15-003930N Shannon Frybarger And Steven Frybarger, Individually And On Behalf Of Jacob Frybarger, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association, A/K/A Nica Status: Closed DOAH Final Order on Thursday, April 30, 2020.

Summary: Minor child sustained a "birth-related neurological injury"; obstetrical services delivered by participating physicians in hospital; notice requirements satisfied.

A PPEARANCES

F or Petitioner s : Carlos R. Diez - Ar guelles, Esquire

Diez - Arguelles & Tejedor, P.A.

505 North Mills Avenue

Orlando, Florida 32803

For Respondent: Brooke M Gaffney, Esquire

Smith Bigman Brock, P.A.

444 Seabreeze Boulevard, Suite 900

Daytona Beach, Florida 32118

For Intervenors Adventist Health:

Travase L. Erickson, Esquire

Saalfield Shad, P.A.

245 Riverside Avenue, Suite 400

Jacksonville, Florida 32202 - 4926

For Intervenors Florida Physicians:

John W. Bocchino, Esquire

Beytin, McLaughlin, McLaughlin, O’Hara, Bocchino & Bolin, P.A.

10 63 Maitland Center Commons Boulevard

Maitland, Florida 32751

S TATEMENT O F T HE I SSUES

For the purpose of determining compensability, whether the injury

claimed is a birth - related neurological injury and whether obstetrical services

were delivered by a par ticipating physician in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in the hospital; and

whether notice was accorded the patient, as contemplated by section 766.316,

Florida Statutes, or whether the failure to give notice was excused because

the patient had an emergency medical condition, as defined in

section 395.002(8), Florida Statutes, or the giving of notice was not practicable.

P RELIMINARY S TATEMENT

On Ju ly 10, 2015, Petitioner s filed a Petition Under Prote st Pursuant to

Florida Statute Section 766.301 et seq. (Petition) with the DOAH for a

determination of compensability under the Florida Birth - Related

Neurological In jury Compensation Plan (Plan). The matter was initially

assigned to Administrative Law Judg e (ALJ) Barbara J. Staros.

The Petition named Franklyn Christensen, M.D. , and Athena

Theodosatos, D.O., as the physicians who provided obstetric services at the birth of Jacob Frybarger (Jacob) on January 18, 2008, at Florida Hospital South/Orlando in Orl ando, Florida.

On July 16, 2015, DOAH mailed a copy of the Petition to Respondent,

Dr. Theodosatos, Dr. Christensen, and Florida Hospital Orlando by certified

mail. Respondent was served with the Petition on or before July 17, 2015.

On September 14, 2 015, Intervenors, Adventist Health Systems/Sunbelt,

Inc., d/b/a Florida Hospital Orlando (Adventist Health) and Athena

Theodosatos, M.D. filed a petition for leave to intervene, which was granted

by Order dated September 24, 2015. On September 21, 2015, Fl orida

Physicians Medical Group, Inc., d/b/a Center for Neonatal Care, Lewis Otero,

M.D., Eduardo Lugo, M.D., D. Jim Rawlings, M.D., Winslade Bowen, M.D.,

Hilton Bernstein, M.D., Ruth Bartleson, ARNP, and Dinorah Rodriguez - Warren, ARNP (Florida Physicians), filed a petition for leave to intervene,

which was granted by Order dated October 2, 2015.

Following several extensions of time to respond to the Petition, on

October 28, 2015, Respondent filed its Response to the Petition. Respondent suggested that, ba sed on its review of the claim, Jacob had not suffered a

“birth - related neurological injury” a s defined in section 766.302(2) and,

therefore, the claim was not compensable under the Plan. Thereafter, on

November 17, 2015, ALJ Staros issued a Notice of Hear ing wherein the final

hearing was scheduled for May 24 and 25, 2016.

On March 23, 2016, Petitioners filed a Motion for Summary Final Order.

Said motion was denied on March 31, 2016. On April 21, 2016, the final

hearing was rescheduled to February 8 and 9, 2017; and again rescheduled

on December 5, 2016, to June 7 and 8, 2017.

On February 14, 2017, Petitioners renewed their Motion for Summary

Final Order , which, on February 23, 2017, was denied, without prejudice. On

April 14, 2017, the parties filed an Agreed Motion to Reset the Final Hearing,

which was granted on April 17, 2017. Ultimately, the final hearing was

rescheduled to February 8 and 9, 2018.

On September 5, 2017, the matter was reassigned to the undersigned for

all further proceedings. Follo wing a telephonic case management conference

conducted on February 2, 2018, based on the stipulation of the parties that

additional time was necessary to complete discovery, the final hearing

scheduled for February 8 and 9, 2018, was cancelled.

The parti es thereafter continued to engage in extensive discovery.

Intervenors Adventist Health filed a Motion for Partial Summary Final

Order and Petitioners filed an Incorporated Motion for Summary Final Order

on April 27 and May 22, 2018, respectively. Both moti ons were denied on

June 6, 2018. The final hearing was rescheduled for July 23 through 25,

2019, and then, on July 9, 20 19 , rescheduled for January 7 and 8, 2020.

The final hearing proceeded, as scheduled, on January 7 and 8, 2020. The

final hearing Trans cript was filed on February 4, 2020. The identity of the

witnesses and exhibits and rulings regarding each, as well as pre - hearing

motions, are as set forth in the Transcript. 1

At the conclusion of the final hearing, the parties stipulated to submitting

proposed final orders on or before March 5, 2020, and that the undersigned’s

Final Order would issue on or before April 6, 2020. The parties filed proposed

final orders which have been considered in this Final Order.

Unless otherwise indicated, all Florid a Birth - Related Neurological Injury

Compensation Association ( NICA ) statutory references are to the versions in

effect at the time of Jacob’s birth .

F INDINGS O F F ACT

1. Petitioners are the parents and natural guardians of Jacob.

2. Jacob was born a live infant on January 18, 2008, at Adventist Health,

a hospital located in Orlando, Florida. At the time of delivery, M rs. Frybarger

was 33 weeks and four days pregnant.

3. Franklyn Christensen, M.D., provided obstetrical services in the course

of Jacob’s del ivery, and during resuscitation in the immediate post - delivery

1 Intervenors objected to the testimony of Ronald Davis, M .D., and subsequently filed a post -

hearing Motion to Strike Petitioners’ Testimony of Witness Ronald Davis, M.D. The motion is

granted in part and denied in part. The undersigned will not consider the testimony of

Dr. Davis regarding his treatment of Jaco b from February 16, 2017 , through November 25,

2019, as Intervenors would suffer prejudice as they were unaware of said treatment u ntil

after Intervenor’s case - in - chief had concluded. The undersigned will consider, however,

Dr. Davis’s observations and op inions as to Jacob’s mental impairment, and the undersigned

concludes that Intervenors suffer no prejudice as a result. Finally, the undersigned will

consider Dr. Davis’s treatment record from November 25, 2019, and Respondent’s Exhibit 6

is admitted into evidence. The undersigned concludes Intervenors will not suffer prejudice as

a result.

period. Dr. Christensen was a participating physician in the Plan on the date

of delivery.

4. Athena Theodosatos, M.D., assisted in the delivery. Dr. Theodosatos

was a resident physician at t he time of delivery, and is deemed a

participating physician in the Plan at the time she rendered obstetrical

services.

5. Jacob was delivered via C aesarean - s ection delivery. The delivery took

approximately 51 minutes to complete. At some point during the procedure,

the placenta was cut , which resulted in bleeding. Accordingly, there was

blood loss to the placenta and to Mrs. Frybarger. As a result, there was also

blood loss to Jacob during the process of delivery and in the immediate post -

delivery period. The blood loss, in turn, resulted in oxygen deprivation to

Jacob during the delivery and resuscitation in the immediate post - delivery

period.

6. Jacob was a single gestation weighing over 2,500 grams at birth.

7. Jacob suffered an injury to his brain c aused by mechanical injury

leading to oxygen deprivation that occurred in the course of delivery and

resuscitation in the immediate post - delivery period in the hospital.

8. There is no known genetic or congenital abnormality that resulted in

Jacob’s brain injury.

9. The injury to Jacob rendered him permanently and substantially

physically impaired.

10. There is no dispute that the injury to Jacob rendered him permanently

mentally impaired. At issue is whether the injury to Jacob’s brain rendered

him sub stantially mentally impaired. Petitioners and Respondent contend

that the brain injury impairment does not rise to the level of substantial.

Intervenors conten d the brain injury did render him substantially mentally

impaired. 2

Intervenors’ Experts

11. I ntervenors offered the testimony of Anthony Mancuso, M.D.

Dr. Mancuso is board - certified in diagnostic radiology, with a subspecialty in

neuroradiology. Dr. Mancuso practices at University of Florida Health, and is

the Chairman of the Radiology Department at the University of Florida

College of Medicine.

