13-004646N Jessica Ibasfalean And Cody Ibasfalean, Individually And As Parents And Natural Guardians Of Landon Ibasfalean, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Monday, December 15, 2014.

Summary: Child is not substantially and permanently mentally and physically impaired.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

JESSICA IBASFALEAN and CODY

IBASFALEAN, individually and as

parents and natural guardians of

LANDON IBASFALEAN, a minor,

Petitioners,

vs. Case No. 13 - 4646N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

LAKEWOOD RANCH MEDICAL CENTER

AND JENNIFER SWANSON, M.D.,

Intervenors.

_______________________________/

FINAL ORDER

Pursuant to an Order dated September 15, 2014, the parties

were gra nted leave to submit a stipulated factual record and

written argument in lieu of a contested hearing in this case.

The stipulated record with CD was filed on October 10, 2014; the

stipulated record with all printed exhibits was filed on

October 15, 2014.

APPEARANCES

For Petitioner s : Armando Lauritano, Esquire

Morgan and Morgan, P.A.

One Tampa City Center

201 North Franklin Street, 7th Floor

Tampa, Florida 3 3602

For Respondent: M. Mark Bajalia, Esquire

Brennan, Manna and Diamond, P.L.

800 West Monroe Street

Jacksonville, Florida 32202

For Intervenor Lakewood Ranch Medical Center :

Jeffery L. Blostein, Esquire

The Law Office of Jay Cohen, P.A.

100 Southeast Third Avenue, Suite 1500

Fort Lauderdale, Florida 33394

For Intervenor Jennifer Swanson, M.D. :

Hughes Hamilton Rice, Esquire

Bush, Graziano, Rice and Platter, P.A.

Post Office Box 3423

Tampa, Florida 33601

STATEMENT OF THE ISSUE

The iss ue in this case is whether Landon Ibasfal ea n suffered

an injury for which compensation should be awarded under the

Florida Birth - Related Neurological Injury Compensation Plan

(Plan).

PRELIMINARY STATEMENT

On November 25, 2013, Jessica Ibasfale a n and Cody I basfale a n,

individually and as parents and natural guardians of Landon

Ibasfale a n (Landon), a minor, filed a Petition for Benefits

Pursuant to Florida Statute Section 766.301 et seq. (Petition) ,

with the Division of Administrative H earings (DOAH). The Pet ition

alleged that Landon suffered brain damage as a result of a birth -

related neurological injury.

The Petition named Jennifer Swanson, M.D., as the physician

providing obstetric services of Landon, and stated that Landon was

born at Lakewood R anch Medica l Center which is located in

Bradenton, Florida, on November 21, 2011.

DOAH served the Florida Birth - Related Neurological Injury

Compensation Association (NICA) and Jennifer Swanson, M.D., with a

copy of the Petition on December 2, 2013 , and served Lakewo od

Ranch Medical Center on November 29, 2013.

On December 4, 2013, Dr. Swanson filed a Petition to

Intervene on Behalf of Jennifer Swanson, M.D., which was granted

by Order dated January 3, 2014. On December 5, 2013, Lakewood

Ranch Medical Center filed Lakewood Ranch Medical CenterÓs

Petition to Intervene, which was granted by Order dated

December 23, 2013.

On April 23, 2014, NICA filed a response to the Petition,

giving notice that the alleged injury did not "meet the definition

of a 'birth - related neu rological injury' as defined in section

766.302(2), Florida Statutes, which specifically requires that the

injury render 'the infant permanently and substantially mentally

and physically impaired.'" NICA requested that a hearing be

scheduled to resolve wh ether the claim was compensable.

A final hearing was scheduled for September 30, 2014. On

September 12, 2014, the parties filed a Joint Motion to Submit

Stipulated Factual Record in Lieu of a Contested Hearing. On

September 15, 2014, an Order was entere d granting the parties

leave to submit a stipulated record in lieu of a live

administrative hearing.

On October 10, 2014, the parties filed a Stipulated Record

with a CD of the stipulated exhibits. On October 15, 2014, the

parties filed a Stipulated Reco rd, consisting of printed copies of

Joint Exhibits A through Y. Included in these exhibits is the

deposition testimony of three witnesses. Petitioners submitted

the deposition testimony of Jessica Ibas f alean and Cody

Ibasfale a n. Respondent submitted the deposition testimony of

Michael Duchowny, M.D. Intervenors did not present testimony of

any witnesses.

