearing was

duly noticed for March 25, 2004.

At hearing, Halle Martinez, Jr., and Barbara Mary Martinez

testified on their own behalf, and Petitioners' Exhibit 1 (the

medical records filed with the Division of Administrative

Hearings on August 28, 2003) and Respondent's Exhibit 1 (an

affidavit and report by Dona ld C. Willis, M.D.) and Exhibit 2 (an

affidavit and report by Paul R. Carney, M.D.) were received into

evidence. 2 No other witnesses were called, and no further

exhibits were offered.

The transcript of the hearing was filed April 5, 2004, and

the partie s were accorded 10 days from that date to file proposed

orders. Respondent elected to file such a proposal and it has

been duly considered.

FINDINGS OF FACT

Preliminary findings

1. Petitioners, Barbara Mary Martinez and Halle Martinez,

Jr., are the nat ural parents and guardians of Halle Cohen

Martinez, III, a minor. Halle was born a live infant on

November 12, 2001, at Leesburg Regional Medical Center, a

hospital located in Leesburg, Florida, and his birth weight

exceeded 2,500 grams.

2. The physician providing obstetrical services at Halle's

birth was Wendell Courtney, 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 St atutes.

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 or spinal cord . . . caused by

oxygen deprivation or mechanical in jury occurring in the course

of labor, delivery, 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.

4. To address the cause, timing, and significance of

Halle's impairment, Petitioners offered selected medical records

relating to Halle's birth and subsequent development, as well as

the testimony of Mr. and Mrs. Martinez. In turn, Respondent

offered the affidavits and the reports of Doctors Donald C.

Willis and Paul R. Carney.

The cause and significance of Halle's

neurologic impairment

5. At birth, Halle suffered a left brachial plexus injury,

with resultant left arm brachial pl exus palsy, and a left

posterior dislocated shoulder, secondary to the birth brachial

plexus palsy. Thereafter, at age 5 months, Halle underwent

corrective surgery of the brachial plexus using sural nerve

grafts, and at 8 months he underwent corrective su rgery to

improve the function of his left shoulder. The operations

resulted in functional improvements; however, as of the date of

hearing, Halle continued to suffer impairments of his left arm

and hand, which are likely to be permanent, with notable at rophy

within the left upper extremity.

6. Apart from the physical impairment Halle exhibits in his

left upper extremity, he is otherwise neurologically sound,

without evidence of impairment in his right upper extremity or

lower extremities; without eviden ce of cognitive delay; and

without evidence of vision or hearing impairment. Accordingly,

although Halle evidences a significant birth - related left

brachial plexus injury, he is not, on balance, substantially

physically impaired, and evidences no mental i mpairment.

Therefore, for reasons appearing fully in the Conclusions of Law,

the claim is not compensable, and it is unnecessary to address

whether Halle's brachial plexus injury is, anatomically, an

injury to the spinal cord.

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has jurisdiction

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

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

8. 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 after January 1, 1989. § 766.303(1), Fla. Stat.

9. 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

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

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

Neurolo gical Injury Compensation Association, which administers

the Plan, has "45 days from the date 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 i njury is a birth - related neurological injury."

§ 766.305(3), Fla. Stat.

10. 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 ap proved

by the administrative law judge to whom the claim has been

assigned. § 766.305(6), Fla. Stat. If, however, 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.

§§ 766.304, 766.307, 766.309, and 766.31, Fla. Stat.

11. 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 -

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 mechani cal

injury and that the infant was thereby

rendered 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 obs tetrical services were

delivered by a participating 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 physi cian 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 - relate d neurological injury and that obstetrical services

were delivered by a participating physician at birth."

§ 766.31(1), Fla. Stat.

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

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

mean :

. . . injury to the 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 hos pital,

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.

13. As the claimant, t he burden rested on Petitioners to

demonstrate entitlement to compensation. § 766.309(1)(a), Fla.

Stat. 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 statu te, is on the party asserting the

affirmative issue before an administrative tribunal.")

14. Here, given that the proof demonstrated, more likely

than not, that Halle was not permanently and substantially

mentally and physically impaired, it must be resol ved that the

record developed in this case failed to demonstrate that Halle

suffered a "birth - related neurological injury," within the

meaning of Section 766.302(2), Florida Statutes. §§ 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 substantial physical and mental

impair ment.); Humana of Florida, Inc. v. McKaughan , 658 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 construed 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).

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

that ". . . the injury alleged is not a birth - rel ated

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 agen cy 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 petition for compensation filed by

Barbara Mary Martinez and Halle Martinez, Jr., on b ehalf of and

as parents and natural guardians of Halle Cohen Martinez, III, a

minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 21st day of April, 2004, 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

www.do ah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 21st day of April, 2004.

ENDNOTES

1/ All citations are to Florida Statutes (2001) unless otherwise

indicated.

2/ Respondent's Exhibits 1 and 2 are hearsay, and not otherwise

admissible over objection in a civil action. Consequently, they

were received into evidence subject to the limitations imposed by

Section 120.57(1)(c), Florida Statutes (2003)("Hearsay evidence

may be used for the pur pose of supplementing or explaining other

evidence, but it shall not be sufficient in itself to support a

finding unless it would be admissible over objection in civil

actions.")

COPIES FURNISHED:

(By certified mail)

Barbara Mary Martinez

Halle Martinez , Jr.

16865 Southeast 101st Avenue Road

Summerfield, Florida 34491

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 3 2308

Donald H. Whittemore, Esquire

Andrew W. Rosin, Esquire

Phelps Dunbar, LLP

100 South Ashley Drive, Suite 1900

Tampa, Florida 33602

Wendell Courtney, M.D.

Medical Plaza 803

601 East Dixie Avenue

Leesburg, Florida 34748

Leesburg Regional Medical Cen ter

600 East Dixie Avenue

Leesburg, Florida 34748

Ms. Charlene 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 and 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 Agen cy 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.