05-003726N Vanel Jocelyn And Claudette Lafleur, Individually, And As Parents And Natural Guardians For Job Jocelyn, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, May 23, 2006.

Summary: Indisputably the infant`s impairments were not caused by a brain or spinal cord injury during birth and, whatever the cause, the infant was not substantially mentally and physically impaired. The motion for summary final order of dismissal is granted.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VANEL JOCELYN AND CLAUDETTE )

LAFLEUR, individually, and as )

parents and natural guardians )

for JOB JOCELYN, a minor, )

)

Petitioner s , )

)

vs. ) Case No. 05 - 3726N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATIO N, )

)

Respondent, )

)

and )

)

UNIVERSITY OF MIAMI, d/b/a )

MILLER SCHOOL OF MEDICINE and )

PUBLIC HEALTH TRUST OF MIAMI - )

DADE COUNTY, d/b/a JACKSON )

MEMORIAL HOSPITAL, a/k/a )

JACKSON HEALTH SYSTEM, )

)

Intervenor s . )

)

FINAL SUMMARY ORDER OF DISMISSAL

This cause came on for consideration of Respondent's Motion

for Summary Final Order, served January 24, 2006.

STATEMENT OF THE CASE

1. On October 11, 2005, Vanel Jocelyn and

Claudette Lafleur, individually, and as parents and natural

guardians of Job Jocelyn (Job), a minor, filed a petition

(claim) with the Division of Administrative Hearings (DOAH) to

resolve whether Job suffered an injury compensable under the

F lorida Birth - Related Neurological Injury Compensation Plan

(Plan).

2. DOAH served the Florida Birth - Related Neurological

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

on October 12, 2005, and on December 29, 2005, following an

extension of time within which to do so, NICA filed its response

to the claim , denied that Job suffered an injury compensable

under the Plan, and requested a hearing be scheduled to resolve

the issue of compensability. Such a hearing was duly - noticed

for June 19 an d 20, 2006.

3. In the interim, on January 24, 2006, NICA served a

Motion for Summary Final Order, pursuant to Section

120.57(1)(h), Florida Statutes. 1 The predicate for NICA's motion

was its assertion that, indisputably, Job's physical impairment ,

a left Erb's Palsy , was caused by an injury to his left brachial

plexis, not the brain or spinal cord; that his expressive

language delay was most likely developmentally based and not

related to a birth injury; and that Job did not suffer a

substantial mental or physical impairment. Attached to NICA's

motion was an affidavit of Michael Duchowny, M.D., a pediatric

neurologist, who evaluated Job on January 25, 200 5 .

4. Dr. Duchowny reported the results of his neurologic

evaluation, as follows:

NEUROLOGICAL EXAM INATION reveals Job to be

alert cooperative and socially interactive.

He displays an age appropriate level of

curiosity and is quite playful. His

behavior seemed appropriate and he had a

good attention span for age. He spoke in

only single words. He kn ew body parts but

could not identity colors. I could not

evaluate his speech articulation. Cranial

nerve examination revealed full visual

fields to direct confrontation testing. The

pupils are 3 mm and react briskly to direct

and consensually presented light. Job

blinks to threat from directions. The

funduscopic examination was brief but

appeared normal. The extraocular movements

are full and conjugate. Visual fields are

intact bilaterally. There are no facial

asymmetries. The uvula is midline. Th e

pharyngeal folds are symmetric. The tongue

is moist and papillated and moves well in

all directions. There is no drooling.

Motor examination reveals an obvious

asymmetry of the upper extremities. There

is loss of muscle bulk at the left shoulder

and arm to a lesser degree the left forearm.

The hands and fingers appear symmetric. Job

cannot elevate the left arm more than 10

degrees above the horizontal plane and

apparently cannot raise it over his head.

