04-004268N Michele Matteini And Russell Matteini On Behalf Of And As Natural Guardians Of Sierra Matteini, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, September 26, 2005.

Summary: The infant`s deficits were likely developmental in nature, and she was not substantially mentally or physically impaired. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MICHELE MATTEINI AND RUSSELL )

MATTEINI , on behalf of and as )

parents and natural guardians )

of SIERRA MATTEINI, a minor , )

)

Petitioner s , )

)

vs. ) Case No. 04 - 4268N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION AS SOCIATION, )

)

Respondent, )

)

and )

)

ORLANDO REGIONAL HEALTHCARE )

SYSTEM, INC., d/b/a SOUTH )

SEMINOLE HOSPITAL, )

)

Intervenor. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge William J. Kendrick, held

a hearing in the above - styled case on August 22, 2005, by video

teleconference, with sites in Tallahassee and Orlando, Florida.

APPEARANCES

For Pet itioner s : Elihu H. Berman, Esquire

Elihu H. Berman, P.A.

509 South Martin Luther King, Jr., Avenue

Clearwater, Florida 33756 - 5607

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

Broad & Cassel

Post Office Box 4961

Orlando, Florida 3280 2 - 4961

For Intervenor: Henry W. Jewett, II, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue & McLain, P.A.

201 East Pine Street, 15th Floor

Orlando, Florida 32801

STATEMENT OF THE ISSUE

At issue is whether Sierra Matteini, a minor, qualifies for

coverage under the Florida Birth - R elated Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On November 22, 2004, Michele Matteini and

Russell Matteini, on behalf of and as parents and natural

guardians of Sierra Matteini (Sierra), a minor, filed a petition

(claim) , and o n November 24, 2004, an amended petition, with the

Division of Administrative Hearings (DOAH) for compensation

under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

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

November 23, 2004, and Petitioners served NICA with a copy of

the amended petition on November 22, 2004. Thereafter, on

February 16, 2005, following a number of extensions of time

within which to do so, NICA responded to the claim, and gave

notice that it was of the view that Sierra 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. In the

interim, Orlando Regional Healthc are System, Inc., d/b/a South

Seminole Hospital was granted leave to intervene . T hereafter, a

hearing was scheduled for August 22, 2005, to resolve whether

the claim was compensable.

At hearing, Petitioners presented the testimony of

David Turell, M.D., Eric Trumble, M.D., Michelle Webster,

Bonnie Bear, and Michele Matteini, and Petitioners' Exhibits 1 - 3

were received into evidence. Respondent's Exhibits A - L were

likewise received into evidence. No other witnesses were

called, and no further exhibits we re offered.

The transcript of the hearing was filed August 31, 2005,

and the parties were accorded 10 days from that date to file

written argument or proposed orders. Petitioners elected to

file written argument and Respondent elected to file a proposed

o rder. The parties' submittals have been duly considered.

FINDINGS OF FACT

Stipulated facts

1. Michele Matteini and Russell Matteini, are the natural

parents and guardians of Sierra Matteini, a minor. Sierra was

born a live infant on December 28, 2001, at South Seminole

Hospital, a hospital located in Longwood, Florida, and her birth

weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Sierra's birth was John F. Sweet, M.D., who, at all times

material hereto, was a "partici pating 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

. . . 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." § 766.302(2),

Fla. Stat. See also §§ 766.309(1) and 766.31(1), Fla. Stat.

4. In this case, it is undisputed that due to the natur al

forces associated with her vaginal delivery, Sierra suffered a

m echanical injury to the brain, a subarachnoid hemorrhage, w hich

precipitated an epidural hematoma, the compression of the left

temporal lobe, and a left temporal contusion (bruise), that left

an area of encephalomalacia. W hat is disputed , is whether

Sierr a's brain injury was the likely cause of her current

impairments, and whether Sierra is permanently and substantially

mentally and physically impaired. As to those issues,

Petitioners are of the view that the brain injury Sierra

sustained rendered her per manently and substantially mentally

and physically impaired. In contrast, NICA is of the view that

Sierra's impairments were not occasioned by the injury she

sustained at birth and, regardless of the etiology of her

impairments, Sierra is not permanently and substantially

mentally and physically impaired.

