07-003421N Rosina Dixon, On Behalf Of And As Parent And Natural Guardian Of Jhaleil Dixon, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, November 3, 2008.

Summary: The proof demonstrated that, more likely than not, the infant did not suffer a brain or spinal cord injury during labor, delivery, or resuscitation. Therefore, the claim is not compensable, and the claim dismissed with prejudice.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROSINA DIXON, ON BEHALF OF AND )

AS PARENT AND NATURAL GUARDIAN )

OF JHALEIL DIXON, A MINOR, )

)

Petitioner, )

)

vs. ) Case No. 07-3421N

)

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 April 22, 2008, and

October 6, 2008, by video teleconference, with sites in

Tallahassee and Jacksonville, Florida.

APPEARANCES

For Petitioner: Rosina Dixon, pro se 1

1830 East 22nd Street

Jacksonville, Florida 32206

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 Jhaleil Dixon, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On July 24, 2007, Rosina Dixon, on behalf of and as parent

and natural guardian of Jhaleil Dixon (Jhaleil), 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

July 25, 2007, and on January 18, 2008, 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 Jhaleil

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

held on April 22, 2008, and October 6, 2008.

At the hearing held April 22, 2008, Rosina Dixon testified

on her own behalf, offered the testimony of Page Lutchman, and

the parties stipulated to the facts set forth in paragraph 1 of

the Findings of Fact, infra . No further witnesses were called,

and no exhibits were offered. However, the hearing was

adjourned to accord Petitioner an opportunity to employ counsel

and to accord the parties an opportunity to review and agree on

the admission of the medical records. The parties were to

provide the administrative law judge with a written status

report by June 30, 2008.

Petitioners did not provide the administrative law judge

with a status report. However, on July 30, 2008, NICA filed its

status report and stated:

1. The hearing held in the case on

April 22, 2008, was continued for several

reasons, including the Petitioner's desire

to seek legal representation, and that the

Petitioner and the undersigned could not

agree as to the name of the delivery

physician.

2. Despite repeated attempts to contact to

the Petitioner, through correspondence and

telephone calls to the address and telephone

number of the Petitioner on record in this

matter, the undersigned has been unable to

reach the Petitioner. The undersigned is

unaware of another means of contacting the

Petitioner.

3. As requested at the April 22, 2008,

hearing, NICA forwarded a copy of all the

medical records in its possession relative

to this case, to the Petitioner.

4. Also, as discussed at the April 22,

2008, hearing, NICA requested that Donald C.

Willis, M.D., NICA's expert in obstetrics

and maternal-fetal medicine, review the

additional medical records available and

issue a supplemental report. Dr. Willis

issued his supplemental report in which his

opinion remains that "there was no

mechanical trauma that resulted in injury to

the spinal cord or brain," and that "the

baby did not suffer oxygen deprivation

sufficient to cause brain injury." NICA

filed the supplemental report with DOAH and

forwarded a copy to the Petitioner on

June 17, 2008.

Given the status of the case, a hearing was duly-noticed for

October 6, 2008, to conclude the hearing on compensability.

At the hearing, scheduled for October 6, 2008, neither

Petitioner nor anyone on her behalf appeared. However,

Respondent did appear, through counsel, and called Donald C.

Willis, M.D., as a witness, and Respondent's Exhibit 1 (medical

records from Shands Jacksonville), Exhibit 2 (the CV of

Dr. Willis), Exhibit 3 (Dr. Willis' report of January 18, 2008),

and Exhibit 4 (Dr. Willis' report of May 22, 2008) were received

into evidence.

On October 6, 2008, following the conclusion of the

hearing, an Order was entered, which provided:

Pursuant to Notice of Hearing by Video

Teleconference, dated July 3, 2008, a

hearing was held on October 6, 2008, to

complete the compensability hearing. At the

time, neither Petitioner nor anyone on her

behalf appeared. Respondent was represented

by counsel, and offered the testimony of

Donald Willis, M.D. and Respondent's Exhibit

1 (the medical records from Shands

Jacksonville), Exhibit 2 (the CV of

Dr. Willis), Exhibit 3 (Dr. Willis' report

of January 18, 2008), and Exhibit 4

(Dr. Willis' report of May 22, 2008) were

received into evidence. Accordingly, it is

ORDERED that Petitioner is accorded until

October 17, 2008, to show good cause in

writing, if any she can, why the record

should not be closed, and the issue of

compensability resolved on the record

established at the hearing held on April 22,

2008, and October 6, 2008.

It is further ORDERED that the parties are

accorded 10 days from the date the

transcript is filed to file proposed orders.