1 2 . Dr. Mancuso reviewed MRI imaging of Jacob’s brain from February

2009 and June 2012, as well as Jacob’s medical records. He opined that Jacob did suffer a hypoxic ischemic injury to his brain based on the imaging

findings and the circumstances surrounding the delivery and the

resuscitation of Jacob following a difficult delivery. Dr. Mancuso testified that

the MRI imaging demonstrated a pattern that was entirely consistent with a

hypoxic ischemic injury and that the imaging showed a substantial amount of

permanent injury to the brain that would reasonably result in substantial

mental and physical neurologic deficits.

13 . In terms of the front al lobe s , the parietal, the occipital lobes, the

corpus callosu m , and to a lesser degree the temporal lobes of Jacob’s brain ,

based upon the images of Jacob from approx imately one year after birth and

when he was approximately four years old, Dr. Mancuso opin ed that the

imaging evidence is predictive of and supports s ubstantial mental and

2 Pursuant to Florida Administrative Code Rule 28 - 106.205(1), persons other than the

original parties to a pending proceeding whose substantial interests will be affecte d by the

proceeding and who desire to become parties may move the presiding officer for leave to

intervene. The undersigned acknowledges that an intervenor’s rights are subordinate to the

rights of the parties and an intervenor’s status exists “only so lon g as the litigation continues

between the parties” and is “lost altogether if the parties decided to settle the case or

voluntarily dismiss it.” Louis Del Favero Orchids, Inc. v. Fla. Dep’t of Health , 2020 Fla. App.

LEXIS 1531 at *5 (Fla. 1st DCA 2020) quo ting Environmental Confederation of S.W. Fla, Inc.

v. IMC Phosphates, Inc. , 857 So. 2d 207 (Fla. 1st DCA 2003). Here, Petitioners filed their

Petition “under protest,” asserting they were not “claimants” and not seeking NICA

compensation. Notwithstanding, as Respondent disputes the compensability of the injury,

the undersigned m ust, in its present posture, determine the claim. §§ 766.304, 766.309,

766.301(1) and 766.31, Fla. Stat.

physical neurological deficits . Dr. Mancuso further opined that , based on the

imaging, the corpus ca llosum, the white matter that connects the lobes, was

diminished, leading to a highly disconnected brain.

1 4 . Dr. Mancuso opined that the brain injury, as demonstrated on

imaging, would be predictive of impaired cognitive functioning as measured

by intelligence tests, i mpair ed expressive and receptive language skills , the

necessity of substantial accommodations in school , below average cognitive or

academic skills , impaired perceptual and processing abilities , and the

necessity of special assistance to learn and develop intellectually to reach his

full potential . He further opined that the diminished corpus c a llosum would

be predictive o f Jacob’s inability to transfer his cognitive skills into adequ ate

learning in a normal manner and that h is ultimate vocational options would

be limited by these neurologic deficits.

1 5 . Dr. Mancuso, who had never seen Jacob nor treated him, credibly

ackn owledged that his opinions would require confirmation by physical

examination and neuropsychiatric testing. The undersigned finds

Dr. Mancuso’s opinions, as set forth above, credible and persuasive.

1 6 . Intervenors also offered the testimony of Russel l A ddeo, Ph.D.

Dr. Addeo received his Ph.D. in neuropsychology from the University of Florida and is a board certified clinical neuropsychologist. He is the Director of Behavioral Medicine at Brooks Rehabilitation. As a neuropsychologist,

Dr. Addeo makes de terminations, on a daily basis, with respect to a patient’s

degree of mental impairment.

17 . On March 21, 2019, when Jacob was 11 years, two months old, a

Compulsory Neuropsychological Examination of Jacob was conducted at Brooks Rehabilitation. A Forens ic Neuropsychological Evaluation Report was

generated after the neuropsychological evaluation, assessment, and record

review. Dr. Addeo’s opinions and report are based on the results of the

standardized testing conducted, his analysis of depositions in thi s matter,

review of Jacob’s educational records, medical records, and past

neuropsychological exams. The criteria he considered in rendering his opinion

included an analysis of cognitive function ; an analysis of intelligence tests ;

analysis of language ski lls ; whether special accommodations were necessary ;

Jacob’s perceptual and processing abilities ; whether J acob can learn and

develop intellectually without substantial accommodations ; whether he can

translate his cognitive abilities into adequate learning ; an analysis of J acob’ s

social and vocational developments ; and the degree to which he is impaired.

18 . Dr. Addeo testified and explained the neuropsychological exam and

results in detail. His neuropsychological exam was conducted over a period of

approx imately seven hours. The results of the examination are fairly

summarized in the 30 page report, which was admitted in to evidence and

addressed at length during the hearing.

19 . Dr. Addeo’s ultimate opinion is that Jacob is substantially mentally

impaired. In reaching this opinion, inter alia, Dr. Addeo relied upon

Steadman’s Medical Dictionary for informing himself as to what the terms

“substantial” and “mental im pairment” refer to. He testified that the general

definition of the term “substantial” means “ significantly – considerable in

q uantity and significantly great.”

20 . Dr. Addeo testified that “mental impairment” t o him is “really a

disorder characterized by the display of an intellectual defect as determined by things like diminished cognitive, interpe rsonal, social and vocational

effectiveness and by psychological exam and assessment.”

2 1 . With respect to the testing, Dr. Addeo a ssessed Jacob’s full scale IQ to

be a 52. This score, which falls in the severely impaired category, places

Jacob at the .01 percentile, meaning 99.9 percent of the population’s scores

are above his. In the subcomponent of verbal IQ, Jacob scored an 81. Jacob’s

verbal IQ is a relative strength for him, and, if standing alone, would place

him in the mildly impaired category. Jac ob’s performance IQ resulted in a

score of 45, placing him in the severely impaired category.

2 2 . Dr. Addeo acknowledged that Jacob has significant visual and fine

motor skill deficits and the difficulties that the same present:

It’s true, but some of it is difficult to establish, you

know, to separate (visual and motor deficits from

cognitive) but I tried to give tests and tried to look

at how he’s doing cognitively. I don’t want to say

that J acob has got substantial mental impairment

when in fact it jus t may be that he has some visual

difficulty o r that he has motor difficulty.

2 3 . Dr. Addeo was aware that Jacob is legally blind and, at times, utilizes

a magnifier in the classroom. Jacob has nystagmus, an involuntary eye

movement that makes it difficult to focus vision, which was observed during

the testing. Indeed , Jacob’s eyes were observed darting up and to the right

several times per minute. Dr. Addeo credibly opined that this condition “most likely” would affect his ability to focus and visualize ma terials. During the

testing, Jacob did not utilize a magnifier, and, while not precluded from doing

so, did not have the assistance of a paraprofessional (as he has at school).

2 4 . During the testing, Dr. Addeo attempted to remove from consideration

diffi culties that might be introduced due to Jacob’s visual and motor deficits.

As an example, Dr. Addeo described two tests where vision is not a factor and

yet Jacob still performed poorly. On one t est , Jacob was asked if there were

three ducks on a lake and one flies away, to state how many remained.

Jacob’s answer was four. Even when told that was incorrect, Jacob would

repeat that answer. He also had difficulty with determining the value of money.

2 5 . The results of the examination revealed the following sc ores: for the

w orking memory index , f luid reasoning index , and v isuospatial index he

score d in the .1 percentile or lower . I n the v erbal comprehension index , a

relative area of strength for Jacob, he scored in the 10th p ercentile . In math

and reading, he s cored at the .05 percentile (95 percent of the population

bett er than him in academic skills).

2 6 . With respect to a ttention and concentration , Jacob scored poorly. His

score on the a bility to repeat digits forward and backward and sequence them

was in th e 1st percentile , and in the a uditory attention response test , he

scored in the 2nd percentile. Dr. Addeo testified that ne ither of these tests is

affect ed by visual/motor deficiencies. In the Auditory Response Set

Correction , Jacob scored in the .1 perce ntile (99.9 percent of the pop ulation

scored higher).

2 7 . Jacob performed relatively we ll on verbal executive skills: similarities

(25 percent ), letter fluency (9 percent ), category switching (16 percent ), total

set loss errors (37 percent ), and total rep etition errors (5 percent ). In matrix

reasoning, however, where Jacob was presented with a square composed of

four red triangles , and one was missing, he could not correctly solve the

problem. Notwithstanding his visual deficiencies, Dr. Addeo testified th at

Jacob would could see and make out the shapes and colors.

2 8 . With respect to language and verbal reasoning, Jacob scored in the .5

percentile in expressive vocabulary and at the 1st percentile in categorical

fluency (the a bility to tell category name s of things: girl’s names, animals,

and etc .). Jacob did relatively better in similarities, scoring in the 25th

percentile.

