06-003753N Dashea Jackson And Ifagbemi Olamina, On Behalf Of And As Parents And Natural Guardians Of Monifa Olamina, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, May 18, 2007.

Summary: The proof failed to demonstrate the infant`s impairments resulted from a brain or spinal cord injury caused by oxygen deprivation or mechanical injury occurring during labor, delivery or resuscitation. The claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DASHEA JACKSON AND IFAGBEMI )

OLAMINA, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF MONIFA OLAMINA, A MINOR , )

)

Petitioner s , )

)

vs. ) Case No. 06 - 3753N

)

FLORIDA BIRTH - RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOC IATION , )

)

Respondent . )

)

FINAL ORDER

With the parties' agreement, this claim was resolved based

on the testimony provided and exhibits received into evidence at

a h earing held March 20, 2007, in Gainesville, Florida, and the

parties' Stipulated Record, filed May 3, 2007.

APPEARANCES

For Petitioners: Dashea Jackson , pro se

Ifagbemi Olamina , pro se

951 A Southeast 4th Street

Gainesville, Florida 32601

For Respondent: Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Monifa Olamina, a minor, qualifies for

coverage under the Florida Birth - Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On October 3, 2006, Dashea Jackson and Ifagbe mi Olamina, on

behalf of and as parents and natural guardians of Monifa Olamina

(Monifa) , a minor, filed a petition (claim) with the Division of

Administrative Hearings (DOAH) for compensation under the Plan.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Associat ion (NICA) with a copy of the claim on

October 4, 2006, and on January 2, 2007, following an extension

of time within which to do so, NICA responded to the claim, and

gave notice that it was of the view that Monifa did not suffer a

"birth - related neurologi cal injury," as defined by Section

766.302(2), Florida Statutes, and requested that a hearing be

scheduled to resolve the issue.

Pursuant to notice, such a hearing was convened on

March 20, 2007, and Petitioners presented the testimony of

Dashea Jackson, I fagbe mi Olamina, and Wende Smith - Ogunlano, and

Respondent's Exhibits 1 and 2 were received into evidence.

Then, at the Petitioners' request , the hearing was adjourned to

accord Petitioners the opportunity to seek representation and

additional medical info rmation. Thereafter, on April 18, 2007,

a status conference was held with Petitioner Dashea Jackson and

Respondent's counsel , at which the parties agreed no further

hearing was necessary and that they would submit a stipulated

record , with any additional evidence.

On May 3, 2007, the parties filed a Notice of Filing

Stipulated Record, which provided:

COME NOW, Petitioners, DASHEA JACKSON and

IFAGBEMI OLAMINA and Respondent, FLORIDA

BIRTH - RELATED NEUROLOGICAL INJURY

COMPENSATION ASSOCIATION

("NICA")(collect ively the "Parties"), and

state:

A. The Parties submit and stipulate to the

entry into evidence the following documents:

1. Affidavits of Records Custodian of

Putnam Community Medical Center and

accompanying medical records for Dashea

Jackson and Monif a Olamina filed by the

Respondent with DOAH on March 13, 2007 .

These records were accepted into evidence at

the March 20, 2007 , hearing as Respondent's

Exhibits 1 and 2.

2. Medical records from Shands at the

University of Florida for Monifa Olamina

file d by Respondent with DOAH on March 13,

2007.[ 1 ]

3. Report dated February 13, 2007, from

Charles A. Williams, M.D., Division of

Genetics, Department of Pediatrics, Shands

Children's Hospital. The Parties agree that

a true and correct copy is attached her eto

as Exhibit 1.

4. Correspondence dated March 14, 2007,

from Michael Duchowny, M.D., with Miami

Children's Hospital. The Parties agree that

a true and correct copy is attached hereto

as Exhibit 2.

B. The Parties further stipulate to the

entrance o f the following documents subject

to the acknowledgement that the following

documents are hearsay:[ 2 ]

5. Affidavit and accompanying report by

Donald C. Willis, M.D. The original of this

document was filed with DOAH on March 13,

2007. A copy of this doc ument is attached

hereto as Exhibit 3.

6. Affidavit and accompanying report by

Michael Duchowny, M.D. The original of this

document was filed with DOAH on March 13,

2007. A copy of this document is attached

hereto as Exhibit 4.