On October 10, 2014, the parties filed a Pre - H earing

Stipulation, in which they agreed to certain facts as set forth in

section E of the Pre - H earing St ipulation. These facts have been

incorporated into this Final Order.

On October 16, 2014, an Order was entered extending the time

in which the parties must submit proposed final orders.

Respondent and Intervenors timely filed their proposed final

order s, which have been carefully considered in the drafting of

this Final Order. Petitioners did not file a proposed final

order, but stated their position on the issues in the Pre - Hearing

Stipulation.

FINDINGS OF FACT

1. Jessica and Cody Ibasfale a n are the natural parents of

Landon Ibasfale a n.

2. Landon was born a live infant at Lakewood Ranch Medical

Center, a licensed hospital in Bradenton, Florida, on November 21,

2011.

3. The physician providing obstetrical services at the time

of LandonÓs birth was Jennifer Swanson, M.D. At all material

times, Dr. Swanson was a participating physician in the Florida

Birth - Related Neurological Compensation Plan. NICA notice is not

at issue as to Dr. Swanson or Lakewood Ranch Medical Center in

this proceeding.

4. Landon weighed in excess of 2,500 grams at birth.

5. The parties are in agreement that Landon suffered an

injury to his brain. The parties, however, disagree as to the

timing and cause of that injury, and, specifically, whether such

injury was caused b y oxygen deprivation or mechanical injury

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

immediate post - delivery period. The Petitioners and Intervenors

take the position that LandonÓs brain injury was caused by oxygen

deprivation occu rring in the course of labor, delivery or

resuscitation in the immediate post - delivery period. Respondent

contends that LandonÓs brain injury was more likely than not

prenatally acquired.

6. Petitioner Jessica Ibasfale a n was admitted to Lakewood

Ranch M edical Center on November 21, 2011. Her labor began around

0635 and her membranes were artificially ruptured at 0715.

Mrs. Ibasfale a n labored from 0700 to 1708 when the decision was

made to perform a C - Section. Landon was born via C - Section at

1757.

7. Cephalopelvic disproportion and tachycardia occurred

during labor. Intervenor, Dr. Swanson, performed a C - Section.

During the C - Section, LandonÓs head was stuck in his motherÓs

Ðvery narrow pelvisÑ and meconium stained amniotic fluid was

noted. Dr. Swan sonÓs operative note stated that the C - Section

events lasted approximately nine minutes. LandonÓs APGAR scores

were 2 (one minute), 5 (five minutes), and 7 (ten minutes).

8. The cord pH was 6.9.

9. Landon was intubated upon delivery, suctioned, and bag ged

with 100% bag mask valve.

10. Landon was admitted to the NICU immediately after

delivery for perinatal distress. He was observed at 0658 on

November 22, 2011, to have seizure activity.

11. Landon was then transferred to All ChildrenÓs Hospital.

His discharge diagnoses from Lakewood Ranch Medical Center were

hypovolemia (resolved), metabolic acidosis (resolved), respiratory

distress (resolved), meconium stained amniotic fluid, sepsis,

perinatal asphyxia, and at risk for seizures.

12. Landon was trea ted at All ChildrenÓs H ospital where he

was treated from November 22, 2011 , through December 5, 2011.

While at All ChildrenÓs H ospital, Landon received a cranial CT

scan, a video EEG, and a brain MRI. LandonÓs Discharge Summary

from All ChildrenÓs Hospita l lists the following: hypoxic

ischemic encephalopathy, history of seizures, anemia, patent

foramen ovale, and subgaleal bleed under the category of ÐActive

Diagnoses at Time of Discharge.Ñ

13. Landon was discharged from All ChildrenÓs Hospital on

Dec ember 5, 2011, with prescriptions for Phenobarbital 6.5 mg PO

twice daily and Poly - vi - sol with iron 1 ml PO once daily. Landon

is no longer on these medications.