The etiology and significance

of Sierra's impairments

5. To address the etiology and significance of Sierra's

impairments, the parties offered medical records related to

Sierra's birth and subsequent development, and the testimony of

Dr. Michael Duchowny, a pediatric neurologist ; Dr. David Turell,

a pediatrician ; Dr. Eric Trumble, a pediatric neurosurgeon ;

Michelle Webster, an occupational therapist ; Bonnie Bear, a

speech language pathologist; and Mich ele Matteini, Sierra's

mother. 1

6. Dr. Duchowny, whose testimony was offered by

Respondent, is board - certified in pediatrics, neurology with

special competence in child neurology, and neurophysiology.

(Respondent's Exhibit K.) It was Dr. Duchowny's opin ion, based

on the results of his neurologic evaluation of Sierra on

January 19, 2005, and review of the medical records, that

Sierra's impairments were most likely developmentally based, and

unrelated to her brain injury. Dr. Duchowny was also of the

opin ion that Sierra did not have a substantial mental or

physical impairment. Dr. Duchowny explained his findings and

the basis for his opinions, as follows:

Q. Could you tell us . . . about the

neurological examination . . . ?

A. At the time of the examin ation, Sierra

was three years old. She exhibited behavior

that was both impulsive and overactive.

In fact, she was somewhat difficult to

evaluate just because of her high activity

level. I tried to have her sit in her

mother's lap, but she even then wou ld have

trouble sitting there in a consistent

fashion.

She was able to speak to me, but the speech

sounds were dysarthric, and her lexicon,

meaning the number of words that she had in

her vocabulary, were probably diminished

with respect to age matched co ntrols.

Q. . . . Could you please tell us what

dysarthric means in layman's terms ?

A. It means her speech was thick and

difficult to understand.

Q. What else did you observe during the

neurological examination?

A. Her understanding of informatio n was

clearly better. She knew colors and she

knew body parts without difficulty.

She tended to babble, but did not drool.

I evaluated her cranial nerve [s] . . .,

which means the nerves that serve her head

and neck, and found those to be normal.

There were eye movements that were quite

fluid and well - developed. Her pupils

reacted normally, and the back part of her

eye was also entirely normal.

With respect to motor functioning, there

were no problems with her strength. She had

good range of movement . There's no evidence

of weakness or loss of muscle bulk, and her

gait was quite stable and appropriate for

age. There is no evidence of gait

incoordination.

I thought that Sierra's reflexes were

symmetric and normal, and there were no

pathological re flexes.

Examination of the blood vessels supplying

the neck and head disclosed no significant

abnormalities, and there were no changes in

the temperature or pulses of blood vessels

supplying the neck and head.

Sierra had good manual dexterity, in that

sh e was able to construct a tower made of

eight cubes, and she used both hands in a

fluid manner and had very good dexterity

with regard to individual finger movements.

Her fine motor coordination was somewhat

immature, but she was able to accomplish

tasks without difficulty.

Q. Based on the records you reviewed and

the examination you conducted, were you able

to form an opinion regarding whether or not

Sierra has a substantial and permanent

physical impairment?

A. Yes. I believe the findings on

examina tion indicate that Sierra does not

have a substantial physical impairment.

Q. And what was the basis for that specific

opinion?

A. She's functioning very close to age

level with respect to her physical

abilities.

Q. With regard to your examination an d the

record s that you reviewed, did you form an

opinion regarding whether or not Sierra has

a substantial and permanent mental

impairment?

A. Yes. I further do not believe that

Sierra has a substantial mental impairment

either.

Q. Could you tell us w hat the basis of that

opinion specifically is?

A. Well, again, although she has an

expressive language disorder, her receptive

language skills were good, and I think that

she'll continue to improve in the future.

* * *

Q. Have all of your opinions been rendered

within a reasonable degree of medical

certainty?

A. Yes, they have.

* * *

CROSS EXAMINATION

* * *

Q. Would you agree that the left temporal

area of the brain is the area that's related

to speech?

A. In 92 percent of individu als, yes.

Q. Drumble's opinion is that her speech

delay is a mental impairment with anatomical

relationship to her area of

encephalomalacia. Do you have any reason to

differ with that opinion?

A. Yes. I believe that Sierra's speech

problems are d evelopmentally based and

unrelated to that anatomic defect.

Q. Explain what you mean by developmental?

A. That is based on brain maturation, not

on brain damage.

Q. And what's brain maturation?

A. Meaning that individuals can have

patterns of s trength and weaknesses based on

brain maturation, and it's different for

different individuals.

Q. And you're saying that's unrelated to

trauma or anything that occurred at birth?

A. That's correct.

Q. And there is no way to determine if that

is so, is it? There is no testing that

could be performed which would definitely

relate her speech delay to brain maturation?