C. The Parties hereby agree that the

Administrative Law Judge may make his

determination in this matter based on the

testimony provided and documents received

into evidence at the March 20, 2007,

hearing, and the above - listed documents

without conducting a further hearing in th is

matter.

FINDINGS OF FACT

Stipulated facts

1. Dashea Jackson and Ifagbe mi Olamina are the natural

parents and guardians of Monifa Olamina, a minor. Monifa was

born a live infant on July 3 1, 2002, at Putnam Community Medical

Center, a hospital located in Palatka, Florida, and her birth

weight exceeded 2,500 grams.

2. The physician providing obstetrical services at

Monifa's birth was Michael Akhiyat, 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.

Monifa's birth and immediate newborn course

3. At or about 2:30 a.m., July 31, 2002, Mrs. Jackson,

with an estimated delivery date of August 12, 2002, and the

fetu s at 38 weeks' gestation, was admitted to Putnam Community

Medical Center, with complaints of contractions since

10:20 p.m., July 30, 2002. At the time, strong, regular

contractions (at a frequency of 1 - 2 minutes) were noted; the

membranes were intact; va ginal examination revealed the cervix

at 9 centimeters dilation, 100 percent effacement, and the fetus

at 0 station; and fetal monitoring was reassuring for fetal

well - being, with fetal heart rate in the 110s, with variability

present.

4. At 2:50 a.m., fe tal heart rate continued in the 110s,

with long term variability and accelerations present; at

2:53 a.m., Mrs. Jackson's membranes were artificially ruptured,

with clear fluid noted; and soon thereafter an ISE (internal

scalp electrode) was applied, IVF (i ntravenous fluid) bolus was

started, and 0 2 (oxygen) per mask was given. At 3:00 a .m.,

variable deceler ations were noted, with pushing; at 3:05 a.m.,

complete cervical dilation was documented; and at 3:09 a.m.,

Monifa was delivered, with vacuum assistance .

5. Upon delivery, Monifa was bulb - suctioned, given blow - by

oxygen, and accorded tactile stimulation. Apgar scores were

noted as 5 and 8, at one and five minutes, respectively. 3

6. Following stabilization, Monifa was transferred to the

newborn nursery, where she was received at 3:17 a.m., and where

she remained until discharged with her mother on August 1, 2002.

In the interim, Monifa's new born course was normal, except for

a sacral dimple and evidence of segmentation abnormalities,

noted August 1, 20 02. Given those issues, an appointment was

made at Shands Children's Hospital at the University of Florida

(Shands) for August 5, 2002, for an ultrasound of back and x - ray

of spine (lumbar and sacral) , and on discharge instructions were

given to follow - up with the appointment.

7. As instructed, Mrs. Jackson presented with Monifa at

Shands on October 5, 2002. Ultrasound Lumbar and Sacral, noted

the following findings and impression:

FINDINGS: Clinical History: Ultrasound

examination of the lower spine w as done in

this patient with a sacral dimple and the

history of segmentation anomalies. There

are no prior studies for comparison.

Discussion: The spinal cord ends at about

L2, a normal level. There is no evidence of

tethering or a lipoma in the cord o r nerve

roots. There is no focal meningocele.

IMPRESSION: Examination of the lower spine

is normal.

Monifa's subsequent development

8. On August 19, 2002, Monifa was admitted to Shands on

referral from her primary care doctor (Dr. Marcie Howard) f or

failure to thrive. At the time, the history of her illness was

noted as follows:

. . . The patient has had difficulty breast

feeding and has been losing weight, although

she has had a reasonable number of wet

diapers and appears to try to take the

brea st, it is difficult to estimate how much

she is getting. Her mother does indicate

she tries to feed her about every two hours

and that she latches on, but only for about

15 or 20 minutes and then does seem to have

some difficulty staying on task. She oft en

falls asleep. There is no spitting up,

vomiting, diarrhea or emesis.

Her weights have been six pounds at birth,

four pounds eleven ounces on day six, four

pounds eight ounces on day sixteen and four

pounds fourteen ounces on day 19. That was

measured at the scale in Dr. Howard's

office. Her mother has tried to give her

formula and been unsuccessful. She

otherwise seems to [be] fine to her mother

. . . .