14. NICA retained Donald C. Willis, M.D., 1/ to review

LandonÓs medical records. Dr. Willis made the following findings

and expressed the following opinion:

I have reviewed the medical records for the

above individual. The mother, Jessica Lynn

Ibasfale a n was a 26 year old GI with an

uncomplicated prenatal course. She was

admitted to the hospit al at 39 weeks for

induction of labor due to advanced cervical

dilation at term. Her cervix dialated 6 cms

at the time of hospital admission.

The fetal heart rate (FHR) monitor tracing

during labor was reviewed. The baseline FHR

was 150 bpm on admission with normal heart

rate variability. Variable FHR decelerations

with uterine contractions began about 4 hours

after admission. The FHR dropped to about 90

bpm with contractions. The decelerations

became more prolonged with a slow recovery to

baseline ab out 2 hour[s] prior to delivery. A

baseline tachycardia of 180 bpm was present

when the FHR monitor was removed for delivery.

Delivery occurred about 30 minutes after the

FHR monitor was removed.

After being complete and pushing for two

hours, Cesarean s ection delivery was done for

failure to progress and a non - reassuring FHR

pattern. Birth weight was 3,202 grams (7 lbs

1 oz).

The baby was depressed at birth. Apgar scores

were 2/5/7. Cord blood gas was consistent

with acidosis with a pH of 6.9. The n ewborn

had no respiratory effort, no tone and poor

color. Intubation was done for meconium with

meconium present below the vocal cords. This

was suctioned. Bag and mask ventilation was

given for 4 minutes, followed with blow - by

oxygen. The babyÓs first cry was at 7

minutes.

The babyÓs condition was considered unstable

upon arrival at the NICU. Color remained pale

or cyanotic and muscle tone was poor. The

baby was immediately intubated. Chest X - R ay

was clear. Respiratory effort improved and

the bab y remained intubated only 30 minutes.

Seizure activity was noted at 13 hours after

birth. The baby was transferred from Lakewood

Medical Center to All ChildrenÓs Hospital for

evaluation and management.

The baby was diagnosed with hypoxic ischemic

enceph alopathy at All ChildrenÓs Hospital.

The initial platelet count was low at 95,000.

Platelet transfusions were given. Liver

function studies were also elevated.

MRI of the brain DOL 7 identified focal areas

of ischemia.

In summary, an abnormal FHR patter n developed

during labor and resulted in delivery of a

depressed newborn. The umbilical cord blood

pH was 6.9, consistent with acidosis. Seizure

activity was noted at 13 hours of life. MRI

was consistent with hypoxic ischemic

encephalopathy.

There was an apparent obstetrical event that

resulted in loss of oxygen to the babyÓs brain

during labor, delivery, and continuing into

the immediate post delivery period. The

oxygen deprivation resulted in brain injury.

I am not able to comment about the severity of

the brain injury.

15. Dr. WillisÓ opinion that there was an apparent

obstetrical event that resulted in loss of oxygen to the babyÓs

brain during labor, delivery, and continuing into the immediate

post - delivery period which resulted in brain injury i s credited.

16. When Landon was four weeks old, he was seen by

Dr. Joseph Casadonte, a pediatric neurologist. Dr. Casadonte

also saw Landon when he was three months, three weeks old.

According to Dr. CasadonteÓs notes from an assessment on

March 14, 201 1, Landon did not have any further seizure or

seizure - like activity and had been weaned of f phenobarbital.

17. Dr. Casadonte examined Landon again on January 27,

2014. Dr. CasadonteÓs notes reflect that he informed LandonÓs

parents that Landon has a mild form of cerebral palsy, and that

he is doing very well cognitively. Dr. Casadonte noted that

LandonÓs gait is normal.

18. On May 22, 2014, at LandonÓs 2 1/2 year well - child

visit, his pediatrician, Dr. Federico Frias, noted that LandonÓs

fine motor ski lls and his gross motor skills were abnormal.

Dr. Frias also noted that LandonÓs language development was

normal. Dr . FriasÓ notes indicate that he recommended

continuation of physical and occupational therapy which,

according to Dr. FriasÓ notes, he had been receiving once a week.

