04-002658N Pamela Lynette Johnson On Behalf Of And As Parent And Natural Guardian Of Dakar`i Oshea Williams A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, February 16, 2005.

Summary: The infant was not substantially physically impaired. Therefore, the claim was not compensable.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA LYNETTE JOHNSON on ) )

behalf of and as parent and )

natural guardian of DAKAR'I )

OSHEA WILLIAMS, a minor, )

)

Petitioner, )

) Case No. 04-2658N

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

FINAL ORDER

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

agreed record.

STATEMENT OF THE ISSUE

At issue is whether Dakar'i Oshea Williams (Dakar'i), a

minor, qualifies for coverage under the Florida Birth-Related

Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On July 27, 2004, Pamela Lynette Johnson, on behalf of and

as the parent and natural guardian of Dakar'i Oshea Williams

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

Administrative Hearings (DOAH) 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

July 28, 2004, and on October 21, 2004, following an extension of

time within which to do so, NICA filed its Response to Petition

for Benefits, wherein it gave notice that it was of the view that

Dakar'i 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 9, 2004, a hearing was

scheduled for February 14, 2005, to resolve whether the claim was

compensable; however, on January 27, 2005, the parties filed a

Joint Motion to Submit Stipulated Factual Record and Written

Agreement in Lieu of Contested Hearing, wherein they agreed "to

submit a stipulation record of the evidence that would be

presented at the final hearing," and requested that the hearing

scheduled for February 14, 2005, be cancelled. The parties'

motion was approved by Order of January 28, 2005, and the hearing

scheduled for February 14, 2005, was cancelled. The Order also

provided that the parties file their stipulated record, as well

as any written argument, on or before February 14, 2005.

The parties filed their Stipulated Record on February 14,

2005, as well as Petitioner's Written Argument and proposed Final

Order and Respondent's proposed Final Order. The parties'

submittals have been duly considered.

FINDINGS OF FACT

Undisputed facts 1

1. Pamela Lynette Johnson is the natural parent and

guardian of Dakar'i Oshea Williams, a minor. Dakar'i was born a

live infant on September 18, 1999, at Florida Hospital, a

hospital located in Orlando, Florida, and his birth weight

exceeded 2,500 grams.

2. The physician providing obstetrical services at

Dakar'i's birth was Cordell Mitchell, 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.

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, 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. Here, the parties' Stipulated Record demonstrates that

Dakar'i is permanently and substantially mentally impaired.

However, physically, Dakar'i was not similarly affected or,

stated otherwise, he is not substantially physically impaired,

much less permanently and substantially physically impaired.

Consequently, for reasons appearing more fully in the Conclusions

of Law, the claim is not compensable, and it is unnecessary to

resolve whether Dakar'i's impairments resulted from a brain

injury caused 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 over the parties to, and the subject matter of,

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

6. 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.

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 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 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 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 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. §§ 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

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 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 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 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 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 Dakar'i was

permanently and substantially mentally impaired, it also

demonstrated that he was not permanently and substantially

physically impaired. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Dakar'i does not qualify

for coverage under 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 substantial 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 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

Pamela Lynette Johnson, on behalf of and as parent and natural

guardian of Dakar'i Oshea Williams, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 16th day of February, 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

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 16th day of February, 2005.

ENDNOTE

1/ Stipulated Record, Exhibit 8; Petitioner's proposed Final

Order, paragraphs 1 and 2; and Respondent's proposed Final Order,

paragraphs 1 and 2.

COPIES FURNISHED:

(By certified mail)

David R. Best, Esquire

Best & Anderson, P.A.

1201 East Robinson Street

Orlando, Florida 32801

M. Mark Bajalia, Esquire

Volpe, Bajalia, Wickes, Rogerson

& Galloway

Riverplace Tower, Suite 1700

1301 Riverplace Boulevard

Jacksonville, Florida 32207

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Cordell Mitchell, M.D.

974 Douglas Avenue, Suite 102

Altamonte Springs, Florida 32714

Florida Hospital South

601 East Rollins Street

Orlando, Florida 32803

Charlene Willoughby, Director

Consumer Services 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 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 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.