08-005147N Angela Samples And Kenneth Ray Samples, Individually And As Parents And Next Friends Of Mackenzie Samples, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, July 7, 2015.

Summary: Section 766.31(1)(b)1., Florida Statutes, authorizes an award to the parents or legal guardians of a sum not to exceed $100,000, in total, and not a sum to exceed $100,000, individually.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ANGELA SAMPLES AND KENNETH RAY )

SAMPLES, INDIVIDUALLY AND AS )

PARENTS AND NEXT FRIENDS OF )

MACKENZIE SAMPLES, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 08-5147N

)

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 August 14, 2009, by

teleconference.

For Petitioners: Scott R. McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

For Respondent: Wilbur E. Brewton, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

Whether Section 766.31(1)(b)1., Florida Statutes,

authorizes an award to the parents or legal guardians of a sum

not to exceed $100,000, in total, or whether it authorizes an

award to the parents or legal guardians of a sum not to exceed

$100,000, individually.

PRELIMINARY STATEMENT

On October 14, 2008, Petitioners, Angela Samples and

Kenneth Samples, individually, and as parents and next friends

of MacKenzie Samples (MacKenzie), a minor, filed a petition with

the Division of Administrative Hearings (DOAH) for benefits

under the Florida Birth-Related Neurological Injury Compensation

Plan (Plan).

DOAH served the Florida Birth-Related Neurological Injury

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

October 15, 2008, and on January 30, 2009, following an

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

petition and gave notice that it was of the view the claim was

compensable, and expressed its willingness to provide benefits

as provided by the Plan.

On May 18, 2009, the parties filed a Stipulation and Joint

Petition for Compensation of Claim Arising out of Florida Birth-

Related Neurological Injury Pursuant to Chapter 766, Florida

Statutes, wherein they agreed the claim was compensable. The

stipulation also included the following provisions:

12. The Petitioners disagree as to NICA's

interpretation of Section 766.31(1)(b)1.,

Florida Statutes, with respect to the

payment of the parental award. Section

766.31(1)(b)1., Florida Statutes, . . .

[provides that the administrative law judge

shall make an award including]:

'Periodic payments of an award to

the parents or legal guardians of

the infant found to have sustained

a birth-related neurological

injury, which award shall not

exceed $100,000. However, at the

discretion of the administrative

law judge, such award may be made

in a lump sum.'

The Petitioners reserve the right to argue,

at a hearing before the Administrative Law

Judge, the sole issue of the

constitutionality of, and interpretation of

Section 766.31(1)(b)1., Florida Statutes,

and whether such statute authorizes payment

of an award which shall not exceed $100,000

to both parents, combined, or whether that

section authorizes payment of an award which

shall not exceed $100,000 to each parent,

individually.

13. NICA agrees to pay to Petitioners,

contingent upon approval of this Stipulation

by the Administrative Law Judge, the

following:

(a) The Petitioners shall receive from NICA

One Hundred Thousand Dollars ($100,000.00)

to be paid as a lump sum to the parents.

This payment is authorized pursuant to

Section 766.31(1)(b)1., Florida Statutes.

(b) Payment of benefits up to and including

the effective date of this Stipulation under

Section 766.31(1)(a), Florida Statutes,

subject to the provisions of Paragraph 20 of

this Stipulation.

(c) Pursuant to Section 766.31(1)(c),

Florida Statutes, payment of reasonable

expenses to Scott R. McMillen, Esquire, or

the McMillen Law Firm, incurred in

connection with the filing of a claim under

Sections 766.301-766.316, Florida Statutes,

including reasonable attorney's fees, to be

agreed upon at the resolution of this claim.

At that time, if the Parties cannot reach an

agreement as to the reasonable expenses to

be paid, the Parties shall request a hearing

before the Administrative Law Judge to

resolve such issue.

14.(a) With the exception of the issue

reserved in Paragraph 12 of this

Stipulation, including any attorney's fees

and costs the Petitioners may be entitled to

as a result thereof, the Petitioners further

agree that upon the making of the payments

outlined in paragraph 13 of this

Stipulation, this shall serve as a full,

complete and absolute discharge of any and

all responsibility and liability NICA and

the persons outlined in Section 766.303(2),

Florida Statutes, may have to the

Petitioners in their capacity as the parents

and legal guardians of MacKenzie and each

Petitioner in their individual capacity.

(b) The Petitioners and NICA agree that

NICA will pay future expenses as incurred.

See § 766.31(2), Fla. Stat. . . .