19. At her deposition on August 27, 2014, Mrs. Ibasfale a n

confirmed that Landon was receiving OT once a week for one hour

and PT once a week for one - half hour. He has the ability to feed

himself, can use a spoon, and can dr ink from a sippy cup, as long

as it has a straw. She testified that Landon does fall but it

has become Ðless and less.Ñ Landon is an active child and enjoys

throwing balls for the family dog to catch. He can put his arms

inside his sleeves when he is be ing dressed. He can pull off his

socks and shoes.

20. When asked whether any physician had ever told her that

in the future it is more likely than not that he will have any

mental impairment or cognitive delays, Mrs. Ibasfale a n replied,

ÐThey never told me that, no.Ñ

21. At his deposition also taken on August 27, 2014,

Mr. Ibasfale a n was asked if he had observed any cognitive deficit

or shortcomings regarding Landon. Mr. Ibasfale a n replied ÐNo.

Cognitive is pretty appropriate.Ñ

22. Respondent retained Michael Duchowny, M.D., to evaluate

Landon. Dr. Duchowny is board - certified in pediatrics, neurology

with special qualification in child neurology, and in clinical

neurophysiology. He is a senior staff attending in neurology at

Miami ChildrenÓs Hospital where he directs the Comprehensive

Epilepsy Center and neurology training programs. Dr. Duchowny

holds the position of professor, clinical professor of neurology

and pediatrics at the University of Miami School of Medicine and

clinical professor of neuro logy at the FIU College of Medicine.

Dr. Duchowny reviewed LandonÓs medical records and performed an

independent medical examination on Landon on April 9, 2014.

Dr. Duchowny made the following findings and summarized his

evaluation as follows:

MEDICAL H ISTORY:

Landon is a 2 - year - old boy who, according to

his parents, has be e n diagnosed with Ðmild

cerebral palsy.Ñ They noted that Landon has

left - sided weakness affecting both arm and

leg and this affects both his gait and left

hand and arm movement. Howe ver, despite his

weakness, Landon runs and walks on his own,

and his parents are Ðteaching him to jump.Ñ

Landon has been fitted with a left ankle

brace which he wears throughout the day. He

has intermittently worn a left hand splint to

Ðkeep his left thu mb out.Ñ Landon has always

been a right - hander but can use his left hand

to manipulate objects. In terms of motor

development, Landon walked independently at

age 13 months, crawled at 10 months and stood

at 11 - 12 months. His gait is now stable and

he do es not fall excessively, although he is

slightly clumsy. His parents have noted that

LandonÓs hips move Ðfrom side - to - sideÑ and

that he prefers sitting in a ÐWÑ position.

There has been no motor regression and he

continues to make solid progress.

LandonÓ s speech has been exemplary. He began

speaking independently with single words at

age 6 - 7 months and he is now able to speak in

short sentences. Landon knows his letters,

colors, and shapes and has a good

understanding of spoken language. His

parents be lieve he Ðcan recognize some

words.Ñ He has never had speech therapy.

Landon receives both physical therapy and

occupational therapy once weekly for a 90 -

minute session. This is administered at the

Brandon Outpatient Center of All ChildrenÓs

Hospital.

LandonÓs vision and hearing are good. He has

had hearing testing on two occasions with

normal results. His appetite is stable and

he is a good eater. Landon sleeps through

the night and gets approximately 10 - 12 hours

per sleep nightly with an additional nap

daily.

Landon is on no intercurrent medications. He

experienced seizures 12 hours after birth in

the Newborn Intensive Care Unit (NICU)

treated with Ativan, phenobarbital and

phenytoin. Phenobarbital was discontinued at

age three months and phenyt oin was

discontinued at time of hospital discharge.

He has never had subsequent seizures. He

does have allergies to both food and

environmental factors.

* * *

NEUROLOGIC EXAMINATION reveals Landon to be

alert, pleasant and cooperative. He is

somewhat o veractive and socially inattentive

but participates fully in the examination.

He smiles frequently and is playful. Landon

maintains an age appropriate stream of

attention and answers questions with 2 - 3 word

phrases. He appeared to appreciate all

social interactions. The speech sounds are

fluent and well articulated. There is no

drooling.

Motor examination reveals evidence of an

asymmetry of movement characterized by

diminished left - sided movement, primarily in

the upper extremity. There is diminishe d arm

swing when walking but a full passive range

of motion without contractures or atrophy.

