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.
DOAH Final Order on Thursday, February 21, 2019.
1STATE OF FLORIDA
4DIVISION OF ADMINISTRATIVE HEARINGS
8ASHLEY GRANT, on behalf of and
14as parent and natural guardian
19of BROOKLYN GRANT, a minor,
24Petitioner,
25vs. Case No. 17 - 2303N
31FLORIDA BIRTH - RELATED
35NEUROLOGICAL INJURY COMPENSATION
38ASSOCIATION,
39Respondent,
40and
41WUESTHOFF MEDICAL CENTER -
45ROCKLEDGE; LAHNEEN MARIE
48SLANTIS, R.N.; AND CHG
52HEALTHCARE SERVICES, INC.,
55Intervenors.
56_______________________________/
57SUMMARY FINAL ORDER OF DISMISSAL
62This came before the undersigned on RespondentÓs Amended
70Response to Petition for Benefits, filed January 17, 2019. In
80its Amended Response, the Florida Birth - Related Neurological
89Injury Compensation Association ( NICA ) states that, following
98further review of additional documentation, incl uding school
106records and testing data, it has now concluded that Brooklyn
116Grant (Brooklyn) has not suffered a permanent and substantial
125mental impairment, and is therefore not a candidate for NICA
135compensation. Finally, the Amended Response represents tha t
143counsel for NICA has communicated NICAÓs current position on the
153issue of compensability to all parties and is authorized to
163represent that no party intends to challenge the position that
173the claim is not compensable.
178In response to NICAÓs new position that the subject claim
188is not compensable, on January 17, 2019, the undersigned issued
198an Order to Show Case, stating, inter alia:
206Within 10 days of the date of this Order,
215any party that opposes the dismissal of
222PetitionerÓs claim shall show cause in
228wri ting as to why PetitionerÓs claim should
236not be dismissed. The failure to timely
243respond to this Order will result in the
251dismissal of PetitionerÓs claim, with
256prejudice .
258As of the date of this Final Order, no party has filed a
271response to the Orde r to Show Cause indicating it intends to
283challenge NICAÓs determination of non - compensability.
290FINDINGS OF FACT
2931. Petitioner filed her Pe tition for Benefits on
302November 7, 2016.
3052. NICA reviewed the claim and initially responded by
314letter on Septem ber 25, 2017, indicating that it was of the
326opinion that Brooklyn Grant suffered a birth - related
335neurological injury as defined in s ection 766.302(2), Florida
344Statutes. In addition, NICA filed expert reports from
352Dr. Willis and Dr. Sigurdardottir in suppo rt of its position
363that the claim was compensable.
3683. Following NICAÓs initial review of the claim,
376additional information was provided to Dr. Sigurdardottir for
384further evaluation and consideration. Upon review and
391consideration of this additional information, Dr. Sigurdardottir
398issued an amended report dated December 28, 2018, in which she
409stated, ÐIn light of these results, I feel we cannot at this
421time determine that Brooklyn has a permanent substantial mental
430impairment and I feel she is therefo re not a candidate for NICA
443compensation.Ñ
4444. Based on Dr. SigurdardottirÓs opinion that Brooklyn
452does not have a permanent and substantial mental impairment,
461NICA is now of the opinion that her claim is not compensable
473because the NICA Plan (the Pla n) requires the child seeking
484compensation to have both a permanent and substantial physical
493impairment and a permanent and substantial mental impairment in
502order to qualify for compensation.
5075. No party has contested NICAÓs determination that the
516cl aim at issue is not compensable. Further, no party has
527offered evidence, in affidavit form or otherwise, to rebut
536NICAÓs determination in this regard.
541CONCLUSIONS OF LAW
5446. The Division of Administrative Hearings has
551jurisdiction over the parties to an d the subject matter of these
563proceedings. §§ 766.301 - 766.316, Fla. Stat.
5707. The Plan was established by the Legislature "for the
580purpose of providing compensation, irrespective of fault, for
588birth - related neurological injury claims" relating to bi rths
598occurring on or after January 1, 1989. § 766.303(1), Fla. Stat.
6098. The injured infant, her or his personal representative,
618parents, dependents, and next of kin may seek compensation under
628the Plan by filing a claim for compensation with the Div ision of
641Administrative Hearings . §§ 766.302(3), 766.303(2), and
648766.305(1), Fla. Stat. NICA, which administers the Plan, has
"65745 days from the date of service of a complete claim . . . in
672which to file a response to the petition and to submit relevant
684w ritten information relating to the issue of whether the injury
695is a birth - related neurological injury." § 766.305(4), Fla.
