17-002303N Ashley Grant, On Behalf Of And As Parent And Natural Guardian Of Brooklyn Grant, A Minor vs. Florida Birth-Related Neurological Injury Compensation Association Status: Closed DOAH Final Order on Thursday, February 21, 2019.

Summary: The child did not sustain a "birth-related neurological injury" as defined in section 766.302(2). Therefore, the child is not eligible for benefits under the NICA Plan.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

ASHLEY GRANT, on behalf of and

as parent and natural guardian

of BROOKLYN GRANT, a minor,

Petitioner,

vs. Case No. 17 - 2303N

FLORIDA BIRTH - RELATED

NEUROLOGICAL INJURY COMPENSATION

ASSOCIATION,

Respondent,

and

WUESTHOFF MEDICAL CENTER -

ROCKLEDGE; LAHNEEN MARIE

SLANTIS, R.N.; AND CHG

HEALTHCARE SERVICES, INC.,

Intervenors.

_______________________________/

SUMMARY FINAL ORDER OF DISMISSAL

This came before the undersigned on RespondentÓs Amended

Response to Petition for Benefits, filed January 17, 2019. In

its Amended Response, the Florida Birth - Related Neurological

Injury Compensation Association ( NICA ) states that, following

further review of additional documentation, incl uding school

records and testing data, it has now concluded that Brooklyn

Grant (Brooklyn) has not suffered a permanent and substantial

mental impairment, and is therefore not a candidate for NICA

compensation. Finally, the Amended Response represents tha t

counsel for NICA has communicated NICAÓs current position on the

issue of compensability to all parties and is authorized to

represent that no party intends to challenge the position that

the claim is not compensable.

In response to NICAÓs new position that the subject claim

is not compensable, on January 17, 2019, the undersigned issued

an Order to Show Case, stating, inter alia:

Within 10 days of the date of this Order,

any party that opposes the dismissal of

PetitionerÓs claim shall show cause in

wri ting as to why PetitionerÓs claim should

not be dismissed. The failure to timely

respond to this Order will result in the

dismissal of PetitionerÓs claim, with

prejudice .

As of the date of this Final Order, no party has filed a

response to the Orde r to Show Cause indicating it intends to

challenge NICAÓs determination of non - compensability.

FINDINGS OF FACT

1. Petitioner filed her Pe tition for Benefits on

November 7, 2016.

2. NICA reviewed the claim and initially responded by

letter on Septem ber 25, 2017, indicating that it was of the

opinion that Brooklyn Grant suffered a birth - related

neurological injury as defined in s ection 766.302(2), Florida

Statutes. In addition, NICA filed expert reports from

Dr. Willis and Dr. Sigurdardottir in suppo rt of its position

that the claim was compensable.

3. Following NICAÓs initial review of the claim,

additional information was provided to Dr. Sigurdardottir for

further evaluation and consideration. Upon review and

consideration of this additional information, Dr. Sigurdardottir

issued an amended report dated December 28, 2018, in which she

stated, ÐIn light of these results, I feel we cannot at this

time determine that Brooklyn has a permanent substantial mental

impairment and I feel she is therefo re not a candidate for NICA

compensation.Ñ

4. Based on Dr. SigurdardottirÓs opinion that Brooklyn

does not have a permanent and substantial mental impairment,

NICA is now of the opinion that her claim is not compensable

because the NICA Plan (the Pla n) requires the child seeking

compensation to have both a permanent and substantial physical

impairment and a permanent and substantial mental impairment in

order to qualify for compensation.

5. No party has contested NICAÓs determination that the

cl aim at issue is not compensable. Further, no party has

offered evidence, in affidavit form or otherwise, to rebut

NICAÓs determination in this regard.

CONCLUSIONS OF LAW

6. The Division of Administrative Hearings has

jurisdiction over the parties to an d the subject matter of these

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

7. The Plan was established by the Legislature "for the

purpose of providing compensation, irrespective of fault, for

birth - related neurological injury claims" relating to bi rths

occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.