There are no fasciculations or adventitious

movements. Landon grasps an object with his

right hand easily and has g oo d fine motor

coordination and thumb - finger op position. In

contrast, he prefers grasping with the right

hand but easily grasps with the left and

performs individual finger movements. When

he grasps an object, he tends to transfer

readily to the right side. He crosses the

midline with his right hand unless an object

is moved laterally to the left side.

* * *

In summary, LandonÓs neurologic examination

reveals mild left hemiparesis with relatively

preserved functionality and range of motion.

He ambulates well, is motorically stable and

evidences no obvious weakness. His cognitive

level of functioning is at age level without

evidence of mental impairment.

I had an opportunity to review records which

were sent on February 5, 2014. They confirm

the parentÓs history of perinatal problems

but provide n o clear history of a hypoxic

insult. LandonÓs CT scan of the brain on

November 22 nd revealed only extra - axial

hemorrhage (outside brain tissue ) and an MRI

obtained on November 28, 2011 revealed

multiple small areas of signal abnormality on

diffusion weigh ted images consistent

with focal ischemic events. These findings

are inconsistent with a hypoxic ischemic

event and do not suggest a mechanical injury.

I therefore do not believe that Landon should

be considered for compensation within th e

NICA program. He does not have a substantial

mental or motor impairment and his perinatal

course is inconsistent with neurological

injury to the brain or spinal cord resulting

from oxygen deprivation or mechanical injury.

23. He further noted in his r eport that LandonÓs gait is

stable and explained further in his deposition taken on

September 23, 2014: Ðwhen I looked at him walking, I thought he

walked in a stable fashion, but there was a tendency, when he

started running, to position the ball of his foot down, and that

is slightly clumsy, yes . . . . But he certainly didnÓt fall, and

he wasnÓt Ï he could certainly ambulate quite well despite this.Ñ

24. Dr. Duchowny was asked if his independent medical

examination of Landon supported the parentsÓ state ments that

Landon had mild CP. He replied, ÐI would say, not really, no. I

guess I would just say it would be very mild CP. I guess I would

put it that way. He does have some motor findings. If you had

to classify it, I think it ultimately would come under the

heading of CP, but it would be very, very mild.Ñ

25. When asked during his deposition about the parentsÓ

disclosure that Landon crawled at 10 months, stood at around 11,

and walked at 13 months, Dr. Duchowny opined that, Ðthese are

normal mile stones.Ñ

26. When asked during his deposition if he found no

evidence of mental impairment, Dr. Duchowny replied, ÐThatÓs

correct.Ñ

27. Dr. DuchownyÓs opinion that Landon does not have a

substantial, permanent physical and mental impairment is

credited.

28. Dr. DuchownyÓs opinion that LandonÓs injury is

inconsistent with a hypoxic ischemic event and is inconsistent

with neurological injury to the brain or spinal cord resulting

from oxygen deprivation is at odds with Dr. WillisÓ opinion

regarding the sa me issue. 2/

29. Dr. WillisÓ opinion that LandonÓs injury was consistent

with hypoxic ischemic encephalopathy is consistent with the

diagnosis at LandonÓs discharge from All ChildrenÓs Hospital

where he received a CT scan, a video EEG, and an MRI.

30. Th e greater weight of the evidence establishes that

that there was an apparent obstetrical event that resulted in

loss of oxygen to LandonÓs brain during labor, delivery and

continuing into the post - delivery period that resulted in brain

injury.

31. Here, the stipulated record demonstrates, along with

Dr. DuchownyÓs expert opinion, that Landon is not permanently and

substantially mentally impaired. W hile Landon has some motor

deficits, these deficits do not render him permanently and

substantially physica lly impaired.

CONCLUSIONS OF LAW

32. The Division of Administrative Hearings has jurisdiction

over the parties to and the subject matter of this proceeding.

§§ 766.301 - 766.316, Fla. Stat. (2011).