2 9 . Jacob had a difficult time with comprehension of instructions, which

included no visual or motor skills for the most part, obt aining a score of .1

percentile. Not surprising, based on his visual and fine motor deficits, Jacob

performed poorly on spatial and visual reasoning, scoring in the .1 percentile

or below.

30 . Dr. Addeo noted that Jacob’s verbal memory for stories and for list s of

items was in the low average to average range . He further noted that Jacob

performed better on verbal memory on this occasion than on the prior testing

performed with Dr. Kanter (discussed below).

3 1 . Jacob’s educational history is discussed, in detail, in a separate section

of this Order below. Dr. Addeo in formulating his ultimate opinion, in part,

considered Jacob’s education records. Accordingly, his opinions on the matter

are set forth here. As Jacob has been determined as a student with a

disability pursuant to the Individuals with Disabilities Education Act (IDEA), he has an individualized educational program (IEP). Dr. Addeo reviewed

J acob ’s IEPs over the years. In doing so, Dr. Addeo observed that Jacob is

enrolled in an “access points” curriculum for English/language arts,

mathematics, social studies , and science. Accordingly, the grading is different

from courses following the general curriculum and Jacob d oes not have to

take the same standardized tests as other children.

3 2 . Jacob’s IEPs document multiple accommodations and services that he

receives on a daily basis while in school. Dr. Addeo credibly opined that Jacob

will always require these services and accommodations to learn and develop

intellectually. While some of Jacob’s lan guage skills are better than others ,

he has significant difficulty with expressiv e and receptive language skills and

impaired perceptual and processing abilities. Dr. Addeo opined that d espite substantial accommodations in school, he has not achieved avera ge cognitive

or precognitive skills. While Jacob’s memory i n some areas is a relative

strength, he has difficulty with translating his cognitive abilities into normal

learning.

3 3 . With respect to his future, Dr. Addeo opined that while Jacob can

speak, c ommunicate, and conduct a conversation, his social and vocational

development has been drastically impaired and that his probability of

employment, outside of a “benevolent employer,” is not very high . Dr. Addeo

agreed that Jacob might be able to be employ ed in the future answering

phones.

34 . The undersigned finds that Dr. Addeo’s opinions, as set forth above,

and the findings set forth in the report , to be credible and persuasive.

35 . Intervenors also presented the testimony of Stewart Ater, M.D.

Dr. A t er is a board certified pediatrician and neurologist with special

qualifications in child neurology. In 2016, Intervenors retained Dr. Ater to

conduct a neurological examination of Jacob. The examination was conducted

on June 17, 2016, in Orlando, Florida, when Jacob was eight years, four

months old. While Dr. Ater spent approximately 10 hours reviewing Jacob’s

medical and educational records prior to the examination, the examination

spanned approximately one hour.

36 . Dr. Ater’s ultimate opinion in this m atter is that Jacob “does have

substantial neurological problems, cognitive as well as cerebral palsy motor

problems” and that Jacob satisfies the criteria for a birth - related neurological

injury. Dr. Ater credibly testified, based on his training and expe rience,

review of the available records and physical examination , that Jacob

sustained a hypoxicischemic brain injury during the course of delivery and

the post - delivery period.

37 . Dr. Ater testified that, upon examination, he found Jacob’s intellectual

and executive functions were o bviously and severely impaired. In support of

this position, Dr. Ater explained that Jacob, at the age of eight , misspelled

his own last name, could not accurately identify his birth month or date , and

could not read the word “father.”

3 8 . Dr. Ater conceded that, during the examination, Jacob was able to

answer questions regarding his grade, his teacher, his favorite subjects and

the reasons therefore. Jacob also demonstrated some ability to follow some directions correctly a nd spontaneously commented upon when his counsel left

and returned to the room during examination. Jacob also informed Dr. Ater that he (in the past) would advise his parents when he felt a seizure coming on and recalled the name of his seizure medication. Due to his visual deficits,

it appears that Jacob had some degree of difficulty in reading the print

provided during the examination.

3 9 . According to Dr. Ater, J acob has impaired cognitive functioning as

measured by intelligence tests and , following h is evaluation, recommended

that Jacob undergo a neuropsychological evaluation. Dr. Ater opined that

more recent psychoeducational or neuro - psychoeducational testing is more

reliable than similar testing performed at a young age as “ [a] reas of the

brain . . . need to develop more complex functions as children grow and get

older, that children typically grow into their deficits” and “ [t] hat is as the

other people in their classes learn more and more complex things, these kids

f all farther and farther behind. ” Accordingly, Dr. Ater opines that IQ scores

generally tend to be more accurate at an older age than a younger age.

40 . Based upon document review and examination, Dr. Ater opined that

Jacob clearly has problems with both expressive and receptive languag e, but

the same are not as damaged as other cognitive areas. Based upon his review

of Jacob’ s educational records, he opined that, d espite substantial

accommodations in school, he has not achieved average cognitive or pre -

academic skills. Jacob, in his opi nion, has impaired perceptual and

processing abilities and requires s ubstantial educational help in an

exceptional student education (ESE) program and is not able to translate his cognitive capabilities into adequate learning in a normal manner.

4 1 . With respect to his future, Dr. Ater opines that Jacob’s social and

vocational development has been drastically impaired. Dr. Ater testified that

Jacob is n ot likely to be employed in meaningful competitive work and will

not be able to live independently.

4 2 . The undersigned finds that Dr. Ater’s opinions with respect to whether

Jacob sustained a hypoxic - ischemic brain injury during the course of delivery

and the post - delivery period to be credible and persuasive. The undersigned

further credits and finds persu asive Dr. Ater’s opinions regarding the

reliability of more recent psychoeducational or neuro - psychoeducational

testing and that that IQ scores generally tend to be more accurate at an older

age than a younger age.

4 3 . The undersigned finds, however, that Dr. Ater’s testimony regarding

the interpretation of MRI studies and the exercise of matching damage d lobes

of the brain to distinct cognitive functions less persuasive than that of

Dr. Man cuso, d ue, in part, to the limi ted duration of the examination. T he

undersigned finds Dr. Ater’s opinions concerning Jacob’s potential

educational and vocational opportunities less persuasive.

Respondent’s Experts

4 4 . Respondent retained Laufey Sigurdardottir, M.D., to review the

available medical records, conduct a neu rological examination, and opine as

to whether Jacob met the criteria for a birth - related neurological injury and

should be eligible for compensation under the Plan. Dr. Sigurdardottir is a

board certified child neurologist and epileptologist.

4 5 . Dr. Sig urdardottir conducted an examination of Jacob on O ctober 7,

2015, when Jacob was seven years, eight months old. A report was drafted on

the date of the examination after a review of the medical records, full

physical, and thorough neurological examination. She drafted an addendum

to her report, dated September 8, 2017, following the review of additional

MRI imaging studies and medical records. The results of her examination are

fairly summarized in her report, and were admitted into evidence and

addressed a t the hearing.

4 6 . Dr. Siguardardottir’s ultimate opinion in this matter is that Jacob

does not have a substantial mental impairment, but rather, a mild mental impairment. As noted in her evaluative report, Jacob’s “[o]verall

developmental assessment does suggest some delays in language and

comprehension as well as expressive language, but overall skills that are higher than his motor abilities.” She concluded that, “[t]he patient is found to have a permanent substantial physical impairment, but to have mi ld mental

impairment with areas of strength in verbal realms.”

4 7 . Dr. Sigurdardottir testified regarding the motor impairments that

Jacob has that would make s tandardized testing difficult: quadriplegic

cerebral palsy ; diff iculties with fine motor skills ; multiple vision

abnormalities; abnormal eye movement where he has a difficult time keeping

his gaze f ocused on what he is looking at; difficulty sweeping his eyes when

attempts to read; and he is considered legally blind, even with corrective

lenses. Ind eed, Dr. Sigurdardottir testified that, “visual disturbance, hearing

impairment and motor disability is one [sic] of the hardest things to overcome

in testing true intelligence.”

48 . Dr. Sigurdardottir reviewed several prior assessments in formulating

her opinions and testified regarding the same. Her review of the Battelle

Inventory administered to Jacob at age eight months sho w ed his lowest areas

were in motor development (79) , but all other scores ( adaptive skills, personal

and social development, commu nication and cognitive function ) were within

no rmal limits (84).

4 9 . She also reviewed prior neuropsychological testing from the Volusia

County School District. With respect to a neuropsychological assessment

performed in 2011, she noted Jacob obtained t he following scores:

d evelopmental quotient (78); personal/social ( 83 ); communication ( 94 ); and

motor skills ( 68 ). Dr. Sigurdardottir explained that 78 is “ borderline , ” 83 is o n

“the cusp of completely normal , ” and 94 is “ completely normal .” With respect

to a psychoeducation assessment completed in 2017, she noted Jacob was

only given the verbal part of the W echsler Intelligence Scale Children, Firth

Edition (WISC - V) , wherein he obtained a score of 76. She explained that an

85 is within normal limits; 71 - 85 is borderline; and 70 and below would be

considered impaired.