9. Monifa was discharged from Shands on August 28, 2002.

At the time, her Discharge Summary d escribed Monifa's hospital

course, as follows:

The patient was admitted to evaluate for

poor feeding and the decrease in body weight

. . . . OT, PT, Lactation and Nutrition

consults were involved, and the patient was

evaluated poor sucking coordination.

Patient was once NPO, then NG tube inserted

to feed formula . . . . BMP, thyroid,

ammonia, urine organic acid/serum amino acid

were sent originally, and all showed normal

and urine organic acid/serum amino acid,

which are still pending. Brain MRI was don e

with normal findings . . . . Patient's body

weight was increased from 2,212 gm on

admission to 2,762 gm today. We also sent

HIV antibody which showed a negative, and a

chromosome karyotype type which is still

pending. Sara Plager was consulted to

eval uate for swallow study, and at this

point, she did not feel it was necessary to

have one. Because of her cardiac murmur, we

took chest x - ray and the EKG to discharge

home, which both showed within normal

limits. We also consulted with

Developmental Evalu ation Intervention to

setup to see Monifa after discharge home.

Patient noted DC home with NG tube feeding

. . . and they will follow - up with primary

care provider.

Monifa was fed via NG tube for approximately 6 months , 4 and then

transitioned to a bottle . Of note, following discharge from

Shands, Monifa did not require re - hospitalization.

10. On May 21, 2004, Monifa was seen at the Pediatric

Neurology Clinic , Shands Children's Hospital, for developmental

delay. Dr. Paul R. Carney , a pediatric neurologi st, reported

the results of his evaluation, as follows:

Monifa is a 1 - 9/12 year - old African - American

female seen at today's Pediatric Neurology

Clinic for her developmental delay. She is

accompanied to clinic by her mom who

provides the history. Her mom states that

presently at 21 months of age the baby can

scoot and the baby may sit in a tripod

fashion for approximately two minutes. The

baby is unable to get herself into a sitting

position. She currently says "Dada" and

will point. Other than that she is not

crawling, is not making gains towards

pulling herself up or moving towards

walking. She has been in therapy. Mom

reports that the child has undergone an EEG

in October 2003. It was abnormal with

slowing and disorganization, nonspecific

cortical neuro dysfunction.

* * *

Review of systems: Mom de s cribes her as

basically being healthy. Developmental

history has been her marked area of concern

in which she only rolled over at 7 months

and has just now started to tripod with some

assistance.

* * *

On exam the baby has a height of 79.0 cm,

weight of 9.1 kg, head circumference of 44

cm which is less than the 5th percentile.

. . . On general exam HEENT reveals a

closed anterior fontanel, microcephalic

child with marked [a]symmetrical face.

. . . Baby is noted to have multiple

Mongolian spots on back. It is unclear if

baby has cafe au lait spots. . . .

Specifically on nerve exam, one of the most

striking features about this child is her

asymmetrical face. She has decreased

movement of h er right upper face as well as

her lower face. She is noted to have

drooling from her face on the right, widened

palpebral fissure. The pupils are equal,

round, and reactive to light. She does

demonstrate full extra o cular movements.

Tongue is noted to be midline. Motor exam

is most noticeable for marked hypotonia.

Baby has significant head lag, given her age

of 21 months of age. The baby, though, is

noted to have positive brisk reflexes in

lower extremities and upper extremities as

well. Sensory is grossly intact.

Cerebellar reveals no tremor when reaching

out for objects.

Impression: The patient is presenting most

likely with a central nervous system

disorder. Given the presence of brisk

reflexes and her low tone, we have concern

that she may have had an intrauterine stroke

that was not apparent on the first MRI that

was done when she was a few weeks of age. A

stroke - like finding on MRIs could certainly

explain her asymmetrical face and may

indicate that there was some type of

distress which h as been a cause for her

developmental delay.

Plan: At this time we will repeat an MRI.

We will send labs for a CMP, urine organic

acid, and plasma amino acids. We will

follow her back in clinic following these

studies to further review [with] the

m om. . . .

11. The brain MRI was done July 9, 2004, and noted the

following findings and impressions:

Findings: Current study demonstrates

striking cerebellar and pontine atrophy.

There is a suggestion that the spinal cord

is on the lower limits of si ze as well. In

retrospect, the previous MR demonstrated a

somewhat small cerebellum and cerebrum.