Petitioner did not respond to the Order of October 6, 2008.

The transcript of the hearing held April 22, 2008, was

filed June 17, 2008, and the transcript of the hearing held

October 6, 2008, was filed October 21, 2008. Respondent elected

to file a proposed order, and it has been duly-considered.

FINDINGS OF FACT

Stipulated facts

1. Rosina Dixon is the natural mother and guardian of

Jhaleil Dixon, a minor. Jhaleil was born a live infant on

February 17, 2004, at Shands Medical Center, a hospital located

in Jacksonville, Florida, and his birth weight exceeded 2,500

grams.

Coverage under the Plan

2. 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 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 a hospital, which renders the infant

permanently and substantially mentally and physically impaired."

§ 766.302(2), Fla. Stat.

The etiology of Jhaleil's impairments

3. To address the likely etiology of Jhaleil's

impairments, Ms. Dixon testified on her own behalf, and offered

the testimony of Page Lutchman. In contrast, NICA offered the

testimony of Donald Willis, M.D., a physician board-certified in

obstetrics and gynecology, and maternal-fetal medicine, together

with Dr. Willis' reports and the medical records related to

Jhaleil's birth.

4. Based on Dr. Willis' review of the medical records, it

was his opinion that, within a reasonable degree of medical

probability, Jhaleil did not suffer an injury to his brain or

spinal cord caused by oxygen deprivation or mechanical injury

occurring in the course of labor, delivery, or resuscitation.

In so concluding, Dr. Willis noted that Apgar scores were 3 and

7, at one and five minutes, respectively; that while depressed

at birth, Jhaleil responded quickly to minimal resuscitation;

umbilical cord blood gas was normal, with pH of 7.19 and base

excess of -3.1; neurologic consultation was consistent with

bilateral brachial plexus injury, not an injury to the brain or

spinal cord; MRI of the spine on day 3 of life was negative;

and, there being no evidence of multisystem system involvement

( i.e. , seizures, renal failure), Jhaleil's newborn stay was not

otherwise consistent with injury to the brain or spinal cord.

5. The opinions of Dr. Willis are rationally based,

supported by the record, and credible. Consequently, it must be

resolved that, more likely than not, Jhaleil's impairments were

not 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. See Vero Beach Care Center

v. Ricks , 476 So. 2d 262, 264 (Fla. 1st DCA 1985)("[L]ay

testimony is legally insufficient to support a finding of

causation where the medical condition involved is not readily

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

245 (Fla. 1st DCA 1994)("The determination of the cause of a

non-observable medical condition, such as a psychiatric illness,

is essentially a medical question."); 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."). Therefore, the proof fails to support the

conclusion that Jhaleil suffered a "birth-related neurological

injury," as required for coverage under the Plan.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

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

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

7. 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.

8. 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 within five years

and 766.313, 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(3), Fla.

Stat.

9. 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.

10. 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 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 delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

11. 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 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.

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

the Petitioner to demonstrate that Jhaleil suffered a "birth-

related neurological injury." See § 766.309(1)(a); see also

Balino v. Department of Health and Rehabilitative Services , 348

So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden of proof,

apart from statute, is on the party asserting the affirmative

issue before an administrative tribunal.").

13. Here, the proof failed to demonstrate that Jhaleil's

impairments were, more likely than not, caused by 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 a

hospital." Consequently, given the provisions of Section

766.302(2), Florida Statutes, Jhaleil does not qualify for

coverage under the Plan. See also 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-Related Neurological Injury Compensation

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

14. 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 Findings of Fact and Conclusions of

Law, it is

ORDERED that the claim for compensation filed by

Rosina Dixon, on behalf of and as parent and natural guardian of

Jhaleil Dixon, a minor, is dismissed with prejudice.

DONE AND ORDERED this 3rd day of November, 2008, 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]

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 3rd day of November, 2008.

ENDNOTE

1/ Ms. Dixon appeared at the hearing held April 22, 2008, but

did not appear for the hearing held October 6, 2008.

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. 7007 2680 0000 9309 0533)

Rosina Dixon

1830 East 22nd Street

Jacksonville, Florida 32206

(Certified Mail No. 7007 2680 0000 9309 0540)

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 7007 2680 0000 9309 0557)

Robert Garrison, D.O.

655 West 8th Street

Jacksonville, Florida 32209

(Certified Mail No. 7007 2680 0000 9309 0564)

Shands Medical Center

655 West 8th Street

Jacksonville, Florida 32209

(Certified Mail No. 7007 2680 0000 9309 0571)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7007 2680 0000 9309 0588))

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.