He tends to maintain a posture of adduction,

i nternal rotation and flexion at the

shoulder with elbow and to a lesser degree

wri st flexion. The r e is slight ulnar

deviation of the left hand. He has

difficulty supinating the left hand. There

is a good individual finger dexterity

bilaterally. Job can grasp a cube with

either hand using fine motor coordination

and transfer s readily. He tends to

repeatedly prefer the right and will cross

the midline. He is able to build a tower of

cubes using the right hand with the left

providing support. In contras t there are no

asymmetries of strength, bulk or tone of the

lower extremities. There is a healed

cutaneous burn scar over the dorsum of the

left foot. Sensory examination revealed

suspected diminished left arm movement in

response to painful stimulation of the left

arm in the C5 and C6 dermatomes. His hand

and reflexes are asymmetric and that the

left biceps and brachioradialis are trace

compared to 2 on the righticeps are

bilaterally 1 and knee jerks and ankle

jerks are 2 bilaterally. Both plan tar

responses are downgoing. The stance is

relatively narrowly based and Job walks in a

stable fashion with an obvious upper

extremity asymmetry of movement. There is

decreased muscle bulk in the medial scapular

region with mild left scapular winging. I

could not formally assess cerebellar

coordination. Neurovascular examination

reveals no cervical, cranial or ocular

bruits and no temperature or pulse

asymmetries.

In SUMMARY, Job's neurologic examination

demonstrates findings consistent with a left

Erb 's Palsy involving the C5 and C 6 roots of

the brachial plexus. He has left upper

extremity and left shoulder atrophy and

probably loss of sensation in the C5 and C6

dermatomes . I regard the findings to be

most likely permanent and agree that

surgical the rapy would have little to offer

at this point. Job also manifests

expressive language delay that in all

likelihood is developmentally based. I

suspect that this will improve significantly

in the future.

5. B ased on his neurologic evaluation and review of the

medical records, Dr. Duchowny opined that:

5. It is my opinion that JOB JOCELYN

suffers from neither a substantial mental

nor motor impairment originating within the

central nervous system. (The central

nervous system is commonly understood to

mea n that portion of the nervous system

consisting of the brain and spinal cord).

Rather, his neurologic impairment originates

in the left brachial plexus and constitutes

a peripheral nerve injury. He has a left

Erb's Palsy involving the C - 5 and C - 6 nerve

r oots, and his deficits are the probable

loss of sensation in the C - 5 and C - 6

dermatomes. These findings are most likely

permanent and would not be considered

substantial.

6. JOB also manifests expressive language

delay that in all likelihood is

developm entally based, and does not derive

from any birth - related neurological injury.

I expect that this will improve

significantly in the future. I do not

believe that this mental impairment is

either permanent [] or substantial.

7. As such, it is my opinion that JOB

JOCELYN is not permanently and substantially

mentally and physically impaired due to

oxygen deprivation or mechanical injury

occurring during the course of labor,

delivery or the immediate post - delivery

period in the hospital during the birth of

J OB JOCELYN.

6 . On February 3, 2006, Intervenor University of Miami

filed a Response in Opposition to NICA's Motion for Summary

Final Order, noting it had not had an opportunity to obtain

discovery on the issue of compensability , and requested that

NICA's motion be summarily denied. NICA's motion and the

University of Miami's response were addressed by Order of

February 13, 2006, as follows:

1. Ruling on Respondent's Motion for

Summary Final Order is deferred until

April 14, 2006, to accord the parties t he

opportunity to complete any discovery they

feel appropriate, and to file any further

response to Respondent's Motion for Summary

Final Order they feel may be appropriate.

Thereafter, Respondent's motion will be

addressed without further delay.

2. Int ervenor's request that Respondent's

motion be "summarily denied" is DENIED.

Thereafter, at the University of Miami's request, ruling on

NICA's motion was deferred until May 18, 2006. 2

7. On May 17, 2006, the University of Miami filed its

Response to NICA 's Motion for Summary Final Order, and on

May 19, 2006, a copy of Dr. Duchowny 's deposition, taken May 2,

2006. Petitioners and the Public Health Trust did not respond

to NICA's motion, and no further evidence was offered (by

affidavit, deposition, or oth erwise) to address the issues

raised by NICA's motion.

8. With regard to Dr. Duchowny 's deposition, it is noted

that the opinions expressed by Dr. Duchowny were wholly

consistent with those expressed in his affidavit and report of

neurologic evaluation, h eretofore discussed. Briefly stated,

based on his evaluation and review of the medical records,

Dr. Duchowny opined that there was no evidence that Job suffered

a n injury to the brain or spinal cord (the central nervous

system) during birth; that the only physical impairment Job

evidence d was a left Erb's Palsy (which likely resulted from an

injury to the left brachial plexus during delivery); that the

only evidence of mental impairment was an expressive language

delay, that was likely developmentally base d (related to brain

immaturity, as opposed to injury) , and w ould likely improve; and

that Job was neither substantially mentally nor substantially

physically impaired.