A. First of all, she has other

developmental disorders, for example,

hyperactivity and attention deficit, so we

already know she has d evelopmental problems.

Secondly, her language problems mainly have

to deal with expressive language, which is

not located in the temporal lobe.

Q. Expressive language?

A. Yes.

Q. What do you mean by that?

A. Her ability to speak, as opposed to h er

ability to understand language.

Q. Her ability to speak is not related to

the left temporal lobe?

A. That's correct.

* * *

Q. You said in your direct testimony that

her fine motor coordination seems slightly

immature for her age. Would you e xpand on

that a little bit? What did you mean by

that?

A. This is another developmental finding.

When she put out her hands, she would

posture her fingers. Her ability to have

rapid alternating movement sequences was

slightly immature for her age. Th is is yet

another developmental finding. In other

words, it's related to brain immaturity, in

this case, for fine motor movement.

Q. . . . You commented in your report that

she is not yet toilet trained. Would that

be another developmental deficiency?

A. Yes.

Q. That would have nothing to do with brain

injury?

A. That's correct.

Q. You said that she does not demonstrate

ataxia. Did I pronounce that correctly?

A. Yes.

Q. Ataxia, which means incoordination,

correct?

A. Correct.

Notably, as will be seen from the testimony of Doctors Turell

and Trumble, Ms. Webster, and Ms. Bear, who were called to offer

testimony on behalf of Petitioners with regard to the likely

etiology or significance of Sierra's impairments, Dr. Duchowny's

opinions st and largely uncontroverted. 2

7. Dr. Turell is board - certified in pediatrics, and

practice s general pediatrics at Altamonte Pediatric Associates ,

Sierra's primary care provider until March 2004, when the family

transferred to another pediatric group. Ac cording to

Dr. Turell, and the records of Altamonte Pediatric Associates,

Sierra's development was age appropriate until approximately

April 1, 2003, when Sierra's mother voiced concerns about her

speech. Thereafter , on July 1, 2003, Dr. Turell diagnosed a

speech delay, but noted good comprehension, and referred Sierra

for speech therapy and audiology. Audiology reported normal

hearing and, according to Dr. Turell and the records of

Altamonte Pediatric Associates, apart from an expressive

language delay, Sierra's development continued to be normal,

including her receptive language functions. The records from

Sierra's subsequent provider were not offered at hearing.

8. Drumble is board - certified in adult and pediatric

neurosurgery, and first saw Sie rra on December 30, 2001, in the

neonatal intensive care unit at Arnold Palmer Hospital, where

she was transferred following delivery. There, Drumble was

consulted to review Sierra's CT scan, and decide whether the

epidural hemorrhage she suffered req uired evacuation. At the

time, Drumble was of the opinion that evacuation was not

required, and indeed the resulting hematoma and left temporal

contusion resolved, but left an area of encephalomalacia. As

for the etiology of Sierra's speech delay and the significance

of her impairment, Drumble offered the following

observations at hearing:

Q. Is there a relationship between . . . a

contusion to the left temporal area and the

speech delay that Sierra has sustained --

has demonstrated?

* * *

A. Okay. . . . [A]natomically, speech is

localized to the left temporal lobe in more

than 95 percent of the population, and so if

you were to pick an area of the brain to

cause a speech delay, you'd roughly pick

where Sierra's injury was. So a long answ er

to say yes.

Q. Is it your opinion, Doctor, that the --

that this was a neurological injury?

A. Yes.

Q. Was it a physical injury?

A. It was a brain injury, and the brain's

part of the body. So yes, it was clearly

physical.

Q. Is there a mental injury, mental

impairment resulting?

A. Yes.

Q. Is it substantial?

* * *

A. You know, "substantial" gets into the

subjective realm that I would defer to . . .

somebody else. If this were my child and

she was having speech issues, it would be

s ubstantial to me.

Q. All right. In your opinion, is this a

permanent injury?

A. Certainly the anatomical abnormalities

seen on the MRI are permanent. She will

probably always have some speech issues.

The hope is with therapy she will learn to

compen sate with -- for it.

Q. Do you have an opinion as to whether,

therefore, she has suffered both mental and

physical impairment from her epidural

hematoma which she suffered at birth?

A. Yeah, yes, she did.

Q. And is that opinion based on a

reasonable degree of medical certainty?

A. Yes.

* * *

CROSS EXAMINATION

Q. Doctor, what is the physical impairment?

A. Speech delay.

Q. Okay. So you consider that a physical

impairment, not a mental impairment?