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

parents, dependents, and next of kin may seek compensation under

the Plan by filing a claim for compensation with the Div ision of

Administrative Hearings . §§ 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 submit relevant

w ritten information relating to the issue of whether the injury

is a birth - related neurological injury." § 766.305(4), Fla.

Stat.

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

is a compensable birth - related neurological injury, it may awa rd

compensation to the claimant, provided that the award is

approved by the administrative law judge to whom the claim has

been assigned. § 766.305(7), Fla. Stat. If, on the other hand,

NICA disputes the claim, as it has in the instant case, the

dispute must be resolved by the assigned administrative law

judge in accordance with the provisions of chapter 120, Florida

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

10. In discharging this responsibility, the administrative

law judge must make the following determination based upon the

available evidence:

(a) Whether the injury claimed is a birth -

related neurological injury. If the

claimant has demonstrated, to the

satisfaction of the administrative law

judge, that the infant has sustained a brain

or spinal cord injury caused by oxygen

deprivation or mechanical injury and that

the infant was thereby rendered permanently

and substantially mentally and physically

impaired, a rebuttable presumption shall

arise that the injury is a birth - related

n eurolo gical 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 hospital; or by a certified

nurse m idwife 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 la w judge concludes that the "infant has

sustained a birth - related neurological injury and that

obstetrical services were delivered by a participating physician

at birth." § 766.31(1), Fla. Stat.

11. The term "birth - related neurological injury" 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.

12. The evidence, which is not refuted by any contrary

expert opinions, established that Brooklyn does not suffer from

a permanent and substantial mental impairment. Therefore,

Brooklyn is not eligible for be nefits under the Plan.

§§ 766.302(2) and 766.309(1), Fla. Stat.

CONCLUSION

Based upon the foregoing Findings of Fact and Conclusions

of Law, it is ORDERED that the Petition filed by Ashley Grant,

on behalf of and as parent and natural guardian of Brooklyn

Grant, a minor , is dismissed with prejudice.

DONE AND ORDERED this 21st day of February , 2019 , in

Tallahassee, Leon County, Florida.

S

W. DAVID WATKINS

Administrative Law Judge

Division of Administrative

Hearings

The DeSoto Building

1 230 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 21st day of February , 2019 .

COPIES FURNISHED:

(via certified mail)

Kenney Shipley, Executive Director

Florida Birth Related Neurological

Injury Compensation Association

Suite 1

2360 Christopher Place

Tallahassee, Florida 32308

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8774)

Sean C. Domnick, Esquire

Domnick Cu nningham & whalen

Barnhart & Shipley, P.A.

2401 PGA Boulevard

Palm Beach Gardens, Florida 33410

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8781)

Michael R. D`Lugo, Esquire

Wicker, Smith, O`Hara, McCoy, Ford, P.A.

Suite 1000

390 North Orange A venue

Orlando, Florida 32802

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8798)

M. Mark Bajalia, Esquire

Bajalia Law

Suite 301

11512 Lake Mead Avenue

Jacksonville, Florida 32256

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8804)

Brian Thomas Bellavia, Esquire

Quintairos, Prieto, Wood & Boyer, P.A.

Suite 900

255 South Orange Avenue

Orlando, Florida 32810

(eServed)

(Certified Mail No. 7016 0910 0001 7987 8811)

Amie Rice, Investigation Manager

Consumer Services Unit

Department of Health

4052 Bald Cypress Way, Bin C - 75

Tallahassee, Florida 32399 - 3275

(Certified Mail No. 7016 0910 0001 7987 8828)

Mary C. Mayhew , Secretary

Health Quality Assurance

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(e Served)

(Certified Mail No. 7016 0910 0001 7987 8835)

Hae Soo Lim, M.D.

Suite 200

3627 University Boulevard South

Jacksonville, Florida 32216

(Certified Mail No. 7016 0910 0001 7987 8842)

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 filing the or iginal n otice of a dministrative

a ppeal 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 appropriate Dis trict 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).