50. Dr. Sigurdardottir also discussed the 2013 evaluation conducted by

Dr. Kanter. She noted that, pursuant to his evaluation, Jacob’s full scale IQ was a 63; however, the verbal component of the assessment was an 83.

Dr. Sigurdardottir opines that, when there is a large discrepancy in areas of

strength and other areas that are very difficult to test (due to motor and

visual deficiencies), the lower scores do not reflect Jacob’s true abilit ies.

Similarly, she opined that the testing performed by Dr. Addeo is unreliable

because the performance IQ portion, particularly those components that

rated Jacob’s visual and motor dexterity, would underestimate his true

abilities.

5 1 . Dr. Sigurdardott ir opine d that intellectual disability is not merely

comprised of IQ, but rather, one must look at the individual’s adaptive skills.

Accordingly, if one merely looked to Jacob’s verbal and adaptive skills upon

testing, he would fall into the “borderline ca tegory,” and not that of an

intellectual disability.

52 . In es sence, Dr. Sigurdardottir opined that to the extent any cognitive

testing requires vision or fine motor skill components, the same would be

unreliable as it would underestimate Jacob’s true abi lities. As a corollary, she

opined that purely verbal testing and assessment is the most accurate

method to determine his true mental abilities.

5 3 . The undersigned finds that Dr. Sigurdardottir possesses significant

educ ation, training, and expertise and is well - qualified and credentialed to

render the above - noted opinions. The undersigned, however, finds her

opinions with respect to limiting cognitive testing to purely verbal as less

persuasive and overly restrictive.

5 4 . Respondent also retained Ronald Willis, M.D., a board certified

obstetrician and gynecologist specializing in maternal - fetal medicine, to

review Jacob’s medical records and opine as to whether Jacob sustained an

injury to his brain in the course of labor, delivery, or in the immediate p ost -

delivery period due to oxygen deprivation or mechanical injury. Dr. Willis

conducted his review and authored a report on September 15, 2015, and a subsequent report on January 14, 2016, both of which contain his findings

and opinions. Dr. Willis was al so deposed on July 25, 2017, and his deposition

was admitted into evidence without objection. Dr. Willis testified that, in his

opinion, Jacob sustained an injury to his brain due to oxygen deprivation

during the immediate post - delivery period. He offered no opinions on the

degree or permanency of the brain injury. Dr. Willis’s opinions are credited.

5 5 . Respondent also re tained Tushar Chandra, M.D., a board - certified

radiologist, to review and opine on the previously obtained MRI images (2009

and 2012) of Jacob’s brain. Of relevance to the primary issue in this

proceeding, Dr. Chandra could not provide an opinion or predict whether or

not Jacob has a permanent and substantial mental or physical impairment

based on the imaging alone. As Dr. Chandra explaine d in his deposition of

February 8, 2018:

Because – because what I’m looking at is anatomy,

and there’s no clear correlation of anatomy with

function. So to comment on that, you need a good

clinical neurological examination to look at his

cranial nerves, mo tor tests, sensory tests. For all

that, you need a clinical examination.

** *

What my specialty is, is to say whether or not this

is a normal scan. If not normal, then based on my

experience, what has been the kind of injury and

when, and then I usually try to say to make my

recommendations. . . . But in no capacity does my

expertise allow me to comment on how this kid will do clinically, because there’s no way I can know

that.

5 6 . The undersigned finds that the above - noted opinions of Dr. Chandra

are c redible and persuasive.

Petitioners’ Experts

5 7 . On March 14, 2011, prior to the filing of the instant Petition,

Petitioners’ counsel referred Jacob to Robert F. Cullen, Jr., M.D., a

neurologist at Miami Children’s Hospital, for a neurological evaluation. Jacob

was three years, two months old at the time of the evaluation. A report was

generated following the evaluation, which was admitted without objection. In

the summary section of his report, Dr. Cullen noted , inter alia , that: 1) Jacob

had some speech articulation difficulties and would need ongoing speech

therapy; 2) was at risk for seizures over and above the general population;

3) had cognitive delays and was behind in terms of naming pictures and

colors; 4) would require special educational help in school; and 5) that his

employability will certainly be limited.

5 8 . On June 12, 2013, prior to the filing of the instant Petition,

Petitioner’s counsel referred Jacob for a neuropsychological evaluation by

Geoffrey Kanter, Ph.D. Jacob was five years, fo ur months old at the time of

evaluation. A report was generated following the evaluation, which was

admitted without objection. Dr. Kanter did not offer testimony in this matter.

5 9 . Dr. Kanter documented that, at the time of the evaluation, Jacob was

una ble to dress himself, walk without assistance, tie his shoelaces, correctly

say the alphabet, read, button his clothing, and name coins. Dr. Kanter also

documented that, upon examination, Jacob’s visual acuity problems “were

quite evident.” Specifically, h e documented as follows:

Jacob’s eyes would frequently roll upwards

involuntarily. On all visual tasks, he required

assistance and prompting to focus on the visual

stimuli in front of him. He would focus on a

particular area directed by the examiner, his e yes

would roll upwards, and then he would need redirection again to focus back on the particular

location on the stimulus he was previously looking

at. With this type of assistance, he was able to focus on and view particular areas of visual stimuli in ord er to comprehend the task and make a

response. However, his performance was likely

clearly impacted.

60 . Dr. Kanter further observed that Jacob’s fine motor skills “were also

obviously impacted,” and that his fine motor dysfunction “clearly impacted

the test results on tasks with high fine motor demand.” Finally, he noted that

“[o]ther fine - motor tasks were beyond his capabilities and not administered.”

61 . Jacob’s general intellectual functioning was documented by Dr. Kanter

as follows:

On the WPPSI - III [Wechsler Pre - School and

Primary Scale of Intelligence - III], Jacob obtained a

Full Scale I.Q. score of 63 which falls within the

Extremely Low ra n ge (1 st percentile) at a Moderate

level of impairment. Sub - indices were variable with

a significant strength in terms of verbal reasoning

ability (Verbal I.Q. =83, 13th percentile, Low

Average, Mildly impaired) versus a significant

weakness in visual - spatial and visual - motor ability

(performance IQ=53, .1 Percentile, Extremely Low, Severely impaired).

6 2 . The “I mpressions and Conclusions” section of Dr. Kanter’s report is set

forth , in full , below :

The pattern and severity of cognitiv e test scores

across this evaluation are consistent with the

electroencephalographic and neuroradiological test findings of grossly impaired neurological

functioning on a di ffuse and localized b asis. The

EEG pointed more toward a right hemisphere locus

of the seizure disorder which is consi stent with

relatively more spared ( b ut still impaired) left

hemispheric, verbal/language areas. The neurological dysfunction would certainly be

expected to impact his cognitive capacities in the

areas of processing speed, memory, and speec h/ language functioning to some degree. Visual

s k ills are a ffected not only due to visual acuity

issues (i.e., hav ing to hold small images close to his

face) but also likely visual processing problems. To some degree, it is difficult to parcel out which factor

may be primary although from a functional

standpoint, it does not matter. Impaired visual

acuity would certai nly be expected to cause visual -

spatial and visualmotor processing speed problems.

The parent qu e stionnaire results from the

Vineland - II and BASC - 2 are consistent with the

cognitive test findings in terms of how his

cognitive, visual, and motor problems si gnificantly

impact his ability to engage in functional communication and functional activities.

Overall, consistent with M RI and EEG results, it is

evident that multiple areas of Jacob's brain were

damaged, with bot h hemispheres a ffe cted, as well

as cort ical and subcortical components wi th global

and specific cognitive and behavioral consequences.

It is also important to note that at Jacob's age,

cer tain neuro - cognitive functions have not yet

developed (such as higher level executive

functioning related t o frontal lobe development)

and as such , more specific impairments are li kely

to emerge as he reaches adolescence and beyond

when cognitive, educational, and life tasks will present increased complexity and demand for more

independent problem - solving.

T he severity of t he cognitive and functional

impairments clearly impacts his ability to function

normally within an educational setting, family setting, and social setting. The impact of the

pattern and severity of cognitive deficits will result

in t h e need f or special education services

throughout Jacob's educational career and will

greatly impact his capacity for vocational employment.