A. I would consider it both, yeah. I m ean,

if you want to look at the physical

impairment, then you -- it depends if we

want to talk anatomical where she has -- you

know, based on the MRI she had 1/21/04 she

has a one centimeter left mid - temporal area

of encephalomalacia . . . . [That] specif ic

physical anomaly within the brain . . .

would be . . . most likely related to her

speech impairment.

Q. Okay. I think the part where we're

miscommunicating is I think you're talking

about a physical injury where I’m talking

about a physical impairm ent. Do you

understand the distinction?

A. I do -- no, I do not see any left - sided

-- or it's a left lesion, so any right - sided

weakness. I do not see any motor

abnormalities, if that is what you mean by a

physical impairment.

Q. That's where I was g oing, okay.

Dr. Duchowny who is a pediatric neurologist

testified that the temporal lobe is

associated with receptive language ability

and the frontal lobe is associated with

expressive language ability. Do you

disagree with that or agree with that?

A. . . . [T]he difference between the two

areas . . . is not as hard wired in children

as it is in adults. So . . . while I would

say that in general that is true, in any

individual patient there is overlap.

Q. Okay. So what you're saying is that if

it's an adult the temporal lobe deals with

receptive language ability and the frontal

lobe deals with expressive language ability,

but because children's brains are more

malleable, there's some overlap in the

temporal lobe that could affect both?

A. Correct.

Notably, when called upon to describe the physical impairment

caused by Sierra's brain injury, Drumble agreed that no

physical impairment ensued, and he declined to offer an opinion,

within a reasonable degree of medical certainty, whether

Sierra's mental injury (an expressive language delay ) was

substantial. 3

9. Ms. Webster is an occupational therapist, and has been

working with Sierra for approximately one year. Currently, they

are working on Sierra's fine motor skills, which Ms. Webster

describ es as "[ b ] elow - average skills for grasping for her age

level, " but their main focus is on sensory integration skills.

According to Ms. Webster, Sierra's d ifficulties in sensory

integration skills include auditory processing, vestibule

processing (sense of balance), touch processing, multisensory

processing, and oral sensory processing. 4 Related issues include

impulsive and overactive behavior (hyperactivity) , and a low

attention span (attention deficit) . Ms . Webster offered no

opinion as to the etiology of Sierra's fine motor impairment o r

of the etiology of Sierra's sensory integration skill deficit s ,

and offered no opinion regarding the significance or permanence

of those disorders .

10. Ms. Bear is a speech language pathologist, and has

worked with Sie rra since December 2003. According to Ms. Bear,

she last saw Sierra on August 10, 2005, at which time Sierra

evidenced a "severe deficit in articulation" ( an expressive

language deficit ), but her receptive language skills were within

normal limits for her age. With regard to Sierra's expressive

language deficit , Ms. Bear noted that Sierra currently had a

lexicon of about 40 words, when a normal range would be "over

100 . . . maybe 125." However, Ms. Bear also observed that with

an additional 18 to 24 mon ths of therapy, it was likely Sierra's

expressive language would be within 6 months of her

chronological age. Ms. Bear offered no opinion regarding the

etiology of, or any other opinion regarding the significance or

permanence of, Sierra's expressive lang uage d isorder .

11. In this case , there is no reason to credit

Dr. Trumble's opinion regarding the etiology of Sierra's

expressive language disorder , over the opinion of Dr. Duchowny .

Indeed, as between the two, Dr. Duchowny's opinion was the more

compell ing. Moreover, there was a d ear th of proof , apart from

the opinion of Dr. Duchowny , as to the likely c ause of Sierra's

other deficits. Finally , regardless of the etiology of Sierra's

deficits , she is not permanently and substantially mentally or

physical ly impaired. 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 had 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 psychiatric

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

testimony without a reasonable explanation.")

CONCLUSIONS OF LAW

12. The Division of Administrativ e Hearings has

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

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

13. The Florida Birth - Related Neurological Injury

Compensation Plan was established by the Legislature "for the

purpose of provi ding 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.

14. The injured infant, her or his personal

representative, parents, dependents, an d 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 Associat ion, 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 neurologi cal injury."

§ 766.305(4), Fla. Stat.

15. 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 j udge 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.

16. 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 wa s 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 postdelivery

period in a hospital; or by a certified

nurse midwife in a teaching hospital

supervised by a participating physician in

the course of labor, deliv ery, or

resuscitation in the immediate postdelivery

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

obst etrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

17. 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 cor d 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, delive ry,

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 cau sed by genetic or

congenital abnormality.

