06-005016N Millienne Papierre And Ednor Beton, On Behalf Of And As Parents And Naturals Guardians Of Evans Beton, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Friday, November 9, 2007.

Summary: Proof failed to demonstrate infant suffered a "birth-related neurological injury." Claim dismissed.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

MILLIENNE PAPIERRE AND EDNOR )

BETON, ON BEHALF OF AND AS )

PARENTS AND NATURAL GUARDIANS )

OF EVANS BETON, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 06-5016N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent. )

)

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 October 16, 2007, by video

teleconference, with sites in Tallahassee and West Palm Beach,

Florida.

APPEARANCES

For Petitioners: No appearance at hearing.

For Respondent: Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Evans Beton, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On November 21, 2006, Millienne Papierre and Ednor Beton,

on behalf of, and as parents and natural guardians of Evans

Beton (Evans), 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 Association (NICA) with a copy of the petition on

December 12, 2006, 1 and on April 30, 2007, following a number of

extensions of time within which to do so, NICA responded to the

petition and gave notice that it was of the view that Evans 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 the issue. Such a hearing was

duly-scheduled for October 16, 2007.

Although duly-noticed, neither Petitioners nor anyone on

their behalf appeared at hearing, and no evidence was offered to

support their claim. Under the circumstances, Respondent

elected to offer no proof.

The transcript of the hearing was filed November 1, 2007,

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

proposed orders. Respondent elected to file written argument

(by letter of November 1, 2007), and it has been duly-

considered.

FINDINGS OF FACT

1. As observed in the Preliminary Statement, neither

Petitioners nor anyone on their behalf appeared at hearing, and

no proof was offered to support their claim. Consequently,

there is no evidence of record to support a conclusion that

Evans suffered a "birth-related neurological injury," as defined

by the Plan.

CONCLUSIONS OF LAW

2. The Division of Administrative Hearings has

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

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

3. 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.

4. 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

and 766.305(1), Fla. Stat. The Florida Birth-Related

Neurological Injury Compensation Association, which administers

the Plan, has "45 days from the date of service of a complete

claim . . . in which to file a response to the petition and to

submit relevant written information relating to the issue of

whether the injury is a birth-related neurological injury."

§ 766.305(4), Fla. Stat.

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

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

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(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 Chapter 120, Florida

Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.

6. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a

birth-related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth-related

neurological injury as defined in s.

766.303(2).

(b) Whether obstetrical services were

delivered by a participating physician in

the course of labor, delivery, or

resuscitation in the immediate 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, 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.

7. Pertinent to this case, "birth-related neurological

injury" is defined by Section 766.302(2), Florida Statutes,

to mean:

injury to the brain or spinal cord of a live

infant weighing at least 2,500 grams for a

single gestation or, in the case of a

multiple gestation, a live infant weighing

at least 2,000 grams at birth caused by

oxygen deprivation or mechanical injury

occurring in the course of labor, delivery,

or resuscitation in the immediate

postdelivery period in a hospital, which

renders the infant permanently and

substantially mentally and physically

impaired. This definition shall apply to

live births only and shall not include

disability or death caused by genetic or

congenital abnormality.

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

Petitioners to demonstrate that Evans suffered a "birth-related

neurological injury." § 766.309(1)(a), Fla. Stat. See 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.").

9. Here, given the dearth of proof, the record fails to

support the conclusion that, more likely than not, Evans

suffered an injury to the brain or spinal cord caused by oxygen

deprivation or mechanical injury occurring in the course of

labor, delivery, or resuscitation in the immediate postdelivery

period in the hospital that rendered him permanently and

substantially mentally and physically impaired. Consequently,

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

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

§§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of Florida, Inc.

v. McKaughan , 652 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause

the Plan . . . is a statutory substitute for common law rights

and liabilities, it should be strictly constructed to include

only those subjects clearly embraced within its terms."),

approved , Florida Birth-Related Neurological Injury Compensation

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

10. Where, as here, the administrative law judge

determines that ". . . the injury 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 petition filed by Millienne Papierre and

Ednor Beton, on behalf of, and as parents and natural guardians

of Evans Beton, a minor, is dismissed with prejudice.

DONE AND ORDERED this 9th day of November, 2007, in

Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 9th day of November, 2007.

ENDNOTE

1/ The delay in serving NICA was occasioned by Petitioners'

failure to remit the required filing fee until December 11,

2006.

COPIES FURNISHED :

(Via Certified Mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 8493)

Ednor Beton

Millienne PaPierre

2035 19th Avenue Southwest

Vero Beach, Florida 32962

(Certified Mail No. 7005 1820 0002 9840 8509)

Tana D. Storey, Esquire

Kelly Brewton Plante, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7005 1820 0002 9840 8516)

Stephen Carlan, M.D.

105 West Miller Street

Orlando, Florida 32806

(Certified Mail No. 7005 1820 0002 9840 8523)

Indian River Memorial Hospital

1000 36th Street

Vero Beach, Florida 32960

(Certified Mail No. 7005 1820 0002 9840 8622)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7005 1820 0002 9840 8530)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is entitled

to judicial review pursuant to Sections 120.68 and 766.311,

Florida Statutes. Review proceedings are governed by the Florida

Rules of Appellate Procedure. Such proceedings are commenced by

filing the original of a notice of appeal with the Agency Clerk

of the Division of Administrative Hearings and a copy,

accompanied by filing fees prescribed by law, with the

appropriate District Court of Appeal. See Section 766.311,

Florida Statutes, and Florida Birth-Related Neurological Injury

Compensation Association v. Carreras , 598 So. 2d 299 (Fla. 1st

DCA 1992). The notice of appeal must be filed within 30 days of

rendition of the order to be reviewed.