63 . Dr. Kanter’s prognosis and recommendations for Jacob, as documented

in his report, are set out in pertinent part, as fo llows:

Jacob will continue to need significant assistance

throughout his educational career, into adulthood,

and throughout his life. While h e may develop some

adaptive compensat ory strategies, t h e severity of

his areas of deficit in language, memory, and

visual - motor areas in particular will not likely

change i n a significant functional manner. He will

require special educati on assistance throughout

school. The likelihood of Jacob successfully

completing a 4 - year regular college or even a 2 - year

college i s extremely minimal .

The probability for Jacob to obtain and maintain

competitive employment on a fu ll - time basis is

minimal. Given the pattern and severity of deficits in the visual, cognitive, and academic realms, his

employment choices will be extremel y limited. It is

li kely that he will qua lify for and require Social

Security Disability. He would likely require a

limited type of job placement which does not

require a high degree of concentration and

attention, memory, verbal expressive abilities, fine -

motor s kills , physical mobility, visual acumen, or

writing capacity, and only under circu mstances

with very significant assistance and

accommodations. It is unknown what type of

employment setting would be able to meet such

requirements. He may be able to obtain a volunteer position on a part time basis as a productive

activity but we still need a great deal of direct

supervision.

After reaching his majority, Jacob will continue to

need significant assistance with regard to most

aspects of his life w hich i ncludes:

¤ financial management and decision - making

¤ paying rent and utility bills

¤ decisions concerning cos t s, benefits, advantages,

and disadvantages of residential location

¤ decisions concerning social and intimate relations h ips

¤ emotional coping w ith his disability

Non - medical professionals who will need to become

involved in his life include an accountant, a

lawyer, and financial manager, and case manager. As he gets older, there may be a potential increase

in emotional and be havioral problems wh ich may

require more assistance in understanding and

dealing with his emotions and behavior. Psychotherapy on a wee kly basis s hould be

initiated immediately to p rovide assistance to

Jacob and Mr. and. Mrs. F r ybarger, and his school

to help him develop adap tive coping strategies to

deal with understanding his impairments and disab ility. Psychotherapy on an as needed basis

will be requir e d from now through adulthood.

Issues with physical disability (quadriplegia, visual dysfunction) as well as cognitive dysf unction will

certainly eliminate Jacob's ability to drive. He will

need an aide to help transport him as he gets

older. He will need assistance for other functional

activiti es such as shopping. Given the

combination of cognitive as well physical disability ,

he will likely require assistance for co oking and

cleaning once he reaches his majority. Overall,

taking into account all the areas of impairment, it

is likely that he will require approximately 24 hour

seven day p e r week prof e ssional aide assistance if

his parents are unable to care for him and provide

for all of his needs. So long as he is with his

parents, he will still need assis t ance for the time be

is outside of the house whet her within a very

structured school setting, sheltered vocational

setting, or within any other environment.

Finally, as noted, Jacob will continue to require

professional speech therapy, physical therapy,

occupational therapy services, and counseling beyond that which the school provides.

64 . Petitioner offered the testimony o f one of Jacob’s treating physicians,

Ronald Davis, M.D. Dr. Davis is board certified in general pediatrics, adult

and pediatric neurology, and has a special qualification in epilepsy. Jacob

was presented to Dr. Davis in 2012 for a second opinion. Followin g the initial

evaluation, Dr. Davis confirmed the diagnosis of spastic quadriplegic cerebral

palsy and partial epilepsy. Dr. Davis most recently treated Jacob on

November 25, 2019.

6 5 . Dr. Davis testified that this treatment of Jacob focused on “seizure -

related issues, developmental aspects, and in particular for that is the spastic cerebral palsy, so treatment approaches to try to improve range of motion,

functionality of motor skills . . . . ” Based upon his care and treatment,

Dr. Davis opined that Jaco b does not have a substantial mental impairment.

He reported that Jacob was doing well cognitively, noting that he was making passing grades in his ESE classes and was conversational in speech.

66 . Dr. Davis explained that Jacob is not a “total care” pati ent -- that is a

patient who requires total care and who is not interactive. Dr. Davis

explained that a total care patient would have a substantial mental

impairment. Dr. Davis testified that he anticipates Jacob to progress in the

future, both mentally and physically, if he continues treatment.

6 7 . The undersigned finds that Dr. Davis possesses significant education,

training, and expertise and is well - qualified and credentialed to render the

above - noted testimony as one of Jacob’s treating physicians. The undersigned

finds his ultimate opinion with respect to whether Jacob has a substantial

mental i mpairment to be less persuasive; however, as his methodology for

arriving at the opinion is overly restrictive.

Family testimony:

6 8 . Jacob testified on his beh alf and was able to provide limited, but

primarily appropriate, responses to questions concerning his family

(members, pets, parents’ employment), his favorite educational topics and

teachers, his current grades, his ability to use technology, and hobbies.

6 9 . Jacob, who was almost 12 years old at t he time of the hearing,

attended the entire hearing at counsel’s table. Jacob was observed to have a

very pleasant and friendly demeanor. Throughout the hearing, Jacob was observed to be calm, compliant, cordial and respectful of the proceeding. The

undersigned was able to hear and comprehend Jacob’s speech. He was

observed providing limited, but appropriate, greetings and responses;

communicating on occasion with his legal counsel; and expressing his basic needs and wants.

70 . Petitioner’s mother, Shannon Frybarger, testified that Jacob is not

impulsive, but rather, mature, independent , and responsible. In comparing

Jacob to her elder son, she opined that Jacob is the more mature of the two.

Mrs. Frybarger testi fied that he is able to stay home alone, for a period of

time, and independently recalls when he is required to take medication. She

opined that Jacob has consistently and successfully progressed in school and

is confident the he will ultimately matriculat e to college, and then to a career.

Educational history

71 . As noted above, Jacob has been identified, evaluated, and determined

to be a student with a disability under the IDEA. The evidentiary record

indicates that he was evaluated by Child Find service s through the Volusia

County School District on January 10, 2011, when he was just under three

years old. There, he was served through the Early Steps program for

occupational therapy (OT), physical therapy (PT), and communication

therapies. At that time, his primary exceptionality was noted, in his IEP, to

be orthopedically impaired, with secondary exceptionalities including OT, PT,

and other health impaired (OHI).

7 2 . When Jacob entered kindergarten, he participated in the general

education curriculum wi th accommodations and intensive support in

language arts, math, communication, social skills, and independent function.

He was placed in a “separate class” educational setting, wherein he was with non - exceptional students less than 40 percent of the school day. He received

specialized instruction, daily, in language arts, math, social studies, social

skills, communication, and independent functioning. He also received

supplemental aids and services such as text, picture and/or object support for

communicati on and learning; digital text; and adapted computer access.

73 . The following year, he began receiving, in addition to prior services,

special instruction for 30 minutes per week in a visually impaired setting. At that time, it was determined that he would be able to participate in state and

district - wide assessment programs with a number of test accommodations.

7 4 . On November 30, 2016 , through January 11, 2017, Jacob was referred

to Cynthia M. Fraser, Ph.D., a school psychologist with the School District of

Volusia County. The documented referral was to obtain measures of his intellectual ability, academic achievement, and adaptive behavior. At the time, Jacob was in third grade.

7 5 . Dr. Fraser documented that Jacob was “ receiving ESE services under

the exceptionalities of Orthopedically Impaired, Occupational Therapy,

Physical Therapy, Visually Impaired, and Other Health Impaired. Jacob is

diagnosed with Cerebral Palsy, Seizure Disorder, Optic Atrophy in both eyes,

Myopia, Nystagmus, disorder of eye move ment, and Astigmatism. ” She also

documented that he “ uses either a wheelchair or walker and requires adult

assistance to navigate around campus. He also receives ESE services from

the vision teacher. ” Dr. Fraser’s summary and recommendation are set out in

full, as follows:

Jacob is an 8 year, 11 - month old boy in the third

grade that was referred for reevaluation by the

ESE Reevaluation Committee to provide an

updated measure of updated measures of his intellectual ability, academic achievement, and

adaptive behavior.

Due to Jacob's significant physical limitations and

vision deficits only the Verbal Comprehension

subtests of the WISC - V were administered. His

score of 76 fell within the low range. Jacob received

the following scores on the WJ - IV: Reading (<4>

Math (51), and Written Language (<40).>

achievement test was administered with

accommodations and modifications for his physical

and visual deficits including enlarging items and assistance from the vision teacher.

Results from the ABAS - III (Teache r GAC = 72,

Parent GAC = 70) fell below average. A strength was noted on the Social Domain while the

Conceptual and Practical Domains were areas of

weakness.