These changes were not striking enough at

that time to call abnormal. However,

finding is more pronounced when compared to

the current exam. No hydrocepha lus, focal

lesion, or intra - axial or extra - axial fluid

collections are seen.

IMPRESSION: Striking cerebellar and pontine

atrophy. Differential diagnosis would

include pontocerebellar atrophy syndrome,

pontocerebellar hypoplasia, and

spinocerebellar atro phy syndrome.

12. A pparently , Monifa moved with her family to

Jacksonville following her MRI, and returned to Gainesville in

early 2006. Then, on March 30, 2006, on the recommendation of

her pediatrician, she was again seen at the Pediatric Neurology

C linic for evaluation. The results of that evaluation noted:

. . . Today, mom reports that the patient

has been slowly progressing and gaining

milestones . At 3 years 8 months old she now

talks both single words and phrases. She

converses with her 2 - year - old sister and

repeats what her sister says. She cannot

walk independently, however, she can walk

with difficulty if someone supports her

either by the hands and arms or by the

trunk. She is able to feed herself. She

has been sitting by herself since sh e was a

little over 1 year of age.

She was getting some therapy services until

she turned 3, but then the services

terminated. She was not enrolled for any

school this year and therefore received no

therapy from the school system.

* * *

OBJECTIVE: PHYSICAL EXAM: Today her height

is 91.3 cm. Her head circumference is 48

cm, and her weight is 12.65 kg. . . .

Monifa is awake and tracks with her eyes.

She seems interested in her surroundings.

She holds on to her mom for balance,

standing beside mo m's chair and holding onto

mom's leg. She bends forward at the hips

most of the time. HEENT reveals an

asymmetrical face, which appears to be

perhaps somewhat weak on the right. She

also has a slightly disconjugate gaze. She

is hypotonic both centrally and

peripherally. She has brisk reflexes

throughout and appears to have an up - going

toe on the right and down - going toe on the

left. She is able to grasp onto a sticker

that has been given to her, but does not

spontaneously grasp when the examiner tries

to hand her a pen. She ambulates with

extreme difficulty occasionally taking a

step which is very ataxic, and she has

extremely poor balance and would fall

immediately if she was not supported. She

can sit on the exam table by herself, but is

noted to h old one hand down on the table for

support.

ASSESSMENT: This is a 3 - year 8 - month - old

child with history of developmental delay,

hypotonia, and ataxia. Past MRI has shown

cerebellar and pontine atrophy. She is

gaining in milestones and is not declining.

Because she continues to gain milestones, at

this time, we do not think that she has

spinal cerebellar atrophy, but most likely

cerebral palsy.

PLAN: We have discussed this with mom and

told her that this is likely cerebral palsy

which is caused by in the birth injury. [ 5 ]

We are going to repeat her MRI to see if

there has been any progression in her

atrophy. We are going to sign her up for

Children's Medical Services because the

patient needs aggressive PT, OT, and Speech

Therapy. We are going to hav e her come back

to our clinic in three months.

13. The b rain MRI was done May 5, 2006, noted the

following findings and impression:

Findings: The previous examination

demonstrates striking cerebellar and pontine

atrophy consistent with possible

pontoce rebellar atrophy syndrome,

pontocerebellar hypoplasia, and

spinocerebellar atrophy syndrome.

Today's examination demonstrates the same

findings. There is apparent flattening of

the clivus consistent with likely

platybasia. There has been overall

progr ession of cerebellar atrophy and

malformation of the pons. There has been

interval development of an area of increased

signal intensity seen on FLAIR and T2

imaging within the left frontal lobe. This

is uncertain etiology and may represent a

focal area o f gliosis.

Otherwise, the brain density is appropriate

for a young child. There is minimal

retained interstitial water in the cerebral

white matter. Myelination is appropriate

for age with evidence of myelination in

corticospinal tracts, visual pathways and

corpus callosum. There is no hydrocephalus.

IMPRESSION: Overall progression of

cerebellar atrophy and pontine malformation

with interval development of an area of

increased signal intensity in the left

frontal lobe of uncertain etiology. This

may represent a focal area of gliosis. See

above.

