09-006632N Brian Grayson, As Parent Of Kayla Grayson, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Wednesday, May 19, 2010.

Summary: The Statute 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

BRIAN GRAYSON, AS PARENT OF )

KAYLA GRAYSON, A MINOR, )

)

Petitioners, )

)

vs. ) Case No. 09-6632N

)

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

)

Respondent. )

)

SUMMARY FINAL ORDER

Pursuant to notice, the Division of Administrative

Hearings, by Administrative Law Judge, Ella Jane P. Davis, held

a hearing in the above-styled case on April 15, 2010, by

telephonic conference call.

APPEARANCES

For Petitioner: Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

For Respondent: Marsha E. Rule, Esquire

Rutledge, Ecenia & Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32302-0551

STATEMENT OF THE ISSUE

Whether an award authorized in Section 766.31(1)(b)1.,

Florida Statutes, to the parents of a child found to have

sustained a birth-related neurological injury may exceed

$100,000. (Stipulated Issue.) 1

PRELIMINARY STATEMENT

On March 15, 2006, Rosalin Troupe, “on behalf of and as

parent and natural guardian of Kayla Grayson, a minor,” filed a

Petition with the Division of Administrative Hearings (DOAH) for

benefits under the Florida Birth-Related Neurological Injury

Compensation Plan (Plan). That cause was assigned DOAH Case No.

06-0923N. After an extended pre-trial period, that cause was

resolved by agreement of the parties, and on September 21, 2007,

the Administrative Law Judge entered a Final Order Approving

Stipulation and Joint Petition for Compensation of Claim Arising

Out of Florida Birth Related Neurological Injury Pursuant to

Chapter 766, Florida Statutes.

On November 19, 2009, Rosalin Troupe filed, in DOAH Case

No. 06-0923N, a “Petition to Enforce Compliance with Stipulation

and Joint Petition Pursuant to Final Order of September 21,

2007,” claiming that NICA had denied or refused to pay for

family residential or custodial care from September 21, 2007, to

the date of filing the Petition to Enforce; that a determination

such care is necessary was sought; and requesting attorney’s

fees and reasonable expenses (costs).

On December 4, 2009, Brian Grayson, “as parent of

alleging that he is the natural father of Kayla Grayson, and

that he (in addition to Rosalin Troupe, Kayla’s mother), is

entitled to a parental award up to $100,000. Mr. Grayson’s

Petition was docketed as new DOAH Case No. 09-6632N, the instant

case.

In 2009, both Petitioners were represented by the same

counsel.

DOAH Case Nos. 06-0923N and 09-6632N were consolidated by

an Order entered February 4, 2010, and hearing was ultimately

noticed for April 15, 2010, by video-teleconference.

On March 26, 2010, Respondent NICA filed two Motions for

Summary Final Order, one motion addressing each Petition,

respectively. Neither Petitioner responded to either motion.

On April 6, 2010, Msoupe filed a Notice of Voluntary

Dismissal Without Prejudice in DOAH Case No. 06-0923N. 2 On

April 16, 2010, an Order Closing File 06-0923N was entered.

On April 15, 2010, argument on Respondent’s Motion for

Summary Final Order, filed March 26, 2010, in the instant case,

DOAH Case No. 09-6632N, was heard telephonically. The parties’

Joint Prehearing Stipulation (Joint Exhibit A) 3 has been

considered, as well as stipulated exhibits NICA-1 through

NICA-9. 4

A Transcript was filed on May 3, 2010. Petitioner’s

Proposed Final Order was filed one day late, but both parties’

proposed final orders have been considered.

FINDINGS OF FACT

1. On March 15, 2006, Rosalin Troupe, as parent and

natural guardian of Kayla Grayson, a minor, petitioned for

benefits pursuant to Florida Statutes Section 766.301, et seq .

The case was docketed as DOAH Case No. 06-0923N. (Stipulated

Fact No. 1.)

2. 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. (Stipulated Fact No. 2.)

3. Pursuant to Section 766.309, Florida Statutes, the ALJ

must make all NICA awards, which includes [sic] 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. (Stipulated Fact No. 3.)

4. In a typical covered claim, NICA does not customarily

argue that the parental award should be less than the full

$100,000 authorized. (Stipulated Fact No. 4.)

5. Once the ALJ has ordered payment of a parental award in

the amount of $100,000, unless otherwise ordered by the ALJ,

NICA pays the $100,000 parental award by check made payable to

the petitioning parent (if there is only one parent petitioning)

or jointly to both parents (if both the parents are

petitioning). 5 (Stipulated Fact No. 5.)