7 6 . An IEP meeting was conducted for Jacob on March 9, 2017, when

Jacob was in the third grade. T he IEP team was comprised of Petitioner’s

mother and the following school based members: an E SE teacher; a vision

teacher; a primary teacher ; a school psychologist ; a speech therapist ; a social

worker ; a behavior specialist ; the local educational authority representative ;

and an evaluation interpreter. At that time, the IEP team, in discharging its

duty, was required to determine Jacob’s participation in the statewide

standardized assessment program. In making that determination, the IEP

team, including Pet itioner’s mother, proceeded through the following

analysis, as documented on the IEP:

In determining the appropriate assessment for a

student, the IEP team should consider the

student’s present level of educational performance

in reference to the Florida S tandards and the Next

Generation Sunshine State Standards. The IEP

team should also be knowledgeable of guidelines

and the use of appropriate testing accommodations.

To facilitate informed and equitable decision

making, the IEP team should answer each of t he

following questions when determining the appropriate course of instruction and assessment.

1) Does the student have a significant cognitive

disability ?

2) Even with appropriate and allowable instructional accommodations, assistive technology, or acce ssible instructional materials, does the

student require modifications, as defined in Rule

6A - 6.03411(1)(z), F.A.C., to the grade - level general

state content standards pursuant to Rule 6A -

1.09041, F.A.C.?

3) Does the student require direct instruction in

academic areas of English Language Arts (ELA), mathematics, social studies, and science based on Access Points in order to acquire, generalize, and transfer skills across settings?

If the IEP team answers “no” to any of these three questions, the student should be instructed in general education courses and participate in the general statewide standardized assessment with

accommodations, as appropriate.

If the IEP teams answers “yes” to all three questions, the student should be enrolled in access

course s and participate in the Florida Standards

Alternate Assessment - Performance Task.

7 7 . The IEP team conducted the above - cited analysis, concluded that

Jacob has a significant cognitive disability, and answered the remaining

questions in the affirmative. U ltimately, the IEP team concluded that Jacob

will participate in the Florida Standards Alternate Assessment - Performance

Task. Jacob’s most recent IEP in evidence, dated April 23, 2019, documents

that Jacob continues to participate in access courses and par ticipate s in the

Florida Standards Alternate Assessment - Performance Task.

7 8 . The undersigned, based upon review of the record evidence, is

unaware of any evidence that Petitioners declined to provide parental

consent for Jacob’s participation in either t he access points curriculum or the

Florida Standards Alternate Assessment - Performance Task.

Notice

7 9 . On August 7, 2007, Mrs. Frybarger, signed a document entitled

“Notice to Obstetric Patient (See Section 766.316, Florida Statutes).” This

document provi des as follows:

I have been furnished information by Fetal

Diagnostic Center of Orlando, Inc. prepared by the

Florida Birth - Related Neurological Injury

Compensation Association (NICA), and have been

advised that Ahmed Al - Malt , M.D. and Franklyn

Christensen , M.D. are participating physicians in

that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor,

delivery or resuscitation. For specifics on the

program, I understand I can contact the Florida Birth - Related Neurological Injury Compensation

Association, P.O. Box 14567, Tallahassee, Florida, 32317 - 4567, (800)398 - 2129. I further acknowledge

that I have received a copy of the brochure prepared by NICA.

80 . On December 16, 2007, Petitioner, Shannon Frybarger, signed a

document entitled “Notice to Obstetric Patient Pursuant to Florida

Statute 766.315.” Said document provided as follows:

I have been furnished with information by Florida

Hospital that was prepared by the Florida Birth

Related Neurological Injury Compensation

Association (NICA). Under the Association’s NICA

program, certain limited compensation is available

in the event that certain neurological injury may

occur to my infant during labor, delivery or

resuscitation. I have also b een informed that

Florida Hospital, its related or affiliated

organizations, and their employed physicians are

participants in the NICA program.

I acknowledge and understand that my personal

physician, or an on - call physician who I have been

assigned to, may or may not participate in the

NICA program. I understand that I may seek clarification from my physician as to his/her

participation in the NICA program. I understand it

is my responsibility to discuss this with my

physician.

For specifics on the pro gram, I understand that I

can contact the Florida Birth Related Neurological Compensation Association (NICA), 1435 East Piedmont Drive, Suite 101, Tallahassee, Florida 32312, (904) 488 - 8191, which is also listed in the

NICA brochure. I further acknowledge that I have received a copy of the NICA brochure called “Peace of Mind for an Unexpected Problem” from Florida Hospital prepared by NICA.

8 1 . The undersigned finds that Intervenor, Adventist Health , provided

notice to Mrs. Frybarger, of its participation in the Plan. The undersigned

finds that Dr. Christensen provided notice to Mrs. Frybarger of his

participation in the Plan. Petitioner presented no contrary evidence at the

final hearing, and does not address the notice issue in Petitioner’s Proposed Final Order.

C ONCLUSIONS O F L AW

8 2 . DOAH has jurisdiction over the parties to and the subjec t matter of

these proceedings. §§ 766.301 - 766.316, Fla. Stat.

8 3 . The Plan was established by the Legislature “for the purpose of

providing compensation, irrespective o f fault, for birth - related neurological

injury claims” relating to births occurring on or after January 1, 1989.

§ 766.303(1), Fla. Stat.

8 4 . Section 766.301(2) provides that it is “the intent of the Legislature to

provide compensation, on a no - fault basi s, for a limited class of catastrophic

injuries that result in unusually high costs for custodial care and

rehabilitation.”

8 5 . The injured infant, her or his personal representative, parents,

dependents, and next of kin may seek compensation under the Pl an by

filing a cla im for compensation with DOAH. §§ 766.302(3), 766.303( 2),

and 766.305(1), Fla. Stat. NICA, 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 su bmit relevant written information relating to the issue

of whether the injury is a birth - related neurological injury.” § 766.305(4), Fla.

Stat.

8 6 . If Respondent determines that the injury alleged is a claim that is a

compensable birth - related neurologic al injury, it may award compensation to

the claimant, provided that the award is approved by the ALJ to whom the claim has been assigned. § 766.305(7), Fla. Stat. If, on the other hand, Respondent disputes the claims, as here, the dispute must be resolved by the

assigned ALJ in accordance with the provisions of chapter 120, Florida

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

8 7 . Section 766.313 provides that any claim for compensation under

sections 766.301 through 766.316 that is filed “more th an 5 years after the

birth of an infant alleged to have a birth - related neurological injury shall be

barred.” Jacob was born January 18, 2008. The Petition was filed July 10,

2015, well past the five - year limitation in section 766.313. While the Petition

w as untimely filed mo re than five years after Jacob’s birth, whether the claim

presented is compensable must still be determined. University of Miami v.

Exposito ex rel. Gonzalez , 87 So. 3d 803 (Fla. 3d DCA 2012).

8 8 . In its present posture, the undersigne d i s required to make the

following threshold determination s based upon the available evidence:

(a) Whether the injury claimed is a birt h - related

neurological injury. If the claimant has

demonstrated, to the satisfaction of the

administrative law judge, th at 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 t he 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

postdelivery period in a hospit al; 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.

* * *

(d) Whether, if raised by the claimant or oth er

party, the factual determinations regarding the

notice requirements in s. 766.316 are satisfied. The

administ rative law judge has the exclusive

jurisdiction to make these factual determinations.

§ 766.309(1), Fla. Stat. An award may be sustained only if the ALJ concludes

that the “infant has sustained a birth - related neurological injury. . . .”

§ 766.31(1), Fl a. Stat.

8 9 . The term “birth - related neurological injury” is defined 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 o r, 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.

9 0 . The phrase “substantial mental impairment” is neither defined by

statue nor present rule. In Florida Birth - Related Neurological Injury

Compensation Ass ociation v . Florida Div ision of Admin istration Hearings ,

686 So. 2d 1348 (Fla. 1997) [hereinafter Bernie ], the court was asked to

resolved the certified question as to whether, under the Plan, an infant must

suffer both substantial mental and physical impairment, or can the definition

be construed to require only substantial impairment, mental and/or physical.

In resolving the question, the Bernie court explained that “[w]here, as here,

the legislature has not defined the words used in a phrase, the language

should u sually be given its plain and ordinary meaning.” Bernie , at 1354, citing Southeaster n Fisheries Ass’n , Inc. v. Dep’ t Nat . Res . , 453 So. 2d 1351

(Fla. 1984). “Nevertheless, consideration must be accorded not only to the literal and usual meaning of the wor ds, but also to their meaning and effect

on the objectives and purposes of the statue’s enactment.” Id .

9 1 . The Bernie court concluded that the NICA statute is written in the

conjunctive and requires a permanent and substantial impairment to both

the phys ical and mental elements. Id . at 1356. The Bernie court did not

establish a definition or test for the determination of “substantial mental

impairment,” but found that the underlying decision by the ALJ must be

supported by competent and substantial eviden ce.

92 . In Adventist He alth System/Sunbelt, Inc. v. Florida Birth - Related

Neurological Injury , 865 So. 2d 561 (5th DCA 2004) [hereinafter Shoaf ], the

Fifth District Court of Appeals likewise rejected setting forth a formulaic

approach to the resolution of the term “substantial mental impairment.”

