04-001622N Jennifer Anne Miller And Seti June, Individually And As The Parents And Natural Guardians Of Isiah Jamal June, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, March 14, 2005.

Summary: The infant was substantially physically impaired, but not substantially mentally impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JENNIFER ANNE MILLER AND SETI )

JUNE, individually and as the )

parents and natural guardians )

of ISIAH JAMAL JUNE, a minor, )

)

Petitioners, )

)

vs. ) Case No. 04 - 1622N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

)

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 March 1, 2005, by

video teleconference, with sites in Tallahassee and Orlando,

Florida.

APPEARANCES

For Petitioners: David R. Best, Esquire

Best & Anderson, P.A.

1201 East Robinson Street

Orlando, Florida 32801

For Respondent: George W. (Trey) Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

STATEMENT OF THE ISSUES

At issue is whether Isiah Jamal June, a minor, qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On May 3, 2004, Jennifer Anne Miller and S eti June,

individually and as the parents and natural guardians of Isiah

Jamal June (Isiah), a minor, filed a petition (claim) with the

Division of Administrative Hearings (DOAH) for compensation

under the Plan.

DOAH served the Florida Birth - Related Neurol ogical Injury

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

May 4, 2004, and on November 5, 2004, following a number of

extensions of time within which to do so, NICA filed its

response to the petition for benefits and gave notice that it

was of the view that Isiah did not suffer a "birth - related

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

Statutes, and requested that a hearing be scheduled to resolve

whether the claim was compensable. By Notice of Hearing dated

November 2 9, 2004, such a hearing was scheduled for March 1,

2005.

At hearing, the parties stipulated to the factual matters

contained in paragraphs 1 and 2 of the Findings of Fact which

follow, and Respondent's Exhibits A - H were received into

evidence. No witnesse s were called, and no further exhibits

were offered.

The parties were accorded 10 days from the date of the

hearing to file proposed orders. Respondent elected to file

such a proposal, and it has been duly considered.

FINDINGS OF FACT

Preliminary finding s

1. Jennifer Anne Miller and Seti June, are the natural

parents and guardians of Isiah Jamel June, a minor. Isiah was

born a live infant on August 23, 2002, at Central Florida

Regional Hospital, a hospital located in Sanford, Florida, and

his birth wei ght exceeded 2,500 grams.

2. The physician providing obstetrical services at Isiah's

birth was Michael Geiling, D.O., who, at all times material

hereto, was a "participating physician" in the Plan, as defined

by Section 766.302(7), Florida Statutes.

Cover age 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 injury occurri ng 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, F la.

Stat.

4. Here, the proof demonstrates that Isiah, who presents

with a diagnosis of athetoid cerebral palsy, is permanently and

substantially physically impaired. However, mentally, Isiah is

not similarly affected or, stated otherwise, he is not

perma nently and substantially mentally impaired. Consequently,

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

claim is not compensable, and it is unnecessary to resolve

whether Isiah's impairments resulted from a brain or spinal cord

injury ca used by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation, or

whether his impairments are attributable to another etiology.

CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has

jurisdiction o ver the parties to, and the subject matter of,

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

6. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claim s" relating to births

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

7. 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 compensati on

with the Division 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 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." § 766.305(3), Fla. Stat.

8. If NICA determines that the inju ry 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 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 C hapter 120, F lorida

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

9 . 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 mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impa ired, 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 participating physician in

the course of labor, delivery, or

resuscitati on 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

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), Fla. Stat.

10. 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 gestation, 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 in fant 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.

11. Here, while the proof demonstrated that Isiah was

permanently and substantially physically impaired, it also

demonstrated that he was not permanently and substantially

mentally impaired. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Isiah does not qualify for

coverage u nder the Plan. 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 subst antial mental and physical impairment.);

Humana of Florida, Inc. v. McKaughan , 652 So. 2d 852, 859 (Fla.

2d 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).

12. Where, as here, the administrative law judge

determines that ". . . the i njury 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

Jennifer Anne Miller and Seti June, individually and as parents

and natural guardians of Isiah Jamel June, a minor, is dismissed

with prejudice.

DONE AND ORDERED this 14th day of March, 2005, 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.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 14th day of March, 2005.

COPIES FURNISHED:

(By certified mail)

David R. Best, Esquire

Best & Anderson, P.A.

1201 East Robinson Street

Orlando, Florida 32801

George W. (Trey) Tate, III, Esquire

Broad & Cassel

390 North Orange Avenue, Suite 1100

Orlando, Florida 32801

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Post Office Box 14567

Tallahassee, Florida 32308 - 4567

Michael Geiling, D.O.

Mid - Florida OB/GYN Specialists

661 East Altamonte Drive, Suite 130

Altamonte Springs, Florida 32701

Central Florida Regional Hospital

1401 West Seminole Boulevard

Sanford, Florida 32771

Charlene Willoughby, Director

Consumer Ser vices Unit - Enforcement

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 F inal O rder 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 Agency Clerk

of the Division of Administrative Hearing s 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.