9. With regard to Dr. Duchowny's opinions and the

University of Miami's position on NIC A's motion, the University

of Miami noted the following in its response:

5. On May 2, 2006, Dr. Duchowny's

deposition was taken, wherein he reiterated

his opinion that Job did not suffer any

substantial mental impairment and that any

injuries suffered by Job related to the

peripheral nervous system, not the central

nervous system . . . . Dr. Duchowny also

refuted the Petitioners' allegation [in

their petition] that Job suffered from

hypoxic ischemic encephalopathy, which he

defined as "[b]rain damage caus ed by lack of

oxygen, lack of blood supply or both."

. . . Dr. Duchowny testified that, although

the physicians at Jackson Memorial Hospital

might have suspected that there was a

central nervous system injury such as

hypoxic ischemic encephalopathy, s uch

suspicions were inconsistent with his

findings after his evaluation of the patient

and the records of the physical therapists

and subsequent treaters whose records he

reviewed. . . . Dr. Duchowny further

testified that, had Job sustained a brain

injur y, such injury would have manifested

itself when he evaluated Job at age 2 and

would not manifest later in time. . . . As

no structural brain injury was found during

this evaluation of Job, Dr. Duchowny was

confident that Job did not sustain any such

inju ry as a result of the labor and delivery

process. . . .

6. The University of Miami agrees with

Dr. Duchowny's determination that Job did

not sustain any significant neurological

injuries, including hypoxic ischemic

encephalopathy, at or around the tim e of his

birth. The Petitioners, however, maintain

[in their petition] that Job did suffer such

injuries and rely on Jackson Memorial

Hospital's medical records as a basis for

that contention. To the extent that the

DOAH determines that the references in the

medical records to neurological injuries

contain any evidentiary value, the DOAH

should find there are genuine issues of

material fact and elect to resolve the issue

of compensability at the final hearing. If,

on the other hand, the DOAH agrees with Dr.

Duchowny that the references merely reflect

the physicians unconfirmed suspicions

regarding Job's diagnosis and that the

evidence in the record does not otherwise

support a finding of compensability, NICA's

motion should be granted . . . .

10. The hospital records the University of Miami

refer enced, were attached to Dr. Duchowny's deposition and are

the only hospital records submitted in this case . Of note,

those records consist of three consultation reports (of

September 26, 2002, September 27, 20 02, and September 30, 2002) ,

which reflect a diagnosis of perinatal asphyxia and

hypoxic/ischemic encephalopathy (HIE) , as the likely cause of

Job's difficulties immediately following birth. As for Job's

subsequent development, there is no evidence to con tradict the

opinions of Dr. Duchowny that Job's current presentation fails

to reveal any evidence of an injury to his central nervous

system or that Job is not substantially mentally or physically

impaired. Consequently, given the record, it is in disputab le

that, while Job evidences some neurologic impairment, it was not

related to a brain or spinal cord injury that occurred during

labor, delivery, or resuscitation. Moreover, regardless of the

origin of his impairments, Job is not permanently and

substant ially mentally and physically impaired. Therefore,

NICA's Motion for Summary Final Order is well - founded. 3

§§ 120.57(1)(h), 766.302(2), and 766.309, Fla. Stat.

CONCLUSIONS OF LAW

11 . The Division of Administrative Hearings has

jurisdiction over the part ies to, and the subject matter of,

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

12 . 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.

13 . The injured "infant, her or his personal

representative, parents, dependents, and next of kin," may seek

compensation un der 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 Pla n, 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), Fl a. Stat.

1 4 . 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

bee n 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.

1 5 . 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 in jury. 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 i n

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 delive red by a participating physician

at birth." § 766.31(1), Fla. Stat.

1 6 . 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 gra ms 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

postdeli very 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 7 . Here, indisputably, Job' s neurologic impairment was

not caused by an injury to the brain or spinal cord , caused by

oxygen deprivation or mechanical injury occurring in the c ourse

of labor, delivery, or resuscitation, and, whatever the cause,

he is not pe rmanently and substantially mentally and physically

impaired. Consequently, given the provisions of Section

766.302(2), Florida Statutes, Job does not qualify for coverage

under the Plan. See also Florida Birth - Related Neurological

Injury Compensation As sociation 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 - Rela ted Neurological

Injury Compensation Association v. McKaughan , 668 So. 2d 974,

979 (Fla. 1996).