Addressing the argument that Be rnie had created a definition, the Shoaf

court countered:

It is apparent, however, that the Be rnie court did

not define or redefine “substantial mental

impairment.” They simply said that the decision of

the ALJ was supported by competent substantial

evidence. All this language in Bernie suggests is

that, under NICA, the identification of a substantial mental impairment may include not

only significant cognitive deficiencies but can

i nclude, in a proper case, additional circumstances

such as significant barriers to learning and social development.

Shoaf , at 567.

9 3 . The Shoaf court again reiterated that, as the legislature did not define

the terms used in the test for NICA qualificat ion, these terms are to be given

their ordinary meanings. Id . at 568. Indeed, the Shoaf court further directed

that:

The legislature left the application of the terms they used to the administrative law judges designated by statute to hear these claims and to

apply the expertise they develop in carrying out this task to determine from the evidence adduced

in each case whether these for NICA is met.

* * *

In cases such as the one before us, the ALJ, as fact finder, brings his own background, training,

expe rience and expertise to the task of weighing

and evaluating very sophisticated evidence. The child’s advocate likewise brings his own

communication and strategic skills to the fact -

finding process; and finally, the evidence in each

case will vary in its po wer to persuade. This will be

especially true in cases where the opinions of

experts are concerned.

Id ., at 568 - 569.

9 4 . Finally, the Shoaf court, in concluding that the underlying decision by

the ALJ was supported by competent substantial evidence, adv ised that the

term “substantial mental impairment” is broad enough to encompass more

than just damage to cognitive capacity and more than merely the inability to

translate cognitive capabilities into adequate learning in a normal manner or

impairment of so cial and vocational development. Id. at 569.

9 5 . Against this backdrop, the undersigned concludes that sufficient

evidence was presented, or otherwise stipulated or admitted by the parties, to establish that: Petitioners, Shannon Frybarger and Steven Fryba rger, are the

parents and natural guardians of Jacob, a minor; that Jacob was born a live

infant on January 18, 2008, at Adventist Health System/Sunbelt, Inc., d/b/a

Florida Hospital Orlando, a hospital located in Orlando, Florida; and that

Jacob was a sin gle gestation, weighing over 2,500 grams at birth.

96 . It is further concluded that sufficient evidence was presented, or

otherwise stipulated or admitted by the parties, to establish that obstetrical services were delivered by participating physicians, D r. Christensen and

Dr. Theodosatos, in the course of labor, delivery, or resuscitation in the

immediate post - delivery period in a hospital .

9 7 . The undersigned further concludes that the evidence establishes that

Jacob suffered an injury to his brain cau sed by mechanical injury leading to

oxygen deprivation in the course of labor, delivery, or resuscitation in the

immediate post - delivery period i n the hospital. Jacob’s injury wa s not caused

by genetic or congenit al abnormality or due to infection. The und ersigned

concludes that the evidence further establishes that Jacob’s injury rendered

him permanently and substantially physically impaired, and permanently

mentally impaired.

98 . Each of the parties to this proceeding presented one or more experts to

sup port their respective position as to whether Jacob is substantially

mentally impaired. All of the experts presented were well - qualified,

credentialed, and possessed extensive and significant training and experience

in their respective discipline or area of expertise. Having thoroughly reviewed

and weighed the considered expert opinions and evidence, the undersigned

concludes that the better evidence supports the conclusion that Jacob’s injury

at issue, based on the Findings of Fact above, rendered him subst antially

mentally impaired. The undersigned concludes that Jacob’s brain injury is

substantial, as evidenced by his mo re recent cognitive assessments; his

significant educational barriers (discussed in greater detail below) ; and his

social, vocational, and independent functioning prognoses.

9 9 . As discussed in the Findings of Fact above, Jacob has been previously

evaluated and determined as a student with a disability under the IDEA, 20

U.S.C. § 1400, et seq . , for which he is entitled to receive ESE servi ces. In

enacting the IDEA, Congress sought to “ensure that all children with

disabilities have available to them a free appropriate public education (FAPE) that emphasized special education and related services designed to

meet their unique needs and prepa re them for further education,

employment, and independent living.” 20 U.S.C. § 1400(d)(1)(A); Phillip C. v. Jefferson Cty. Bd. of Educ. , 701 F.3d 691, 694 (11th. Cir. 2012). The statute

was intended to address the inadequate educational services offered t o

children with disabilities and to combat the exclusion of such children from the public school system. 20 U.S.C. § 1400(c)(2)(A) - (B). To accomplish these

objectives, the federal government provides funding to participating state and local educational age ncies, which is contingent on the agency’s compliance

with the IDEA’s procedural and substantive requirements. Doe v. Ala . State

Dep’t of Educ. , 915 F.2d 651, 654 (11th Cir. 1990).

100 . Parents and children with disabilities are accorded substantial

proc edural safeguards to ensure that the purposes of the IDEA are fully

realized. See Bd. of Educ. of Hendrick Hudson Cent. Sch. Dist. v. Rowley , 458

U.S. 176, 205 - 06 (1982). Among other protections, parents are entitled to

examine their child’s records and pa rticipate in meetings concerning their

child’s education; receive written notice prior to any proposed change in the

educational placement of their child; and file an administrative due process

complaint “with respect to any matter relating to the identifi cation,

evaluation, or educational placement of [their] child, or the provision of a free appropriate public education [FAPE] to such child.” 20 U.S.C. § 1415(b)(1),

(b)(3), (b)(6).

10 1 . Local school systems must satisfy the IDEA’s substantive

requirement s by providing all eligible students with FAPE, which is defined

as:

Special education services that -- (A) have been

provided at public expense, under public

supervision and direction, and without charge; (B)

meet the standards of the State educational age ncy; (C) include an appropriate preschool, elementary

school, or secondary school education in the State

involved; and (D) are provided in conformity 21 with the individualized education program required under [20 U.S.C. § 1414(d)].

20 U.S.C. § 1401(9).

102 . The components of FAPE are recorded in an IEP, which, among other

things, identifies the child’s “present levels of academic achievement and

functional performance”; establishes measurable annual goals; addresses the

services and accommodations to be provided to the child, and whether the

child will attend mainstream classes; and specifies the measurement tools

and periodic reports that will be used to evaluate the child’s progress. 20

U.S.C. § 1414(d)(1)(A)(i); 34 C.F.R. § 300.320. “Not less frequent ly than

annually,” the IEP team must review and, as appropriate, revise the IEP. 20

U.S.C. § 1414(d)(4)(A)(i).

10 3 . Section 1003.5715 , Florida Statutes, delineates two specific actions

that require the Department of Education to adopt separate consent form s

with respect to an IEP. One such action is if a school district determines that

there is a need to change an exceptional student’s IEP as it relates to the

administration of an alternate assessment pursuant to section 1008.22 ,

Florida Statutes, and to pr ovide instruction in the state standards access

points curriculum. If so, the school must hold an IEP team meeting that

includes the parent to discuss the reason for the change. The school is

required to provide written notice of the meeting to the parent at least 10

days before the meeting, indicating the purpose, time, and location of the

meeting and who, by title or position, will attend the meeting. § 1003.5715(1)

and (4) , Fla. Stat .

104 . Section 1003.5717(5) further provides that the school district ma y not

implement the change (alternate assessment and access points curriculum)

without parental consent unless the school district documents reasonable efforts to obtain the parent’s consent and the child’s parent has failed to

respond or the school distri ct obtains approval through a due process hearing.

10 5 . Here, the IEP team convened, as set forth in the Findings of Fact

above, and made a change in Jacob’s IEP with respect to the alternate

assessment and access points curriculum. There is no evidence i n the record

to suggest that his parents failed to provide consent for the same or that the

Volusia County School District was required to initiate a due process hearing seeking approval of the change.

10 6 . The significance of this IEP change with respect to the present

proceeding (and specifically to whether Jacob is substantially mentally

impaired), is that it could not have occurred without the IEP team’s

consensus that, as an initial matter, Jacob is a student with a “significant cognitive disability.” This phrase, like “substantially mentally impaired,” is

not defined by statue or rule. Rather the interpretation is left to the IEP team

when discharging their duty.

10 7 . Florida Administrative Code Rule 6A - 1.0943, entitled “Statewide

Assessment for Stud ent with Disabilities” provides, in pertinent part, as

follows:

(3) All students with disabilities will participate in

the statewide standardized assessment program

based on state standards, pursuant to Rule 6A -

1.09401, F.A.C., without accommodations unles s

the individual educational plan (IEP) team, or the

team that develops the plan required under Section

504 of the Rehabilitation Act, determines and

documents that the student requires allowable

accommodations during instruction and for

participation in a statewide standardized

assessment.

