08-005637N Roger And Sara Hubmann, On Behalf Of And As Parents And Natural Guardians Of Maxwell Hubmann, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Tuesday, June 30, 2009.

Summary: The infant was not permanently and substantially mentally and physically impaired. Consequently, the claim is denied.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ROGER AND SARA HUBMANN, ON )

BEHALF OF AND AS PARENTS AND )

NATURAL GUARDIANS OF MAXWELL )

HUBMANN, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 08-5637N

)

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 June 2, 2009, by video

teleconference, with sites in Tallahassee and Pensacola,

Florida.

APPEARANCES

For Petitioners: Roger Hubmann, pro se

Sara Hubmann, pro se

6052 Antelope Street

Milton, Florida 32570

For Respondent: Ronald A. Labasky, Esquire

Young Van Assenderp, P. A.

Gallie's Hall

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Maxwell Hubmann, a minor, qualifies for

coverage under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan).

PRELIMINARY STATEMENT

On November 10, 2008, Roger and Sara Hubmann, on behalf of

and as parents and natural guardians of Maxwell Hubmann

(Maxwell), a minor, filed a petition (claim) with the Division

of Administrative Hearings for compensation under the Plan.

DOAH served the Florida Birth-Related Neurological Injury

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

November 12, 2008, and on February 9, 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 that, although

Maxwell did suffer a traumatic brain injury at birth, he did not

suffer a "birth-related neurological injury," as defined by

Section 766.302(2), Florida Statutes, because he was not

rendered permanently and substantially mentally and physically

impaired. Accordingly, NICA requested that a hearing be

scheduled to resolve the issue of compensability.

At hearing, Respondent's Exhibits 1-4 were received into

evidence. 1 No witnesses were called and no further exhibits were

offered.

The transcript of the hearing was filed June 16, 2009, and

the parties were accorded 10 days from that date to file

proposed orders. However, no proposed orders were filed.

FINDINGS OF FACT

Stipulated facts related to compensability

1. Petitioners, Roger and Sara Hubmann, are the parents of

Maxwell Hubmann, a minor. Maxwell was born a live infant on

March 25, 2008, at Sacred Heart Hospital, a hospital located in

Pensacola, Florida, and his birth weight exceeded 2,500 grams.

2. Obstetrical services were delivered at Maxwell's birth

by Brian Sontag, 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.

Coverage under the Plan

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 . . . caused by

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

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

otherwise compelling, that Maxwell suffered a traumatic brain

injury during the delivery process. (Transcript, pp. 9 and 10;

Respondent's Exhibits 1-4). What remains to resolve is whether

such injury rendered Maxwell permanently and substantially

mentally and physically impaired.

5. To address the nature and significance of Maxwell's

injury, NICA offered the affidavit and report of

Michael Duchowny, M.D., a physician board-certified in

pediatrics, neurology with special competence in child

neurology, and clinical neurophysiology, who evaluated Maxwell

on January 28, 2009. Based on his evaluation, as well as his

review of the medical records, Dr. Duchowny was of the opinion

that while Maxwell suffered a traumatic brain injury during

delivery, his mental function was normal and his motor deficit

was quite mild. In so concluding, Dr. Duchowny documented the

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

follows:

PHYSICAL EXAMINATION today reveals an alert,

well-developed and cooperative, well-

nourished 10-month-old infant. Maxwell

weighs 24 pounds and is 30 inches in height.

The skin is warm and moist. There are no

neurocutaneous stigmata. The hair is blond

and of normal texture. The spine is

straight without dysraphism. The head

circumference measures 46.1 centimeters

which is within standard percentiles. The

anterior and posterior fontanels are patent

and flat. There are no cranial or facial

anomalies or asymmetries. The tongue and

palate are moist. The neck is supple

without masses, thyromegaly or adenopathy.

The cardiovascular, respiratory, and

abdominal examinations are unremarkable.

Maxwell's NEUROLOGICAL EXAMINATION reveals

him to be alert, cooperative and fully

attentive. He is quite sociable and

maintains an age appropriate stream of

attention. He has good central gaze

fixation with conjugate following movements.

The pupils are 3 mm and react briskly to

direct and consensually presented light.