1 8 . 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 Statement of the Case and

Conclusions of Law, it is

ORDERED that Respondent's Motion for Summary Final Order is

granted, and the petition for compensation filed by

Vanel Jocelyn and Claudette Lafleur, individually and as parents

and natural guardians of Job Jocelyn, a minor, be and the same

is dismissed with prejudice.

It is further ORDERED that the hearing scheduled for

June 19 and 20, 2006, is cancelled.

D ONE AND ORDERED this 23rd day of May, 2006 , 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 23rd day of May, 2006 .

ENDNOTES

1 / Pertinent to this case, Section 120.57(1)(h), Florida

Statutes, provides:

(h) Any party to a proceeding in which an

administrative law judge of the Division of

Administrative Hearings has final order

authority may move for a summary final order

when there is no genuine issue as to any

material fact. A summary final order shall

be rendered i f the administrative law judge

determines from the pleadings, depositions,

answers to interrogatories, and admissions

on file, together with affidavits, if any,

that no genuine issue as to any material

fact exists and that the moving party is

entitled as a matter of law to the entry of

a final order . . . .

2 / On April 10, 2006, the University of Miami filed an Agreed

Motion to Defer Ruling on NICA's Motion for Summary Final Order.

That motion was addressed by Order of April 12, 2006 , as

follows:

ORDERE D that Intervenor's motion is granted

and ruling on Respondent's Motion for

Summary Final Order is deferred until

May 12, 2006, to accord the parties the

opportunity to complete any discovery they

feel appropriate, and to file any further

response to Respo ndent's Motion for Summary

Final Order. Thereafter, Respondent's

motion will be addressed without further

delay.

On May 12, 2006, the University of Miami filed a Motion for

Extension of Time to Respond to NICA's Motion for Summary Final

Order. That moti on was addressed by Order of May 18, 2006, as

follows:

ORDERED that Intervenor's motion is granted

and the parties are granted until May 17,

2006, to file any response to NICA's Motion

for Summary Final Order. Thereafter, NICA's

motion will be addressed without further

delay.

3/ Notably, when, as here, the "moving party presents evidence

to support the claimed non - existence of a material issue, he . .

. [is] entitled to a summary judgment unless the opposing party

comes forward with some evidence which w ill change the result;

that is, evidence to generate an issue of material fact. It is

not sufficient for an opposing party merely to assert tha t an

issue does exist." Turner Produce Company, Inc. v. Lake Shore

Growers Cooperative Association , 217 So. 2d 856, 861 (Fla. 4th

DCA 1969). Accord , Roberts v. Stokley , 388 So. 2d 1267 (Fla. 2d

DCA 1980); Perry v. Langstaff , 383 So. 2d 1104 (Fla. 5th DCA

198 0 ).

COPIES FURNISHED:

(Via C ertified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neuro logical

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7002 2030 0006 4479 5418)

Jon M. Herskowitz, Esquire

The Herskowitz Law Firm

One Datran Center, Suite 1404

9100 South Dadeland Boulev ard

Miami, Florida 33156

(Certified Mail No. 7002 2030 0006 4479 5425)

David W. Black, Esquire

Frank, Weinberg & Black, P.L.

7805 Southwest Sixth Court

Plantation, Florida 33324

(Certified Mail No. 7002 2030 0006 4479 5432)

Ronald J. Bernstein, Esquire

Stephen P. Clark Center

111 Northwest 1st Street, Suite 2810

Miami, Florida 33128

(Certified Mail No. 7002 2030 0006 4479 5449)

James D. DeChurch, Esquire

Fowler, White, Burnett, P.A.

Espirito Santo Plaza, 14th Floor

1395 Brickell Avenue

Miami, Florida 33131 - 3302

(Certified Mail No. 7002 2030 0006 4479 5456)

Victor Gonzalez - Quintero, M.D.

1611 Northwest 12th Avenue

Miami, Florida 33136

(Certified Mail No. 7002 2030 0006 4479 5463)

Jackson Memorial Hospital

University of Miami

1611 Northwest 12th Ave nue

Miami, Florida 33136

(Certified Mail No. 7002 2030 0006 4479 5470)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7002 0860 0000 9192 8079)

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 A ppellate 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 re viewed.