* * *

(5) Participation in the Statewide, Standardized

Alternate Assessment. The decision that a student

with a significant cognitive disability will participate in the Statewide, Standardized Alternate Assessment as d efined in Section

1008.22(3)(c), F.S., is made by the IEP team and recorded on the IEP. The provisions with regard to parental consent for participation in the Statewide, Standardized Alternate Assessment in accordance

with subsection 6A - 6.0331(10), F.A.C. , must be

followed. The following criteria must be met:

(a ) Even with appropriate and allowable

instructional accommodations, assistive technology

or accessible instructional materials, the student

requires modifications, as defined in paragraph 6A -

6.0341 1(1)(z), F.A.C., to the grade - level general

state content standards pursuant to Rule 6A -

1.09401, F.A.C. ; and,

(b) The student requires direct instruction in academic areas of English language arts, math, social studies and science based on access points,

pursuant to Rule 6A - 1.09401, F.A.C., in order to

acquire, generalize, and transfer skills across

settings.

10 8 . Having determined that Jacob is a student with a significant

cognitive disability, Jacob was enrolled in the access points curriculum, with

par ental consent, and is to be administered the FSAA - Performance Task,

based on the access points curriculum.

10 9 . The access point curriculum provides “access to the general education

curriculum for students with significant cognitive disabilities.” Fla. Ad min.

Code R. 6A - 1.09401(1). The standards, benchmarks, and access points are

contained in publications incorporated by reference and made a part of rule

6A - 1.09401. An instructive history and explanation of access points is set

forth in the incorporated p ublication and provides, in pertinent part, as follows:

History of the Access Points

Beginning in 2006, access points became the means

through which students with a significant cognitive

disability have accessed the general education content found in the Next Generation Sunshine State Standards (NGSSS). Access points were developed for all standards with three complexity

levels that represented a continuum of

understanding (participatory, supported and independent). Courses containing these standards, also known as access courses, were developed to

support access for all students to the general education standards. These courses are setting neutral, which means a student working on access points can attend classes with non - disabled peers

in general educatio n courses. Students with a

significant cognitive disability work on a “parallel curriculum” that is aligned to the general education content but delivered at the individual level of complexity needed for the student to be successful. When the State Board o f Education adopted the

new Florida Standards in March 2014, it became necessary to develop new access points that are appropriate for Florida’s students. As is the case

with the NGSSS, these new access points for

students with a significant cognitive disa bility fully

align with the Florida Standards. Moving forward,

access courses for students with significant

cognitive disabilities will be revised to contain

these new access points. This way, all students can continue to access the general education stand ards

in a way that promotes high expectations and encourages inclusive learning environments for students with a significant cognitive disability.

New Access Points Aligned to the Florida

Standards

Making the content of the Florida Standards

personally relevant and accessible to students with

a significant cognitive disability begins by articulating the general education content through

access points. The new access points in

English/Language Arts identify the most salient grade - level, core academic cont ent for students

with a significant cognitive disability. It is

important to note that the access points are NOT

“extensions” to the standards, but rather they

illustrate the necessary core content, knowledge and skills students with a significant cognitiv e

disability need at each grade to promote success in

the next grade. Essential Understandings, or EUs,

are supports and scaffolds that unpack the access points to assist in the teaching and learning of the standards.

Fla. Admin. Code R. 6A - 1.09401(1)(l).

1 1 0. The undersigned, in construing the ordinary meaning of the word

“substantial , ” agrees with Dr. Addeo’s interpretation that the word means

“ significant ” or “c onsiderable in q uantity and significantly great.” In reaching

the conclusion that Jacob is s ubstantially mentally impaired, the

undersigned finds persuasive the IEP team’s determination, with parental

consent, that Jacob is significantly cognitively disabled. That determination

was not arrived at by paid expert witnesses in anticipation of litiga tion, but

rather, by professional public educators and professionals, together with

parental consent.

1 1 1 . These decision makers possess significant and frequent access to

Jacob’s cognitive and adaptive functioning, diagnostic information, and

academic pe rformance data. Moreover, these individuals have the ability to

observe Jacob’s independent functioning, social behavior, and communication skills and how the same impact him globally. The undersigned finds that

Jacob’s status as significantly cognitively disabled in the educational setting

is complimentary and supportive of the conclusion that he is substantially

mentally impaired for purposes of determining NICA compensability.

112 . The undersigned concludes that Intervenors have met their burden of

est ablishing that Jacob’s injury at issue rendered him substantially mentally

impaired. Having met the other criteria, the undersigned concludes that the

Intervenors met their burden of establishing that Jacob sustained a birth -

related neurological injury, as that term is defined in section 766.302(2).

11 3 . During the course of this litigation, the issue was raised as to

whether the notic e requirements set forth in s ection 766.316 were met . With

respect to the notice issue, a s the proponents of the proposition that

appropriate notice was given or that notice was not required, the burden on this issue of notice is upon the Intervenors. Tabb v. Fla. Birth - Related

Neurological Injury Comp. Ass'n. , 880 So. 2d 1253, 1257 (Fla. 1st DCA 2004).

Section 766.316, entitled “Notice to obstetrical patients of participation in the plan,” provides as follows:

Each hospital with a part icipating physician on its

staff and each participating physician, other than

residents, assistant residents, and interns deemed

to be participating physicians under

s. 766.314 (4)(c), under the Florida Birth - Related

Neurological Injury Compensation Plan sh all

provide notice to the obstetrical patients as to the

limited no - fault alternative for birth - related

neurological injuries. Such notice shall be provided

on forms furnished by the association and shall

include a clear and concise explanation of a

patien t’s rights and limitations under the plan. The

hospital or the participating physician may elect to

have the patient sign a form acknowledging receipt

of the notice form. Signature of the patient

acknowledging receipt of the notice form raises a

rebuttable presumption that the notice

requirements of this section have been met. Notice

need not be given to a patient when the patient has

an emergency medical condition as defined in

s. 395.002 (8)(b) or when notice is not practicable.

11 4 . Here, Intervenors pre sented unrefuted evidence that Florida

Hospital Orlando and Dr. Christensen satisfied the notice requirements of

section 766.316. Dr. Theodosatos, a resident physician at the time of Jacob’s

birth, was exempted from the notice requirements.

C ONCLUSION

B as ed on the foregoing Findings of Fact and Conclusions of Law, it is

O RDERED that:

1. Jacob sustained a “birth - related neurological injury,” as defined in

section 766.302(2).

2. Obstetrical services were delivered by participating physicians,

Dr. Christen sen and Dr. Theodosatos, in the course of labor, delivery, or

resuscitation in the immediate post - delivery period in a hospital, Florida

Hospital Orlando.

3. Intervenor Florida Hospital Orlando and Dr. Christensen satisfied the

notice requirements of sect ion 766.316.

4. Although Petitioners’ claim is otherwise compensable under the Plan, it

is untimely pursuant to section 766.313.

D ONE A ND O RDERED this 30 th day of April, 2020 , in Tallahassee, Leon

County, Florida.

T ODD P. R ESAVAGE

Administrative Law J udge

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 30 th da y of April, 2020 .

C OPIES F URNISHED :

(via certified mail)

Travase Lloyd Erickson, Esquire

Saalfield Shad, PA

Suite 400

245 Riverside Avenue Jacksonville, Florida 32202

(eServed)

(Certified No. 7019 2280 0001 7689 4736 )

Brooke M. Gaffney, Esquire

Smith, Stout, Bigman & Brock, P.A.

Suite 900

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7019 2280 0001 7689 4620 )

Kenney Shipley, Executive Director

Florida Birth - Related Neurological

Injury Compensation Association

2360 C hristopher Place , Suite 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 0001 7689 4613 )

Maria D. Tejedor, Esquire

Diez - Arguelles & Tejedor

505 North Mills Avenue

Orlando, Florida 32803

(eServed)

(Certified No. 7019 2280 0001 7689 4743 )

John W. Bocchino, Esquire

Beytin, McLaughlin, McLaughlin, O'Hara,

Bocchino & Bolin, P.A.

1063 Maitland Center Commons Boulevard

Maitland, Florida 32751

(eServed)

(Certified No. 7019 2280 0001 7689 4750 )

Elizabeth A. Myers, Esquire

Smith Bigman Brock, P .A.

444 Seabreeze Boulevard

Daytona Beach, Florida 32118

(eServed)

(Certified No. 7019 2280 00 0 1 7689 4637 )

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Cer tified No. 7019 2280 0001 7689 4644 )

Mary C. Mayhew, Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

(Certified No. 7019 2280 000 1 7689 4651 )

N OTICE O F R IGHT T O J UDICIAL R EVIEW

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 p roceedings are commenced by filing 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 l aw, with the clerk of the

appropriate 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).