6. 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.

(Stipulated Fact No. 6.) 6

7. Msoupe’s March 15, 2006 Petition reflects that she

was the sole petitioner in DOAH Case No. 06-0923N. (Stipulated

Fact No. 7.)

8. NICA, Msoupe, and other parties participating in

the proceeding [DOAH Case No. 06-0923N] eventually agreed that

Msoupe’s claim was compensable and executed a Stipulation,

which was approved by Final Order dated September 21, 2007.

(Stipulated Fact No. 8. Bracketed material provided for

clarity.)

9. NICA issued its check number 60804 in the amount of

$100,000, to Kayla M. Grayson, Minor, and Rosalin Troupe as

Natural Guardian, on October 9, 2007. Msoupe endorsed and

cashed the check, and accepted the proceeds. (Stipulated Fact

No. 9.)

10. Brian Grayson is the natural father of Kayla Grayson

and her older brother, Bryan Grayson, Sr. [sic]. He was not a

petitioner in DOAH Case No. 06-0923N, did not enter an appearance

therein, and did not execute the Stipulation in that case.

(Stipulated Fact No. 10.) The undersigned interprets this

stipulation to mean that Brian Grayson, Petitioner herein, is

the natural father of Kayla Grayson and Kayla’s older brother,

Bryan Grayson, Jr., and that Petitioner-parent, Brian Grayson,

Sr., the Petitioner herein, was not a Petitioner in DOAH Case

No. 06-0923N, did not enter an appearance therein, and did not

execute the Stipulation in that case.

11. Mr. Grayson was living with Msoupe at the time of

Kayla’s birth, and was present when she [Kayla] was born. He

and Msoupe met with a NICA representative in their home

while Msoupe’s petition was pending. (Stipulated Fact No.

11. Bracketed material provided for clarity.)

12. Mr. Grayson accompanied Msoupe and Kayla on

medical visits, including Kayla’s initial neurological

examination arranged by NICA on June 8, 2006, by Dr. Paul Carney

at the Shand’s [sic] Children’s Hospital at the University of

Florida in Gainesville, Florida. NICA paid for mileage, hotel

and meals for this trip. Mr. Grayson also accompanied

Msoupe and Kayla on a visit to Orlando Regional Healthcare

to obtain an EEG for Kayla. Both visits were arranged and paid

for by NICA for the purpose of determining whether Kayla’s

injury was compensable. (Stipulated Fact No. 12.)

13. Mr. Grayson was aware that Msoupe applied for and

received NICA benefits for Kayla. (Stipulated Fact No. 13.)

14. Msoupe does not claim that NICA denied or refused

to pay for any family residential or custodial care expenses

before September 21, 2007. (Stipulated Fact No. 14.)

15. Mr. Grayson, Petitioner herein, has now filed the

instant case, requesting that NICA pay an additional parental

award of $100,000 to him, on behalf of Kayla, but NICA has

declined, based on its legal interpretation of Section

766.31(1)(b)1., Florida Statutes, which sub-section NICA

contends, in this instance, limits the parental award to

$100,000 for both parents, combined.

16. 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.)

17. Petitioner Grayson contended that Subsection

766.31(1)(b)1. entitles him to a parental award of $100,000.

because he is Kayla Grayson’s natural father and because an

Administrative Law Judge determined in 2007, that Kayla suffered

a compensable birth-related neurological injury. He contends

that the statute should be interpreted as authorizing an award

of up to $100,000 for each claimant, or potential claimant,

independent of the other(s); and that if the statute only

authorizes an award of $100,000 for both parents in the

aggregate, whether or not both parents join in the claim, it

raises constitutional concerns related to due process, equal

protection, and access to the courts. 7

18. Conversely, NICA contends that Subsection

766.31(1)(b)1. is part of a cohesive statutory scheme

established by Sections 766.301-766.316, Florida Statutes,

designed to promote a specifically stated legislative goal, and

is neither ambiguous nor subject to Petitioner’s interpretation. 8

NICA interprets the subsection as authorizing an award (one

award) to the parents or guardians of an eligible infant in a

total amount not to exceed $100,000, regardless of whether there

are one or two parents filing the claim. Thus, NICA argues that

if there are two parents involved in the NICA claim, or even if

they file sequentially, then a maximum award of $100,000, is

authorized to be awarded to both parents, combined.