14. On August 3, 2006, Monifa was seen at the Pediatric

Neurology Clinic in follow - up for cerebellar atrophy. The

results of that evaluation noted:

. . . Monifa has been evaluated for speech

and language [May 9, 2006]. It is noted

that she is approximately one and a half to

two years behind in her language

development. She remains delayed in her

motor skills as well. She still is unable

to walk. She has very poor balance but can

hold onto a chair and m ove around the chair

without assistance. She definitely cannot

ambulate independently. Her mom reports the

patient is speaking in two to three word

phrases but not in sentences. She does try

to mimic her sister. The patient has been

signed up for Child ren's Medical Services,

however, mom is still waiting for a nurse to

be assigned to her case so she can start

getting PT, OT and speech therapy.

Overall, Mom does not feel as though Monifa

has changed significantly since we saw her

on March 30th. She con tinues to be

concerned because the patient is unable to

walk.

Today, her weight is 12.7 kg. . . . and her

head circumference is 47.7 cm. . . . Monifa

is sitting in her stroller chair. Her face

is asymmetrical, appearing to be weak on the

right side. She has very little verbal

output but when she does speak, she is

dysarthic. [ 6 ] She is hypotonic throughout.

She has moderately brisk reflexes

throughout. She has an upgoing toe on the

right and a tight heel cord on the left.

When stood up, the patient ca nnot stand

without assistance. She has to be firmly

supported. She does take a few steps, which

are very ataxic.

Assessment: This is a 4 - year - old child with

progressing cerebellar atrophy. Today, we

are going to send her to the lab for repeat

serum am ino acids and urine organic acids.

We are also sending a comprehensive spinal

genetics - testing screen to Athena

Laboratories for cerebellar atrophy. We are

going to get a lactate, a pyruvate and

ammonia level. We are going to request a

Genetics consult to request their assistance

in trying to determine the etiology of this

patient's symptoms. . . .

Today we have discussed the patient's most

recent MRI scan with mom. As of this time,

we are not sure whether or not she has

spinocerebellar atrophy syndrom e or whether

she may have some metabolic disorder. Mom

has asked if these conditions are

progressive and she has been told that they

are, however, at this point in time, the

patient does not have a definitive

diagnosis . . . .

15. Insofar as the record reveals, Monifa has not been

seen at the Pediatric Neurology Clinic since her visit of

August 3, 2006. However, she was seen for a genetics consult by

Charles Williams, M.D., at the Division of Genetics, Department

of Pediatrics, Shands Children's Hospit al, on February 13, 2007.

The results of that consultation noted:

The evaluation thus far has resulted in a

normal peripheral blood karyotype, normal

blood ammonia, essentially normal paravate,

and lactate levels and she has had an

[ A ] thena cerebellar ata xia mutation panel

which was reported as normal. As well, she

has had normal plasma amino acid studies.

* * *

She has been moving forward developmentally

and the mother thinks that her mental age is

somewhere between three and four years of

age. Th ere is no history of any progressive

ataxia or loss of gross motor milestones.

* * *

On physical examination, Monifa was an

interactive little girl who established eye

contact and had obvious facial asymmetry

with the left hypoplastic mandible and

ma xilla . . . She was able to smile with a

reasonably symmetric facial expression. Her

eating has been reported by the mother as

fairly well now although she did have some

difficulties with swallowing in the first

year or two of life. The extremities show

no abnormalities. The chest exam normal,

abdominal exam negative. A skin exam was

free of any birthmark abnormalities.

We were able to review her two MRIs as well

as her initial CT scan which was done at

about two months [sic] of age with our

neuroradi ologists, and when we looked at all

of these, it seemed evident that there was

pontine atrophy and cerebellar atrophy

present since the first CT scan was

performed at age 2 months [sic] and the

findings are consistent with actually

nonprogressive, pons/bra in stem atrophy

problem. It is most reminiscent of some

type of intrauterine disruption that would

cause focal abnormalities in this area.

Impression: Our thought at this time is

that Monifa does not have any type of neuro -

degenerative ponto cerebellar problem. We

think that her facial abnormalities in

combination with the brain stem findings on

the various brain images points to some type

of disruption problem . . . that occurred

prenatally. However, it is somewhat

noteworthy in that she does not show any

obvious features of Moebius sequence in

terms of her facial examination and although

she has marked facial hypoplasia on the

left, when we reviewed the literature

regarding hemifacial microsomias, we found

no association with pontocerebellar atrophic

problems. Nevertheless, in view of her good

moving forward clinical history, I think

that is most likely that her brain

abnormality represents some type of acquired

in utero disruption process. For the time

being, I do not recommend any additional

geneti c studies and I do appreciate an

opportunity providing consultation.