33. The Plan was established by the Legislature "to prov ide

compensation on a no - fault basis, for a limited class of

catastrophic injuries that result in unusually high costs for

custodial care and rehabilitation." § 766.301, Fla. Stat. The

Plan applies only to a birth - related neurological injury, which is

de fined in section 766.302(2) as follows:

" Birth - related neurological injury " means

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 l east

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. (emphasis added).

34. The injured infant, her or his personal representative,

parents, depende nts, and next of kin, may seek compensation under

the plan by filing a claim for compensation with DOAH.

§§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The Florida

Birth - Related Neurological Injury Compensation Association, which

administers the P lan, has "45 days from the date of service of a

complete claim . . . in which to file a response to the petition

and submit relevant written information relating to the issue of

whether the injury is a birth - related neurological injury."

§ 766.305(4), Fla . Stat.

35. 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 bee n

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.

36. In discharging this responsibility, the Administrative

Law Judge must make the following determinations based upon all

available evidence:

(a) Whether the injury claimed is a birth -

related neurological i njury. 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

permanentl y 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 that the "infant has sustained

a birth - related neurological injury and that obstetrical services

were delivere d by a participating physician at birth."

§ 766.31(1), Fla. Stat.

37. In the instant case, Petitioners filed a claim alleging

that Landon did sustain a birth - related neurological injury that

is compensable under the NICA plan. As the proponent of the is sue

of compensability, the burden of proof is upon Petitioners.

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

Rehab. 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.").

38. The parties have stipulated that a participating

physician provided obstetric services at LandonÓs birth in a

hospital licensed in Florida. Landon was born a live infant and

weighed m ore than 2,500 grams. NICA agrees that Landon sustained

an injury to the brain, but takes the position that the injury was

not caused by oxygen deprivation during labor, delivery, and

resuscitation in the immediate post - delivery resuscitation period.

Ins tead, NICA contends that LandonÓs brain injury was, more likely

than not, prenatally acquired as a result of placental

insufficiency.

39. Dr. WillisÓ opinion that LandonÓs injury was consistent

with hypoxic ischemic encephalopathy is consistent with the

diagnosis at LandonÓs discharge from All ChildrenÓs Hospital where

he received a CT scan, a video EEG, and an MRI.

40. The greater weight of the evidence establishes that

there was an apparent obstetrical event that resulted in loss of

oxygen to LandonÓs brain during labor, delivery and continuing

into the post - delivery period that resulted in brain injury.

41. The remaining issue to be determined is whether the

injury resulted in a permanent and substantial mental impairment

and a permanent and substant ial physical impairment, inasmuch as

both are required to establish compensability. Fla. Birth - Related

Neurological Injury Comp. Ass'n v. Div. of Admin. Hearings , 686

So. 2d 1349 (Fla. 1997)(the Ð Birnie " decision). Intervenors take

the position that Land on is permanently and substantially

impaired. NICA takes the position that Landon is not permanently

and substantially mentally or physically impaired. Petitioners do

not take a position on this issue.

42. The Legislature did not define "permanently a nd

substantially mentally and physically impaired." However, those

terms should be read in the context of the legislation creating

the Plan. The Legislature intended that only a limited class of

catastrophic injuries be compensable under the Plan.

43. In Matteini v. Florida Birth - Related Neurological Injury

Compensation Association , 946 So. 2d 1092, 1095 (Fla. 5th DCA

2006), the court discussed the criteria for a physical impairment.

Under the Plan, a "physical impairment"

relates to the infant's impai rment of his

"motor abnormalities" or "physical functions,"

which along with the brain injury

significantly affects the infant's mental

capabilities so that the infant will not be

able to translate his cognitive capabilities

into adequate learning or socia l development

in a normal manner.

44. In Adventist Health System/Sunbelt, Inc. v. Florida

Birth - Related Neurological Injury Compensation Association , 865

So. 2d 561, 567 (Fla. 5th DCA 2004), the court in explaining the

Birnie decision stated: "[U]nder NICA, the identification of a

substantial mental impairment may include not only significant

cognitive deficiencies but can include, in a proper case,

additional circumstances such as significant barriers to learning

and social development."

45. The chil d in the Birnie decision was found to have both

permanent and substantial mental and physical impairments,

although tests indicated that he was average or above average in

his cognitive skills and pre - academic skills. The child in Birnie

is described as f ollows:

At the time of the hearing in this case, Eric

was 4 1/2 years old. He was unable to stand

up, walk, or crawl. His only method of

independent mobility was to roll over. The

use of his hands and arms was very limited.