18. As the proponent of the issue, the burden rested on

Petitioners to demonstrate that Sierra suffered a "birth - related

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 before an administrative tribunal.")

19. Here, the proof failed to support the conclusion tha t,

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

result of a brain or spinal cord injury caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital, or that Sierra was permanently and

substantially mentally and physically impaired. Consequently,

given the provisions of Section 766.302(2), Florida Statutes,

Sierra does not qualify for coverage under the Plan. See also

§§ 766.309(1) and 7 66.31(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 those subjects clearly embraced within its terms."),

approved , Florida Birth - Related Neurological Injury Compensation

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

Florida Birth - Related Neurological Injury Compensation

Association v. Florida Division of Admi nistrative 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.)

20. Where, as here, the administrative law judge

determines that ". . . the i njury 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. 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

Michele Mattei ni and Russell Matteini, on behalf of and as

parents and natural guardians of Sierra Matteini, a minor, is

dismissed with prejudice.

DONE AND ORDERED this 26th day of September, 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 26th day of September, 2005.

ENDNOTES

1/ Respondent also offered the testimony of Dr. Donald Willis,

a physician board - certified in obstetrics and gynecology, as

well as maternal - fetal medicine. (R espondent's Exhibit L.)

However, Dr. Willis' opinions were limited to the likely cause

of Sierra's brain injury, and he offered no opinion on the

etiology or significance of Sierra's impairment.

2/ Petitioners also offered the testimony of Mrs. Mattein i

regarding Sierra's developmental delays, sensitivity issues, and

frustrations. These issues have been adequately addressed by

other witnesses, and Mrs. Matteini's testimony will not be

individually addressed.

3/ On August 4, 2004, Drumble wrote an addendum to a letter

of January 29, 2004, he had written to Sierra's pediatrician

(Dr. Turell) that illustrates the misunderstanding Drumble

harbored regarding the relationship between brain injury and

physical impairment, as those terms are used in the Plan. In

that addendum, Drumble wrote:

I have spoken with Sierra's attorney today.

I have expressed the opinion that the area

of encephalomalacia is secondary to her

epidural hematoma, which she suffered at

birth. This is a permanent injury an d is

expected to be visible on every MRI she has

in the future. Her speech delay is a mental

impairment whose anatomical relationship is

with her area of encephalomalacia.

Therefore, Sierra has suffered both mental

and physical impairment from her epidur al

hematoma, which she suffered at birth.

(Petitioners' Exhibit 2 .)

4/ When asked to explain what was meant by "sensory

integration," Ms. Webster responded:

I work on some of the sensory skills that

Sierra is having problems processing and how

she modu lates herself and organizes herself.

And I work with those skills to help her to

function more in her environment . . . .

(Transcript, page 28.)

When asked what she meant by "processing," Ms. Webster

responded:

It's just how she interprets the informat ion

that she's being given through her body.

She may under - interpret it or over - interpret

it. (Transcript, page 29.)

COPIES FURNISHED :

(Via certified mail)

Henry W. Jewett, II, Esquire

Rissman, Weisberg, Barrett, Hurt,

Donahue & McLain, P.A.

201 Eas t Pine Street, 15th Floor

Orlando, Florida 32801

(Certified Mail No. 7099 3400 0010 4399 3038)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

1435 Piedmont Drive, East, Suite 101

Tallahassee, Flori da 32308

(Certified Mail No. 7099 3400 0010 4399 3021)

George W. Tate, III, Esquire

Broad & Cassel

Post Office Box 4961

Orlando, Florida 3280 2 - 4961

( Certified Mail No. 7099 3400 0010 4399 3014)

Elihu H. Berman, Esquire

Elihu H. Berman, P.A.

509 South Martin Luther King, Jr., Avenue

Clearwater, Florida 33756 - 5607

(Certified Mail No. 7099 3400 0010 4399 3007)

John F. Sweet, M.D.

Advanced Women's Health Specialists

4106 Lake Mary Boulevard, Suite 110

Lake Mary, Florida 32746

(Certified Mail No. 7099 34 00 0010 4399 2994)

Orlando Regional South Seminole Hospital

555 West State Road 434

Longwood Park, Florida 32750

(Certified Mail No. 7099 3400 0010 4399 2987)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Ba ld Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7099 3400 0010 4399 2970)

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 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.