04-002951N Daphne Waller, As Parent And Natural Guardian Of Wesley Dunaway, Iii, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, June 2, 2005.

Summary: The proof demonstrated that the infant`s brain injury was developmental in nature, having occurred prior to the onset of labor. Consequently, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DAPHNE WALLER, as parent and )

natural guardian of WESLEY )

DUNAWAY, III, a minor, )

)

Petitioner, )

)

vs. ) Case No. 04 - 2951N

)

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 Wesley Dunaway, III, a minor, qualifies

for coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On August 18, 2004, Daphne Waller, as parent and natural

guardian of Wesley Dunaway, III (Wesley), a minor, filed a

petition (claim) with the Division of A dministrative Hearings

(DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

August 19, 2004, and on November 16, 2004, following an

extension of time w ithin which to do so, NICA filed its Response

to Petition for Benefits, wherein it gave notice that it was of

the view that Wesley 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 December 7, 2004, a hearing was

scheduled for May 16, 2005, to resolve whether the claim was

compensable; however, on May 12, 2005, the parties filed an

Amend ed Joint Motion to Submit Stipulated Factual Record and

Written Argument in Lieu of a Contested Hearing, wherein they

agreed "to submit a stipulated record of the evidence that would

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

scheduled fo r May 16, 2005, be cancelled. By Order of May 12,

2005, it was resolved that:

1. The parties' Amended Joint Motion to

Submit Stipulated Factual Record is granted,

and the parties' Pre - Hearing Stipulation and

Stipulated Record [Exhibits 1 - 13 1 ] , filed

May 12, 2005, is accepted.

2. The parties' request to submit written

argument is granted, and they are accorded

until May 25, 2005, to file written argument

or proposed final orders.

3. The hearing in this cause scheduled for

May 16, 2005, is cancelled, an d the claim

will be resolved on the parties' Pre - Hearing

Stipulation and Stipulated Record.

Respondent elected to submit a p roposed f inal o rder, a nd it has

been duly - considered.

FINDINGS OF FACT

Stipulated facts

1. Daphne Waller is the natural mother of Wesley Dunaway,

III, a minor. Wesley was born a live infant on February 11,

2003, 2 at North Florida Regional Medical Center, a licensed

hospital located in Gainesville, Alachua County, Florida, and

his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Wesley's birth was Anthony Agrios, 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 Sta tutes.

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, indisputably, Wesley is permanently and

substantially mentally and physically impaired. 3 What remains to

resolve is whether the record supports the conclusion that, more

likely than not, Wesley's neurologic impairment resulted from an

"i njury to the brain . . . caused by oxygen deprivation or

mechanical injury occurring in the course of labor, delivery, or

resuscitation in the immediate postdelivery period," as required

for coverage under the Plan.

The cause and timing of Wesley's neuro logic impairment

5. To address the cause and timing of Wesley's neurologic

impairment, the parties offered medical records related to,

inter a lia , Ms. Waller's antepartum course; those associated

with Wesley's birth and subseq uent development; and the op inions

of Dr. Michael Duchowny, a pediatric neurologi st , and Dr. Donald

Willis, an obstetrician, regarding the likely etiology of

Wesley's impairment. (Exhibits 1 - 13).

6. As for the etiology of Wesley's neurologic impairment,

it was Dr. Duchowny's opinio n, based on the results of his

neurologic evaluation of Wesley on October 25, 2004, and review

of the medical records, that, while of unknown etiology,

Wesley's neurologic impairment was most likely prenatal

(developmental) in origin, having occurred prior to the onset of

labor, and not associated with oxygen deprivation or mechanical

injury occurring in the course of labor, delivery, or

resuscitation. As for Dr. Willis, he, like Dr. Duchowny, was of

the opinion that the medical records failed to support a

conclusion that Wesley's brain damage was associated with the

birth process. Finally, the medical records, including the

observations of the physicians who have treated Wesley, while

unrevealing as to etiology, also speak to the likelihood of a

developme ntal disorder, as opposed to birth trauma, as the cause

of Wesley's neurologic impairment. 4

7. Given the record , it must be resolved that Wesley's

impairments were , more likely than not, occasioned by a

developmental abnormality, that preceded the onset of labor, and

not by an injury to the brain occurring in the course of labor,

delivery, or resuscitation. See , e.g. , Wausau Insurance Company

v. Tillman , 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the

medical conditions which the claimant alleged h ad resulted from

the workplace incident were not readily observable, he was

obliged to present expert medical evidence establishing that

causal connection."); Ackley v. General Parcel Service , 646 So.

2d 242 (Fla. 1st DCA 1995)(determining cause of psychia tric

illness is essentially a medical question, requiring expert

medical evidence); Thomas v. Salvation Army , 562 So. 2d 746, 749

(Fla. 1st DCA 1990)("In evaluating medical evidence a judge of

compensation claims may not reject uncontroverted medical

testi mony without a reasonable explanation.")