15. The Petitioners represent and

acknowledge to the Administrative Law Judge

of the Division of Administrative Hearings

that they understand that this Stipulation

is a complete and final settlement in its

entirety, and further represent and

acknowledge that they have retained legal

counsel which has provided legal advice in

regard to this Stipulation, and the option

of accepting this Stipulation as opposed to

whatever other rights and remedies the

Petitioners otherwise have had, either in

their individual capacity or personal

capacity, and that their legal counsel has

advised them of the legal significance of

each and every part of this Stipulation.

Further, the Petitioners represent and

acknowledge to the Administrative Law Judge

of the Division of Administrative Hearings

that they understand that the Petition which

has been filed seeking compensation from

NICA is hereby deemed to be satisfied in its

entirety, except for the issue of the proper

interpretation of Section 766.31(1)(b)1.,

Florida Statutes, and the payment of

reasonable expenses pursuant to Section

766.31(1)(c), Florida Statutes.

16. The Parties to this Stipulation agree

that they will not appeal any of the issues

specifically resolved by this Stipulation.

However, any Final Order of the

Administrative Law Judge resolving the issue

of the proper interpretation of Section

766.31(1)(b)1., Florida Statutes, may be

subject to appeal as to that issue only.

By letter/e-mail agreement dated June 12, 2009, filed June 15,

2009, the parties agreed to attorney's fees of $10,000.00 and

costs of $898.13 to be awarded in connection with the filing of

the claim, subject to an additional award if Petitioners

prevailed in the dispute regarding the proper interpretation of

Section 766.31(1)(b)1., Florida Statutes.

On June 17, 2009, an Order was entered approving the

parties' stipulations. The Order also included the following

provisions:

2. Petitioners, Angela Samples and Kenneth

Ray Samples, Jr., as the parents and natural

guardians of MacKenzie Samples, a minor, are

awarded One hundred thousand dollars

($100,000.00), pursuant to Section

766.31(1)(b)1., Florida Statutes, to be paid

in lump sum.

3. Upon payment of the award of One hundred

thousand dollars ($100,000.00), attorney's

fees and other expenses of Ten thousand

eight hundred and ninety-eight dollars and

thirteen cents ($10,898.13), and past

expenses, the claims of Petitioners

(Claimants) shall be deemed fully satisfied

and extinguished, except for the issues

reserved in paragraph 12 of the parties'

Stipulation, including attorney's fees and

costs the Petitioners may be entitled to as

a result thereof, and Respondent's

continuing obligation under Section

766.31(2), Florida Statutes, to pay future

expenses as incurred.

4. With regard to the issues reserved in

paragraph 12 of the parties' Stipulation,

and with regard to any dispute regarding

past expenses, a hearing will be scheduled

by a separate notice of hearing to address

those issues . . . .

By Notice of Hearing dated June 25, 2009, a hearing was

scheduled for August 14, 2009, to allow the parties an

opportunity to (1) "offer any proof they perceive pertinent to

the proper interpretation of Section 766.31(1)(b)1., Florida

Statutes, as well as any proof they perceive pertinent to make a

record regarding their perception of the constitutionality of

Section 766.31(1)(b)1., Florida Statutes, with regard to the

parental award; and (2) any remaining dispute regarding past

expenses." At the parties' request, it was agreed any remaining

dispute regarding past expenses would be resolved at a later

date, if necessary.

At hearing, Respondent's Exhibits 1-7, as identified in the

Joint Pre-Hearing Stipulation filed August 4, 2009, were

received into evidence, as well as a CD, which contained a copy

of Respondent's Exhibits 3-7 in electronic format, here

identified as Respondent's Exhibit 8. Without objection,

official recognition was taken of the Final Order entered

July 22, 1994, in Wojtowicz v. Florida Birth-Related

Neurological Injury Compensation Association , DOAH Case No. 93-

4268N, and the Final Order entered May 11, 1999, in Waddell v.

Florida Birth-Related Neurological Injury Compensation

Association , DOAH Case No. 98-2991N. 1 No witnesses were called,

and no further exhibits were offered.

The parties filed memorandum of law before the hearing, and

waived the opportunity to file further written argument or

proposed orders post-hearing.

FINDINGS OF FACT

Stipulated Facts 2

1. "Once NICA ascertains that a claim is covered, NICA

frequently offers a lump sum payment of a parental award

totaling $100,000, regardless of whether there are one or two

parents involved in the claim. Such offer is subject to the

subsequent approval of the ALJ."

2. "Pursuant to Section 766.309, Florida Statutes, the ALJ

must make all NICA Awards, which includes the parental award

pursuant to Section 766.31(1)(b)1., Florida Statutes. An ALJ

has never ordered NICA to pay a parental award in excess of

$100,000, regardless of whether there was one parent or two

parents involved in the claim."

3. "In a typical covered claim, NICA does not customarily

argue that the parental award should be less than the full

$100,000 authorized."