He also had great difficult y talking and/or

communicating and he must take long pauses to

formulate a response to any inquiry.

Eric's brain dysfunction is permanent.

Because Eric's speech is greatly impacted by

his condition, it is virtually certain that he

will always be severely limited in his verbal

expression and other communication skills.

While continued therapy may help him to

communicate better and to become somewhat more

mobile, he will almost certainly never be able

to walk, feed, groom or toilet himself.

* * *

As a di rect result of his injury, Eric will

not be able to communicate, attend school or

otherwise learn and develop intellectually

without substantial accommodation. His social

and vocational development have unquestionably

been significantly impaired.

688 So . 2d at 1352.

46. There is a sharp contrast between Landon and the child

in the Birnie decision. Landon is able to walk and run. Hi s

speech is exemplary. He knows his letters, colors, and shapes

and has a good understanding of spoken language. Landon should

be able to attend school and should be able to learn and to

communicate.

47. Neither Petitioners , nor Intervenors, have established

that Landon has a permanent and substantial mental and physical

impairment. Thus, Landon is not entitled to benefi ts under the

Plan.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of

Law, it is ORDERED that the petition filed by Jessica and Cody

Ibasfalean, on behalf of and as parents of Landon Ibasfalean, is

dismissed with prejudice.

DONE AND ORDE RED this 1 5 th day of December , 2014 , in

Tallahassee, Leon County, Florida.

S

BARBARA J. STAROS

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 1 5 th day of December , 2014 .

ENDNOTE S

1/ Although Dr. Willis is frequently called upon in NICA

proceedings for his expert opinion regarding maternal - fetal

medicine, his credentials are not in evidence.

2/ In the Pre - Hearing Stipulation, the parties stipulated to the

entry of all the exhibits identified in the Notice of Filing

Stipulated Record. Petitioners, ho wever, take the position that

the deposition testimony of Dr. Duchowny should be stricken

relative to any opinion expressed regarding whether an

obstetrical event resulted in loss of oxygen to the baby's brain

during labor, delivery, or immediate post - deli very period "as he

expressed no qualifications to render such an opinion."

Petitioners' request that portions of Dr. Duchow n y's testimony be

stricken is denied.

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Rel ated Neurological

Injury Compensation Association

2360 Christopher Place, Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1569)

Armando Lauritano, Esquire

Morgan and Morgan, P.A.

One Tampa City Center

201 North Fran klin Street, 7th Floor

Tampa, Florida 33602

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1576)

Hughes Hamilton Rice, Esquire

Bush, Graziano, Rice and Platter, P.A.

Post Office Box 3423

Tampa, Florida 33601

(eServed)

(Certified Mail No. 7014 2120 00 03 1053 1583)

Jeffery L. Blostein, Esquire

The Law Office of Jay Cohen, P.A.

100 Southeast Third Avenue , Suite 1500

Fort Lauderdale, Florida 33394

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1590)

J. Stephen Menton, Esquire

Rutledge Ecenia, P.A.

119 South Monroe Street, Suite 202

Post Office Box 551 (32302)

Tallahassee, Florida 32301

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1606)

M. Mark Bajalia, Esquire

Bajalia, Sanders and Bajalia, P.A.

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7014 2120 0003 1053 1613)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7014 2120 0003 1053 1 620)

Elizabeth Dudek, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7014 2120 0003 1053 1637)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be

by appeal to the District Court of Appeal pursuant to section

766.311(1), Florida Statutes. Review proceedings are governed by

the Florida Rules of Appellate Procedure. Such proceedings are

commenced by fili ng the original notice of administrative appeal

with the a gency c lerk of the Division of Administrative Hearings

within 30 days of rendition of the order to be reviewed, and a

copy, accompanied by filing fees prescribed by law, with the

clerk of the approp riate District Court of Appeal. See

§ 766.311(1), Fla. Stat., and Fla. Birth - Related Neurological

Injury Comp. Ass'n v. Carreras , 598 So. 2d 299 (Fla. 1st DCA

1992).