CONCLUSIONS OF LAW

8 . The Division of Administrative Hearings has

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

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

9 . The Florida Birth - Related Neurol ogical 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.

10 . 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), and 766.305(1), 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( 4 ), Fla. Stat.

1 1 . If NICA determines that the injury alleged in a claim

is a compensable birth - related neurological injury, it may award

c ompensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305( 7 ), 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.

12 . In discharging this responsibility, the administrative

law judge must make the follo wing 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

neurologi cal 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 ju dge 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.

1 3 . 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 for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at bi rth 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.

1 4 . As the proponent of the issue, the burden rested on

Petitioner to demonstrate that Wesley suffered a "birth - relate d

neurological injury." § 766.309(1)(a), Fla. Stat. S ee 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 b efore an administrative tribunal.").

1 5 . Here, the proof failed to support the conclusion that,

more likely than not, Wesley's neurologic impairment was the

result of a brain or spinal cord injury caused by oxygen

d eprivation or mechanical injury occurr ing in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital. Consequently, given the provisions of

Section 766.302(2), Florida Statutes, Wesley does not qualify

for coverage under the Plan. See also §§ 766. 309(1) and

766.31(1), Fla. Stat. ; 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 constructed to include only tho se subjects

clearly embraced within its terms."), approved , Florida Birth -

Related Neurological Injury Compensation Association v.

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

1 6 . Where, as here, the administrative law judge

determines that ". . . the injur y alleged is not a birth - related

neurological injury . . . she or 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. Su ch 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

Daphne Waller, as parent and natural guardian of Wesley Dunaway,

III, a minor, is dismissed with prejudice.

DONE AND ORDERED this 2nd day of June, 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 2nd day of June, 2005 .

ENDNOTES

1/ Exhibit 6 (Medical Records from Shand's Hospital at UF for

Wesley) covers a number of treatment dates and has been marked

Exhibits 6A - 6I).

2/ The petition, as well as the parties' Pre - Hearing

Stipulation, re flect a date of birth of August 11, 2003;

however, Wesley's Certification of Birth, as well as the

Stipulated Record, reveal that Wesley was born February 11,

2003.

3/ Wesley was evaluated by Michael Duchowny, M.D., a pediatric

neurologist associated wi th Miami Children's Hospital , on

October 25, 2004. I n his report of October 27, 2004,

Dr. D uchowny described Wesley's neurologic impairment, as

follows:

NEUROLOGIC EXAMINATION reveals severe

impairment of cognitive and motor

functioning. Wesley makes no meaningful

contact with the environment and does not

visually fixate or follow. He does not

communicate by vocalizing and does not

respond to verbal commands. He lies supine

in his father's arms. There is no blink to

threat from either direction, but h e does

appear to alert to a loud noise. He does

not reach for offered objects. There is

left positional plagiocephaly. There is no

evidence of central gaze fixation or

conjugate following. I saw no rotational

nystagmus or opsoclonic movements. The

pup ils are 3 mm and react briskly to direct

and consensually presented light and the

ocular fundi are unremarkable. The facial

movements are diminished. Tongue movements

are poorly coordinated. The uvula is

midline. The pharyngeal folds are

symmetric. Mo tor examination reveals a

marked generalized static hypotonia. The

muscles have a doughy quality. There are no

adventitious movements and no focal

weakness. A widespread disuse atrophy is

noted. There are no fixed contractures.

The deep tendon reflexe s are difficult to

elicit being 1. Both plantar responses are

bilaterally upgoing. There is no evidence

of palmar grasping or traction response, and

head control is poor. There is little in

the way of axial support. In supine

positioning, Wesley's hea d droops forward.

He does not demonstrate obligate to n ic neck

responses. There is withdrawal of all

extremities to stimulation. The

neurovascular examination reveals no

cervical, cranial or ocular bruits, and no

temperature or pulse asymmetries.

(Exhib it 12).

4/ Wesley presents with a complex medical history remarkable

for a complete lack of myelination of the white matter, with

global developmental delay, hypotonic cerebral palsy, failure to

thrive, gastroesophageal reflex, and a history of

seizures/ abnormal motor movements . T o date, the probable cause

of Wesley's neurologic impairments has not been identified;

however, birth history ha s been considered noncontributory.

COPIES FURNISHED:

(By certified mail)

Patrick C. Massa, Esquire

1201 U.S. Hi ghway One, Suite 400

North Palm Beach, Florida 33408

M. Mark Bajalia, Esquire

Brennan, Manna & Diamond

76 South Laura Street, Suite 1700

Jacksonville, Florida 32202

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensa tion Association

Post Office Box 14567

Tallahassee, Florida 32317 - 4567

Anthony Agrios, M.D.

6400 Newberry Road, Suite 101

Gainesville, Florida 32605

North Florida Regional Medical Center

6500 Newberry Road

Gainesville, Florida 32614

Charlene Willough by, 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 rev iew 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.