08-006032N Paul David Masterton, On Behalf Of And As Parent And Natural Guardian Of Tyler Lee Masterton, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, January 28, 2010.

Summary: The child met all criteria for NICA compensation except for the conjunctive requirement of permanently and substantially mentally impaired and permanently and substantially physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAUL DAVID MASTERTON, ON BEHALF )

OF AND AS PARENT AND NATURAL )

GUARDIAN OF TYLER LEE )

MASTERTON, A MINOR, )

)

Petitioner, )

)

vs. ) Case No. 08-6032N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent. )

)

FINAL ORDER

Upon due notice, the Division of Administrative Hearings,

by Administrative Law Judge Ella Jane P. Davis, held a hearing

in the above-styled case on December 7, 2009, via

videoconference with sites in Tallahassee and St. Petersburg,

Florida.

APPEARANCES

For Petitioner: Paul David Masterton, pro se

1806 14th Avenue, South

St. Petersburg, Florida 33712

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 Tyler Lee Masterton, a minor, qualifies

for coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On December 5, 2008, a Petition was filed with the Division

of Administrative Hearings (DOAH) for compensation under the

Plan by Paul David Masterton, on behalf of and as parent and

natural guardian of Tyler Lee Masterton (Tyler), a minor.

DOAH served the Florida Birth-Related Neurological Injury

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

December 8, 2008. On May 28, 2009, NICA filed its response to

the Petition for Benefits, giving notice that NICA was of the

view that Tyler 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 whether the

claim was compensable. Thereafter, a hearing was scheduled for

December 7, 2009, to address the issue of compensability.

At hearing, Petitioner Paul David Masterton testified and

presented the oral testimony of James Masterton. Joint Exhibit

A, consisting of the medical records relating to the delivery

and subsequent care of Tyler, was stipulated into evidence.

Petitioner's Exhibits P-1 (School Board of Pinellas County

Progress Report, School Year 2009-2010) and P-2 (Pinellas County

Schools, Pre-Kindergarten Assessment Team, Multidisciplinary

Team Report) were admitted in evidence subject to the

limitations set forth in Section 120.57(1)(c), Florida Statutes.

Respondent's Exhibit 1 (Affidavit of Raymond J. Fernandez,

M.D.), also was received in evidence, over objection, but

subject to the limitations set forth in Section 120.57(1)(c),

Florida Statutes. 1

A transcript was filed on December 28, 2009. Only

Petitioner timely filed a Proposed Final Order, which has been

considered.

FINDINGS OF FACT

1. The parties stipulated as fact that:

a. Paul David Masterton is the parent and

natural guardian of Tyler Lee Masterton, a

minor;

b. Tyler was born a live infant on

August 4, 2004, at Bayfront Medical Center,

a licensed hospital located in St.

Petersburg, Florida;

c. Tyler's weight at birth exceeded 2,500

grams;

d. Obstetrical services were delivered at

Tyler's birth by Manuel A. Reyes, 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;

e. Tyler suffered oxygen deprivation during

labor, delivery and resuscitation in the

immediate postdelivery period in a hospital;

f. The oxygen deprivation resulted in injury

to Tyler's brain;

g. Such injury rendered Tyler permanently

and substantially mentally impaired.

2. The record evidence supports the facts stipulated to by

the parties.

3. 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. See also § 766.31, Fla. Stat.

4. Here, the parties have stipulated, and the proof is

otherwise compelling, that Tyler suffered a brain injury during

the delivery process which resulted in his suffering a permanent

and substantial mental impairment. What remains to be resolved

is whether Tyler also suffers from a permanent and substantial

physical impairment as a result of the brain injury sustained at

birth.

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

Petitioner to demonstrate and prove that, in addition to the

issues stipulated, Tyler suffered a permanent and substantial

physical impairment. Petitioner presented no expert medical

witnesses to speak to that issue.

6. Petitioner presented his own lay testimony and the lay

testimony of James Masterton, Tyler's grandfather. Their

testimony and Tyler's School Progress Report and Pre-

Kindergarten Assessment, which supplement the testimony,

demonstrate observable physical activities below average for

Tyler's age and learning deficits attributable to cerebral

palsy. However, these observations do not demonstrate

substantial physical impairment within reasonable medical

certainty.

7. To address the nature and significance of Tyler's

physical impairment, the parties had admitted in evidence the

medical records from Tyler's delivery and subsequent care.

8. The Affidavit of Raymond J. Fernandez, M.D., a

pediatric neurologist, who evaluated Tyler on March 19, 2009,

was admitted only to explain or supplement non-hearsay evidence,

but to the extent it may be considered, it also does not support

a finding that Tyler is permanently and substantially physically

impaired. Together with Dr. Fernandez's report, the medical

records show that, although Tyler may evidence some physical

impairment, Tyler sits independently, stands independently,

walks, runs, and jumps on his own, and is able to interact with

people and his environment. The medical records further

indicate that Tyler scores within the range of average, albeit

at the low-end of average, for the physical activities for which

he was tested. Further, Dr. Fernandez's opinion, as expressed

in his Affidavit and accompanying report, supplements the

information in the medical records and supports a finding that

Tyler is not permanently and substantially physically impaired.

Dr. Fernandez is of the opinion "that Tyler did not sustain a

permanent and substantial physical impairment as a result of

oxygen deprivation or mechanical injury occurring during the

course of labor, delivery or the immediate postdelivery period

in the hospital," even though his mental impairment will be

permanent. In so concluding, Dr. Fernandez documented the

results of his examination, as well as his conclusions, in

pertinent part, as follows:

PHYSICAL EXAMINATION: Weight 38 pounds.

Height 39 inches. Head circumference 47.75

cm. Pulse rate 88. Respiratory rate 18.