Coverage under the Plan

16. 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 . . . cau sed 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.

The etiology and significance of Monifa's impairments

17. Insofar as the medical records reveal, among the

physicians who have treated Monifa, and who were particularly

qualified to address the etiology and significance of her

impairme nts, none concluded that Monifa's impairments most

likely resulted from 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 Monifa was

permanently and substantially mentally and physically impaired.

Indeed, to date her physicians have not identified a unifying

etiology for her impairments, but are looking to etiologies

other than those associated with Monifa' s birth, as a likely

cause for her difficulties.

18. Apart from the medical records, Petitioners offered no

medical evidence to demonstrate the likely cause or significance

of Monifa's neurologic impairments. Consequently, the proof

failed to support th e conclusion that Monifa suffered a "birth -

related neurological injury," as required for coverage under the

Plan. See , e.g. , Sunshine Plumbing v. Benecke , 558 So. 2d 162,

165 (Fla. 1st DCA 1990)("[T]he claimant bears the burden of

proving a causal connect ion between the employment and the

injury ." ); Vero Beach Care Center v. Ricks , 476 So. 2d 262, 264

(Fla. 1st DCA 1985)("There being no medical evidence of

causation, claimant here has not met her burden o f proving that

her medical condition was causally re lated to her industrial

accident."); Handy v. Golden Gem Growers, Inc. , 454 So. 2d 69

(Fla. 1st DCA 1984)("For conditions not readily observable or

discoverable without medical examination, proof of causation

requires medical testimony based on reasonable medical

probability that the injury . . . is causally connected to the

employment."); Ackley v. General Parcel Service , 646 So. 2d 242,

245 (Fla. 1st DCA 1994)("[D]etermining . . . cause of a non -

observable medical condition, such as psychiatric illness, i s

essentially a medical question," requiring expert medical

evidence.); Broadfoot v. Albert Hugo Association, Inc. , 478 So.

2d 863, 865 (Fla. 1st DCA 1985) ("[L]ay testimony cannot be used

to establish causal relationship within reasonable medical

probabili ty as to conditions and symptoms that are not readily

observable."). 7

CONCLUSIONS OF LAW

19. The Division of Administrative Hearings has

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

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

20. T he 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 Janu ary 1, 1989. § 766.303(1), Fla. Stat.

21. 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 p etition

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.

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

is a compensable birth - related neur ological 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(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.

23. In discharging this responsibility, the administrativ e

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 inju ry 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; o r 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 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

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

24. 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 weighi ng

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 infant permanently and

substantially menta lly and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

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

Petitioners to demonstrate that M onifa 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 ass erting the affirmative

issue before an administrative tribunal.").

26. Here, the proof failed to support the conclusion that,

more likely than not, Monifa 's neurologic impairments were the

result of an injury to the brain or spinal cord injury caused by

o xygen deprivation or mechanical injury occurring in the course

of labor, delivery, or resuscitation in the immediate

postdelivery period in the hospital , or that Monifa was

permanently and substantially mentally and physically impaired .

Consequently, give n the provisions of Section 766.302(2),

Florida Statutes, Monifa w as not shown to 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]ecau se 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 Assoc iation v. McKaughan , 668

So. 2d 974, 979 (Fla. 1996); Nagy v. Florida Birth - Related

Neurological Injury Compensation Association , 813 So. 2d 155,

160 (Fla. 4th DCA 2002)("According to the plain meaning of the

words written, the oxygen deprivation or mechan ical injury must

take place during labor, delivery, or immediately thereafter ");

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 conju nctive

and can only be interpreted to require both substantial mental

and physical impairment.) .

27. Where, as here, the administrative law judge

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

neurological injury . . . she or he [is re quired 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 revi ew.

§ 766.311(1), Fla. Stat.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED the claim for compensation filed by Dashea Jackson

and Ifagbemi Olamina, on behalf of and as parents and natural

guardians of Monifa O lamina, a minor, is dismissed with

prejudice.