19. However, both parties concede that the Administrative

Law Judge is without authority to address the constitutionality

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

20. The statutory 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.

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

Florida Statutes, 9 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,[ 10 ] 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), Section 5, page 3. (NICA Exhibit 4.)

CONCLUSIONS OF LAW

22. The Division of Administrative Hearings has

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

these proceedings. See § 766.301 et seq .

23. Initially, Petitioner contended that Subsection

766.31(1)(b)1., Florida Statutes, provides for $100,000 to be

paid to each parent individually. Overall, Petitioner did not

so much argue that the statute clearly provides for such awards

or that the statute creates ambiguity so that it may be

interpreted to require that $100,000 be paid to each parent

individually. Rather, he argued that the statute should be

interpreted to authorize an award of up to $100,000 for each

parent or guardian, independent of the other, and regardless of

whether one parent joins in the claim prior to payout.

According to Petitioner, to do otherwise would raise

constitutional concerns under federal and Florida law. He also

asserted the desirability of the Legislature amending NICA’s

existing unified statutory “no fault” scheme to conform, at

least in disbursement aspects, to Florida’s tort system within

the circuit courts of this state, and conceded that his recourse

is not in this forum where NICA has already disbursed the entire

$100,000 to one parent.

24. The ultimate goal in construing a statutory provision

is to give effect to legislative intent. BellSouth Telecomm.,

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. "Ambiguity suggests that reasonable persons can find

different meanings in the same language." Forsythe v. Longboat

Key Beach Erosion Control Dist. , 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 Bd. of Broward County , 834 So. 2d

228, 232 (Fla. 1st DCA 2002).

25. Here, it is unnecessary to address Petitioners’

constitutional concerns, since Section 766.31(1)(b)1. clearly

speaks of an award , in the singular, to the parents , in the

plural, and, 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, who make a

claim on the Neurological Birth-Related Injury Compensation

Plan, and not for each parent or legal guardian, individually, 11

whether they file a claim or not. 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, Fla. Hosp. v. Agency for

Health Care Admin. , 823 So. 2d 844, 849 (Fla. 1st DCA 2002), or

to effect the legislative changes Petitioner seeks.

Nevertheless, since Petitioner may challenge the

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

Statutes, by appeal, he has that right, and he has been accorded

here the opportunity to build a 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:

1. Respondent Florida Birth-Related Neurological Injury

Compensation Association’s Motion for Summary Final Order is

granted.

2. Petitioner Grayson’s (father’s) claim for additional

compensation (a second $100,000.00) above and beyond that

$100,000.00 already paid to the mother, under the provisions of

Subsection 766.31(1)(b)1., Florida Statutes, is denied and

dismissed with prejudice.

DONE AND ORDERED this 19th day of May, 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 19th day of May, 2010.

ENDNOTES

1/ Because, in this case, an award of $100,000, was previously

made to only one of the parents, a more accurate way to state

the issue might be, "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."

2/ At a telephonic prehearing conference on April 9, 2010, the

parties orally stipulated that the effect of this Notice of

Voluntary Dismissal Without Prejudice had no effect on NICA’s

continuing obligation for expenses under the prior Stipulation

and Joint Petition and Final Order Approving Stipulation and

Joint Petition for Compensation of Claim, but that it did

terminate the claim for family residential or custodial care

filed November 19, 2009, titled “Petition to Enforce Compliance

with Stipulation and Joint Petition Pursuant to Final Order of

September 21, 2007”.

3/ By agreement of the parties (TR-5), the undersigned made

handwritten interlineations on this exhibit and initialed them

“ALJ”.

4/ NICA Exhibit 1: Stipulation and Joint Petition for

Compensation Arising Out of Florida Birth-Related Neurological

Injury Pursuant to Chapter 766 Florida Statutes, with regard to

the 2006-0923N case. NICA Exhibit 2: Final Order Approving

Stipulation and Joint Petition for compensation of Claim Arising

out of Florida Birth-Related Neurological Injury Pursuant to

Chapter 766, with regard to the 2006-0923 case. NICA Exhibit 3:

Chapter 89-186, Laws of Florida (1989); NICA Exhibit 4: Florida

House of Representatives Insurance Committee Final Staff

Analysis & Economic Impact Statement on CS/CS/HB 339 (1989);

NICA Exhibit 5: Academic Task Force for Review of the Insurance

and Tort Systems, “Medical Malpractice Recommendations,

November 6, 1987; NICA Exhibit 6: Academic Task Force for

Review of the Insurance and Tort Systems, “Final Fact Finding

Report on Insurance and Tort Systems.” NICA Exhibit 7: Academic

Task Force for Review of the Insurance and Tort Systems, “Final

Recommendations”, March 1, 1988; Joint Exhibit 8: Governor’s

Select Task Force on Health Care Professional Liability

Insurance, “Report and Recommendations,” January 29, 2003

(excerpts pertaining to NICA—pages 301-308); and NICA Exhibit 9:

Academic Task Force for Review of the Insurance and Tort

Systems, “Preliminary Fact Finding Report on Medical

Malpractice,” August 14, 1987.