Funduscopic examination revealed no abnormal

retinal findings. There are no significant

facial asymmetries of movement. The uvula

is midline and the pharyngeal folds are

symmetric. Tongue movements are full in all

planes. Motor examination reveals an

asymmetry of movement with relatively

greater movement on the right side. The

left upper extremity has mild stiffness but

has full range of motor. There is fine

motor dexterity of both hands but Maxwell

demonstrates a right arm preference and will

preferentially reach for an object with the

right hand. When an object is moved to the

left, he will ultimately offer the left and

readily transfers between hands. He has

symmetrical movement of both legs. He has

well-developed traction and grasp responses

and good head control for age. The deep

tendon reflexes are slightly exaggerated

being 3 at the knees and biceps. There are

no pathologic reflexes. Plantar responses

are downgoing. He can stand and bear weight

with good axial tone and support does not

take steps independently. He has good

sitting balance as well. Sensory

examination is intact to withdrawal of all

extremities to stimulation. Neurovascular

examination reveals no cervical, cranial or

ocular bruits and no temperature or pulse

asymmetries.

In SUMMARY, Maxwell's neurological

examination reveals that his motor

developmental milestones are on time despite

a very mild asymmetry of movement and muscle

tone in the upper extremities. He is

preferentially a right hander due to the

motoric asymmetry. In other respects,

Maxwell's neurologic status is quite good

and his overall level of mental functioning

appears to be on target at age level.

I have had an opportunity to fully review

the medical records which were mailed on

January 12, 2009. The records indicate that

Maxwell's neurologic problems at birth were

the result of mechanical injury acquired

during the delivery process. However, he

has made remarkable progress and his mental

function is normal and his motor deficit is

quite mild . . . . (Respondent's Exhibits 3

and 4).

6. Here, the opinions of Dr. Duchowny were logical,

consistent with the record, not controverted, and not shown to

lack credibility. Consequently, it must be resolved that

Maxwell's brain injury did not render him permanently and

substantially mentally and physically impaired. See 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.").

CONCLUSIONS OF LAW

7. The Division of Administrative Hearings has

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

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

8. 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.

9. 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.

10. 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.

11. 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.

12. 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.

13. As the proponents of the issue, the burden rested on

Petitioners to demonstrate that Maxwell suffered a "birth-

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

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.").

14. Here, the proof failed to demonstrate that Maxwell was

"permanently and substantially mentally and physically

impaired." Consequently, given the provisions of Section

766.302(2), Florida Statutes, Maxwell 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);

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 conjunctive

and can only be interpreted to require both substantial mental

and substantial physical impairment.).

15. 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 Roger and

Sara Hubmann, on behalf of and as parents and natural guardians

of Maxwell Hubmann, a minor, is dismissed with prejudice.

DONE AND ORDERED this 30th day of June, 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 30th day of June, 2009.

ENDNOTE

1/ Respondent's Exhibit 2 (a report by Donald Willis, M.D.,

summarizing his review of the medical records related to

Maxwell's birth, and opinion regarding the cause of his brain

injury), and Respondent's Exhibit 3 (a report by Michael

Duchowny, M.D., summarizing the results of his neurological

evaluation of Maxwell, and opinion regarding the cause of his

brain injury and the significance of his impairments) were

received into evidence with the understanding that, if called to

testify, Doctors Willis and Duchowny would testify consistent

with their reports. (Transcript, p. 8).

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. 7008 3230 0001 6307 9463)

Roger Hubmann

Sara Hubmann

6052 Antelope Street

Milton, Florida 32570

(Certified Mail No. 7008 3230 0001 6307 9470)

Ronald A. Labasky, Esquire

Young Van Assenderp, P. A.

Gallie's Hall

225 South Adams Street, Suite 200

Tallahassee, Florida 32301

(Certified Mail No. 7008 3230 0001 6307 9487)

Charlene Willoughby, Director

Consumer Services Unit - Enforcement

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7008 3230 0001 6307 9494)

Dr. Brian Sontag

5153 North Ninth Avenue, Suite 205

Pensacola, Florida 32504

(Certified Mail No. 7008 3230 0001 6307 9500)

Sacred Heart Hospital

5151 North Ninth Avenue

Pensacola, Florida 32504

(Certified Mail No. 7008 3230 0001 6307 9531)

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.