4. "Once the ALJ has ordered payment of a parental award

in the amount of $100,000, NICA pays the $100,000 parental award

by check made payable to both parents jointly, unless otherwise

ordered by the ALJ."

5. "In the past, when there was a dispute between the

parents with respect to the amount of the parental award to go

to each parent, the ALJ has specified in the Final Order how

much of the parental award would be paid to the mother and how

much would be paid to the father. In those instances, the

combined parental award was typically for the full $100,000." 3

6. "Angela Samples and Kenneth Samples have requested that

NICA pay a parental award of $100,000 for each parent, but NICA

has declined, based on legal interpretations of Section

766.31(1)(b)1., Florida Statutes, which limits the parental

award to $100,000 for both parents, combined."

7. "Pursuant to paragraph 13(a) of the Parties'

Stipulation filed in this case and pursuant to the Order

approving such Stipulation dated June 17, 2009, NICA issued a

check on June 24, 2009, made payable to Angela and

Kenneth Samples, jointly, for $100,000. This payment was made

and accepted subject to a stipulation that the Samples' claim

for a larger parental award would be preserved."

Section 766.31(1)(b)1., Florida Statutes, an award

to the parents or legal guardians

8. Section 766.31(1), Florida Statutes, provides that upon

determining a claim is compensable, the administrative law judge

must make an award providing compensation for a number of items,

as prescribed by subparagraphs (a)-(c). Pertinent to this case,

Subsection 766.31(1)(b)1., Florida Statutes, provides that such

an award shall include:

(b)1. Periodic payments of an award to the

parents or legal guardians of the infant

found to have sustained a birth-related

neurological injury, which award shall not

exceed $100,000 . However, at the discretion

of the administrative law judge, such award

may be made in a lump sum. [Emphasis

added.]

9. Here, Petitioners are of the view that Subsection

766.31(1)(b)1., is ambiguous, and should be interpreted as

authorizing an award of up to $100,000 for each parent or

guardian, independent of the other. To do otherwise,

Petitioners suggest, would raise equal protection concerns under

federal and Florida law. See St. Mary's Hospital, Inc. v.

Phillipe , 769 So. 2d 961 (Fla. 2000). Conversely, NICA is of

the view that the subsection is not ambiguous, and that the

maximum award of $100,000 is for both parents or legal

guardians, combined, and not for each parent or legal guardian,

individually. Moreover, NICA is of the view that the

administrative law judge is without authority to address the

constitutionality of Subsection 766.31(1)(b)1., Florida

Statutes.

Legislative History

10. The provision at issue was first enacted during a

special session in 1988, as part of Chapter 88-1, Laws of

Florida. At that time, Section 766.31(1)(b), Florida Statutes

(1988 Supp.), provided:

(b) Periodic payments of an award to the

parent or legal guardian of the infant found

to have sustained a birth-related

neurological injury, which award shall not

exceed $100,000. However, at the discretion

of the deputy commissioner, such award may

be made in a lump sum.

11. During the 1989 regular session, Section 766.31(1)(b),

Florida Statutes, 4 was amended, as follows:

(b) Periodic payments of an award to the

parents parent or legal guardians guardian

of the infant found to have sustained a

birth-related neurological injury, which

award shall not exceed $100,000. However,

at the discretion of the deputy

commissioner,[ 5 ] such award may be made in a

lump sum.

Ch. 89-186, § 5, at 768, Laws of Fla. The stated reason for the

amendment was "to clarify the fact that the maximum award of

$100,000 is for both parents or legal guardians and is not

intended to award up to $100,000 for each parent or legal

guardian." Florida House of Representatives, Insurance

Committee, Final Staff Analysis & Economic Impact Statement

(June 30, 1989), p. 3. (Respondent's Exhibit 2).

CONCLUSIONS OF LAW

12. The ultimate goal in construing a statutory provision

is to give effect to legislative intent. BellSouth

Telecommunications, Inc. v. Meeks , 863 So. 2d 287 (Fla. 2003).

"In attempting to discern legislative intent, we first look to

the actual language used in the statute." Id. at 289. "If the

statutory language used is unclear, we apply rules of statutory

construction and explore legislative history to determine

legislative intent." Id. at 289. "Ambiguity suggests that

reasonable persons can find different meanings in the same

language." Forsythe v. Longboat Key Beach Erosion Control

District , 604 So. 2d 452, 455 (Fla. 1992). "[I]f the language

of the statute under scrutiny is clear and unambiguous, there is

no reason for construction beyond giving effect to the plain

meaning of the statutory words." Crutcher v. School Board of

Broward County , 834 So. 2d 228, 232 (Fla. 1st DCA 2002).