5/ A typographical error in the Parties’ Stipulated Fact No. 5

has been corrected. The Stipulation actually reads “ . . . if

there both parents are petitioning).”

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

memorialized in Sarah Wojtowicz as Parent and Natural Guardian

of Levi Wojtowicz and James M. Wojtowicz v. Fla. Birth Related

Neurological Injury Comp. Ass'n. , DOAH Case No. 93-4268N (Final

Order: July 22, 1994), and Crystal Waddell as Parent and Natural

Guardian of Chelsey Davis, a Minor v. Fla. Birth Related

Neurological Injury Comp. Ass'n. and William Davis , DOAH Case

No. 98-2991N, (Final Order: May 11, 1999).

7/ Although the record is silent as to whether Petitioner

Grayson shared in the proceeds of Msoupe’s 2006 NICA claim

on behalf of Kayla, the record clearly shows that he knew about

Msoupe’s March 2006 NICA claim and $100,000 award in

September 2007, and that he did not attempt to intervene in that

claim. Moreover, benefits paid to a parent(s) or guardian(s)

are intended for the benefit of the child.

Petitioner suggested NICA should have an obligation to search

out all potential claimants, such as himself, and that NICA

and/or the ALJ should have an obligation to apply to a Circuit

Court, pursuant to Section 744.387(3)(a), Florida Statutes, for

an order permitting distribution of all or a part of the

$100,000, to one or all of the potential claimants named in

Section 766.302 (3), regardless of whether any of them actually

intervene. However, the NICA statutory scheme imposes no such

obligations.

Petitioner’s position causes one to wonder how to address a

situation where a father or mother abandons the adult

relationship and has no presence in the infant’s life, or what

variety of payment scenarios could be envisioned if a claiming

or a putative father turns out not to have sired the infant on

whose behalf the mother makes the claim. These are apparently

not problems in the instant case.

8/ Section 766.301 discusses the legislative intent in

establishing the Neurological Birth-Related Injury Compensation

Plan and in removing such cases from the tort system. Sections

766.301—766.316, establish a cohesive statutory scheme, state no

authority for NICA or the ALJ to search out potential claimants,

and vests exclusive jurisdiction in the ALJ to make any and all

awards. Respondent suggests that Petitioner proposes

obligations inconsistent with the applicable statutes.

9/ 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.

10/ 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.

11/ Accord , Final Order in Angela Samples and Kenneth Ray

Samples, Individually and as Parents and Next Friends of

MacKenzie Samples, a Minor v. Fla. Birth-Related Neurological

Injury Comp. Ass'n. , DOAH Case No. 08-5147N (Final Order:

September 1, 2009) oral argument heard in Florida’s Fifth

District Court of Appeals on May 4, 2010; and Aurora Bryant and

Anthone Bryant individually and as parents and next friends for

Brazil Bryant v. Fla. Birth-Related Neurological Injury Comp.

Ass'n. , DOAH Case No. 09-1750N (Final Order: February 19, 2010)

on appeal to the Second District Court of Appeal.

COPIES FURNISHED :

(Via Certified Mail)

Ronald S. Gilbert, Esquire

Colling, Gilbert, Wright & Carter, LLC

801 North Orange Avenue, Suite 830

Orlando, Florida 32801

(Certified Mail No. 7008 1820 0002 9840 5430)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(Certified Mail No. 7008 1820 0002 9840 5447)

Marsha E. Rule, Esquire

Rutledge, Ecenia & Purnell, P.A.

Post Office Box 551

Tallahassee, Florida 32302-0551

(Certified Mail No. 7008 1820 0002 9840 5454)

Amy Rice, Acting Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C-75

Tallahassee, Florida 32399-3275

(Certified Mail No. 7008 1820 0002 9840 5461)

Elizabeth Dudek, Deputy Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7005 1820 0002 9840 5478)

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 Fla. Birth-Related Neurological Injury

Comp. Ass'n. 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.