DONE AND ORDERED this 18th day of May, 2007 , in

Tallahassee, Leon County, Florida.

S

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSot o 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 18th day of May, 2007 .

ENDNOTES

1/ The medical records from Shands at the University of Florida

for Monifa Olamina filed by Respondent with DOAH on March 13,

2007 (referred to in paragraph A . 2. of the parties' S tipulat ed

Record ) ha ve been marked as Respondent's Exhibit 3 and received

into e vidence. The transcript of the March 20, 2007, hearing

was filed April 11, 2007.

2/ See Section 120.57(1)(c), Florida Statutes. ("Hearsay

evidence may be used for the purpose of supplementing or

explaining other evidence, but it shall not be sufficient in

itself to support a finding unless it would be admissible over

objection in civil actions.").

3/ The Apgar scores assigned to Monifa are a numerical

expression of the condition of a newborn infant, and reflect the

sum points gained on assessment of h eart rate, respiratory

effort, muscle tone, reflex irritability, and color, with each

category being assigned a score ranging from the lowest score of

0 through a maximum score of 2. See Dorland's Illustrated

Medical Dictionary, 28th Edition, 1994. Here, at one minute,

Monifa's Apgar score totaled 5, with heart rate and respiratory

effort being graded at 2 each, reflex irritability being graded

at 1, and muscle tone and color being graded at 0. At five

minutes, Monifa's Apgar score totaled 8, with heart rate,

respiratory effort and reflex irritability being graded at 2

each, and muscle tone and color being graded at 1 each.

4/ The reco rds are conflicting with regard to how long Monifa

was fed via NG tube. The report of neurological evaluation at

Shands , dated March 30, 2006, notes that Monifa "had the feeding

tube for approximately six months." (Respondent's Exhibit 3.)

The Speech and Language Evaluation at the Department of

Communicative Disorders, at the University of Florida, dated

May 9, 2006, not ed that Monifa "was feed [sic] via NG tube for

approximately 6 weeks." (Respondent's Exhibit 3.) Here, 6

months has been noted as the more likely time frame. However,

the time frame is not material to the result reached.

5/ This appears to be a tran scription error , and "in the birth

injury" should likely read "in utero or birth injury." See

"palsy," "cerebral p.," "any of a group of persisting,

nonprogressive motor disorders appearing in young children and

resulting from brain damage caused by birth trauma or

intrauterine pathology."

6/ "Dysarthric" is defined as "characterized by or pertaining

to dysarthria." Dorland's Illustrated Medical Dictionary, 28th

Edition , 1994. "Dysarthria" is defined as "imperfect

articulation of speech due to disturba nces of muscular control

which results from damage to the central or peripheral nervous

system." Id.

7/ The Plan's no - fault system and the workers' compensation

system share similar purposes and characteristics. Humana of

Florida, Inc. v. McKaughan , 65 2 So. 2d 852, 857 (Fla. 2d DCA

1995). In the case of workers' compensation, the claimant must

prove a causal connection between the medical condition and the

industrial accident. Under the Plan, the claimant must prove a

casual connection between the chi ld's medical condition and a

brain or spinal cord injury, caused by oxygen deprivation or

mechanical injury, that occurred during labor, delivery or

resuscitation.

COPIES FURNISHED :

(Via certified mail)

Kenney Shipley, Executive Director

Florida Birth R elated Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7003 1010 0001 2044 5125)

Tana D. Storey, Esquire

Roetzel & Andress

225 South Adams Street, Suite 250

Tallahassee, Florid a 32301

(Certified Mail No. 7003 1010 0001 2044 5132)

Ifagbemi Olamina

Dashea Jackson

951 A Southeast 4th Street

Gainesville, Florida 32601

(Certified Mail No. 7003 1010 0001 2044 5149)

Michael Akhiyat, M.D.

700 Zeagler Drive, Suite 1

Palatka, Florida 32178

(Certified Mail No. 7003 1010 0001 2044 5156)

Putnam Community Medical Center

Highway 20 West

Palatka, Florida 32178

(Certified Mail No. 7003 1010 0001 2044 5163)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of H ealth

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7003 1010 0001 2044 5170)

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 Sect ions 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 He arings 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.