There were no dysmorphic features or

significant skin abnormalities. Heart,

lungs, and abdomen were normal. There were

no orthopedic abnormalities. He was active

and his attention span was short. He was

able to draw circles but could not intersect

lines even when demonstrated to him. He

named 3 of 3 colors correctly (green=gee,

blue=bu, red=re). He pointed to several

body parts (nose, eye, and belly) but not

his ears. He pointed correctly to pictures

of animals and he named them although his

words were not clear. At times he became

restless and wanted to leave the room and

when frustrated he bit his hand and tried to

hit his father. Mr. Masterton was able to

calm Tyler down by speaking gently and

holding him. Tyler was not able to follow

prepositional requests (I asked him to put

an object on a chair, under a chair, and

behind a chair but he did not understand

these directions). He named a pencil but

could not tell me what you do with one.

Pupils were equal and briskly reactive to

light. I was unable to visualize his optic

nerves in detail but there was no gross

abnormality noted. He had a subtle right

esophoria. Face was symmetric. Palate and

tongue midline. Muscle tone normal and

there was no focal or lateralized weakness.

He walked well independently, ran and jumped

and hopped in place. He reached accurately

with either hand and without tremor. He is

left-handed but he also has good use of his

right hand. He stacked five 1-inch cubes

using either hand. He built a bridge with

cubes when this was demonstrated to him. He

climbed onto the examining table without

assistance. Deep tendon reflexes 2. There

are no pathological reflexes.

* * *

Tyler's motor and cognitive development has

been delayed but he is improving. At this

time I do not find evidence for substantial

physical impairment. He appears to have

substantial cognitive impairment but he is

improving and the ultimate outcome with

regard to cognitive function is

indeterminate at this time.

* * *

This addendum follows review of the All

Children's Hospital medical record.

* * *

IMPRESSION: Based on record review there

was evidence for perinatal encephalopathy

probably due to oxygen deprivation. Tyler's

early hypotonia was possibly due at least in

part to hypermagnesemia but this does not

explain the seizures that occurred on day 1.

Also, there was brain MRI evidence for

cerebral ischemia consisting of signal

abnormality on the diffusion-weighted images

and in addition there was MRI evidence for

intracranial hemorrhage. Subsequent brain

MRIs showed evidence for diffuse white

matter injury that probably correlates with

the early ischemic change seen on the

initial MRI.

As previously stated, there is evidence for

substantial mental or cognitive impairment

and while improving it is likely that this

will be permanent. Tyler has secondary

microcephaly with postnatal impairment of

brain growth, likely due to ischemic brain

injury. This is highly predictive of

permanent mental or cognitive impairment.

Also, as previously stated I did not find

evidence for substantial motor impairment

based on my examination of March 19, 2009,

in spite of Tyler's ischemic brain injury.

9. Consequently, for reasons appearing more fully in the

Conclusions of Law, the claim is not compensable.

CONCLUSIONS OF LAW

10. The Division of Administrative Hearings has

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

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

11. The 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.

12. 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), 766.305(1), 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.

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

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

compensation to the claimant(s), provided that the award is

approved by the Administrative Law Judge to whom the claim has

been 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 Chapter 120, Florida

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

14. In discharging this responsibility, the Administrative

Law Judge must make the following determination based on

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.

766.302(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 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.

15. 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

. . . 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.

16. As the claimant, the burden rests on Petitioner to

demonstrate entitlement to compensation under the Plan. See

§ 766.309(1)(a), Fla. Stat.; see also Balino v. Dep't of Health

and Rehabilitative Servs. , 348 So. 2d 349, 350 (Fla. 1st DCA

1977)("[T]he burden of proof, apart from statute, is on the

party asserting the affirmative of an issue before an

administrative tribunal." (citation omitted)).

17. Here, the proof failed to demonstrate that Tyler was

rendered both "permanently and substantially mentally impaired"

and "permanently and substantially physically impaired."

Consequently, given the provisions of Section 766.302(2),

Florida Statutes, Tyler does not qualify for coverage under the

Plan. See also Fla. Birth-Related Neurological Injury Comp.

Ass'n v. Fla. Div. of Admin. 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 Fla., 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 liability, it should be

strictly construed to include only those subjects clearly

embraced within its terms."), approved , Fla. Birth-Related

Neurological Injury Comp. Ass'n , 668 So. 2d 974, 979 (Fla.

1996).

18. 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 claim for compensation filed by Paul David

Masterton on behalf of and as parent and natural guardian of

Tyler Lee Masterton, a minor, is hereby denied and dismissed

with prejudice.

DONE AND ORDERED this 28th day of January, 2010, in

Tallahassee, Leon County, Florida.

S

ELLA JANE P. DAVIS

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 28th day of January, 2010.

ENDNOTE

1/ Subsection 120.57(1)(c) provides: 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.

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 3937 0540 1603)

Paul David Masterton

1806 14th Avenue South

St. Petersburg, Florida 33712

Certified Mail No. 91 7108 2133 3937 0540 1610)

Tana D. Storey, Esquire

Brewton Plante, P.A.

225 South Adams Street, Suite 250

Tallahassee, Florida 32301

(Certified Mail No. 91 7108 2133 3937 0540 1627)

Bayfront Medical Center, Inc.

701 6th Street, South

St. Petersburg, Florida 33701

(Certified Mail No. 91 7108 2133 3937 0540 1634)

Manual Reyes, M.D.

Bayfront Medical Center

701 6th Street, South

St. Petersburg, Florida 33701

(Certified Mail No. 91 7108 2133 3937 0540 1641)

Todd Boren, M.D.

Bayfront Medical Center

701 6th Street, South

St. Petersburg, Florida 33701

(Certified Mail No. 91 7108 2133 3937 0540 1658)

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 3937 0540 1665)

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.