13. Here, Petitioners contend that language of Subsection

766.31(1)(b)1., Florida Statutes, may be interpreted in two

ways. It may be interpreted as authorizing an award of up to

$100,000 for each parent or guardian, independent of the other,

or an award to the parents or legal guardians of up to $100,000,

in total.

14. Perceiving ambiguity, Petitioners reason the statute

should be interpreted to authorize an award of up to $100,000

for each parent or guardian, independent of the other, since to

do otherwise would raise equal protection concerns under federal

and Florida law. St. Mary's Hospital , 769 So. 2d at 972 ("It is

a fundamental rule of statutory construction that, if at all

possible, a statute should be construed to be constitutional.").

15. Here, it is unnecessary to address Petitioners'

constitutional concerns since, given the legislative history of

the subsection, the legislature clearly intended that the

maximum award of $100,000 was for both parents or legal

guardians, and not for each parent or legal guardian,

individually. State v. Elder , 382 So. 2d 687, 690 (Fla.

1980)("In construing [a statute], we are mindful of our

responsibility to resolve all doubts as to the validity of a

statute in favor of its constitutionality, provided the statute

may be given a fair construction that is consistent with the

federal and state constitutions as well as with the legislative

intent . . . . This Court will not, however, abandon judicial

restraint and invade the province of the legislature by

rewriting its terms.). Moreover, an administrative law judge

does not have jurisdiction to consider or resolve constitutional

issues. Florida Hospital v. Agency for Health Care

Administration , 823 So. 2d 844, 849 (Fla. 1st DCA 2002).

Nevertheless, since Petitioners may challenge the

constitutionality of Subsection 766.31(1)(b)1., Florida

Statutes, on appeal, they have the right, as they have been

accorded here, to build their record for appeal. Anderson

Columbia v. Brown , 902 So. 2d 838, 841 (Fla. 1st DCA 2005).

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is

ORDERED that Petitioners' claim for additional compensation

under the provisions of Subsection 766.31(1)(b)1., Florida

Statutes, is denied.

DONE AND ORDERED this 1st day of September, 2009, 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 1st day of September, 2009.

ENDNOTES

1/ By Notice of Filing Supplemental Authority, filed August 13,

2009, Petitioners filed a copy of the Final Order entered in

Wojtowicz , and by Notice of Filing, dated August 24, 2009, the

administrative law judge filed a copy of the Final Order entered

in Waddell . Orders of the Division of Administrative Hearings

may also be accessed at the website of the Division of

Administrative Hearings (www.doah.state.fl.us).

2/ Joint Pre-Hearing Stipulation, paragraph E, Admitted Facts.

3/ Such a dispute has been raised on two occasions, and

memorialized in Final Orders entered in Wojtowicz and Waddell .

4/ In 2001, Section 766.31(1)(b), Florida Statutes, was amended

to provide for the payment of funeral expenses not to exceed

$1,500, and renumbered as Section 766.31(1)(b)1. and 2., with

Subsection 1. addressing the parental award and Subsection 2.

addressing payment of funeral expenses. Ch. 01-277, § 150, at

3154, Laws of Fla. Then, in 2003, Section 766.31(1)(b), Florida

Statutes, was amended to substitute a death benefit for the

infant in the amount of $10,000, for an award of funeral

expenses, with Subsection 1. addressing the parental award and

Subsection 2. addressing the death benefit. Ch. 03-416, § 78,

at 4118, Laws of Fla.

5/ In 1993, jurisdiction to resolve claims under the Plan was

transferred to the Division of Administrative Hearings, and in

1994 the provisions of Section 766.31(1)(b), Florida Statutes,

were amended to substitute "hearing officer" for "judge of

compensation claims," previously titled "deputy commissioner."

Ch. 93-251, § 3, at 2477, Laws of Fla.; Ch. 94-106, § 4, at 345,

Laws of Fla. Thereafter, in 1996, following a title change of

"hearing officer" to "administrative law judge," Section

766.31(1)(b), Florida Statutes, was amended to substitute

"administrative law judge" for "hearing officer." Ch. 96-410, §

313, at 3104, Laws of Fla.

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. 91 7108 2133 3935 7992 4826)

Scott R. McMillen, Esquire

McMillen Law Firm

390 North Orange Avenue, Suite 140

Orlando, Florida 32801

(Certified Mail No. 91 7108 2133 3935 7992 4840)

Wilbur E. Brewton, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 91 7108 2133 3935 7992 4857)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 91 7108 2133 3935 7992 4864)

Mark McTammany, M.D.

1315 Valentine Street

Melbourne, Florida 32901

(Certified Mail No. 91 7108 2133 3935 7992 4871)

Holmes Regional Medical Center

1350 Hickory Street

Melbourne, Florida 32901-3278

(Certified Mail No. 91 7108 2133 3935 7992 4888)

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.