705Stat.
7069. If NICA determines that the injury alleged in a claim
717is a compensable birth - related neurological injury, it may awa rd
729compensation to the claimant, provided that the award is
738approved by the administrative law judge to whom the claim has
749been assigned. § 766.305(7), Fla. Stat. If, on the other hand,
760NICA disputes the claim, as it has in the instant case, the
772dispute must be resolved by the assigned administrative law
781judge in accordance with the provisions of chapter 120, Florida
791Statutes. §§ 766.304, 766.309, and 766.31, Fla. Stat.
79910. In discharging this responsibility, the administrative
806law judge must make the following determination based upon the
816available evidence:
818(a) Whether the injury claimed is a birth -
827related neurological injury. If the
832claimant has demonstrated, to the
837satisfaction of the administrative law
842judge, that the infant has sustained a brain
850or spinal cord injury caused by oxygen
857deprivation or mechanical injury and that
863the infant was thereby rendered permanently
869and substantially mentally and physically
874impaired, a rebuttable presumption shall
879arise that the injury is a birth - related
888n eurolo gical injury as defined in
895s. 766.303(2).
897(b) Whether obstetrical services were
902delivered by a participating physician in
908the course of labor, delivery, or
914resuscitation in the immediate postdelivery
919period in a hospital; or by a certified
927nurse m idwife in a teaching hospital
934supervised by a participating physician in
940the course of labor, delivery, or
946resuscitation in the immediate postdelivery
951period in a hospital.
955§ 766.309(1), Fla. Stat. An award may be sustained only if the
967administrative la w judge concludes that the "infant has
976sustained a birth - related neurological injury and that
985obstetrical services were delivered by a participating physician
993at birth." § 766.31(1), Fla. Stat.
99911. The term "birth - related neurological injury" is
1008de fined in section 766.302(2) as follows:
"1015Birth - related neurological injury" means
1021injury to the brain or spinal cord of a live
1031infant weighing at least 2,500 grams for a
1040single gestation or, in the case of a
1048multiple gestation, a live infant weighing
1054at l east 2,000 grams at birth caused by
1064oxygen deprivation or mechanical injury
1069occurring in the course of labor, delivery,
1076or resuscitation in the immediate
1081postdelivery period in a hospital, which
1087renders the infant permanently and
1092substantially mentally and physically
1096impaired.
109712. The evidence, which is not refuted by any contrary
1107expert opinions, established that Brooklyn does not suffer from
1116a permanent and substantial mental impairment. Therefore,
1123Brooklyn is not eligible for be nefits under the Plan.
1133§§ 766.302(2) and 766.309(1), Fla. Stat.
1139CONCLUSION
1140Based upon the foregoing Findings of Fact and Conclusions
1149of Law, it is ORDERED that the Petition filed by Ashley Grant,
1161on behalf of and as parent and natural guardian of Brooklyn
1172Grant, a minor , is dismissed with prejudice.
1179DONE AND ORDERED this 21st day of February , 2019 , in
1189Tallahassee, Leon County, Florida.
1193S
1194W. DAVID WATKINS
1197Administrative Law Judge
1200Division of Administrative
1203Hearings
1204The DeSoto Building
12071 230 Apalachee Parkway
1211Tallahassee, Florida 32399 - 3060
1216(850) 488 - 9675
1220Fax Filing (850) 921 - 6847
1226www.doah.state.fl.us
1227Filed with the Clerk of the
1233Division of Administrative
1236Hearings
1237this 21st day of February , 2019 .
1244COPIES FURNISHED:
1246(via certified mail)
1249Kenney Shipley, Executive Director
1253Florida Birth Related Neurological
1257Injury Compensation Association
1260Suite 1
12622360 Christopher Place
1265Tallahassee, Florida 32308
1268(eServed)
1269(Certified Mail No. 7016 0910 0001 7987 8774)
1277Sean C. Domnick, Esquire
1281Domnick Cu nningham & whalen
1286Barnhart & Shipley, P.A.
12902401 PGA Boulevard
1293Palm Beach Gardens, Florida 33410
1298(eServed)
1299(Certified Mail No. 7016 0910 0001 7987 8781)
1307Michael R. D`Lugo, Esquire
1311Wicker, Smith, O`Hara, McCoy, Ford, P.A.
1317Suite 1000
1319390 North Orange A venue
1324Orlando, Florida 32802
1327(eServed)
1328(Certified Mail No. 7016 0910 0001 7987 8798)
1336M. Mark Bajalia, Esquire
1340Bajalia Law
1342Suite 301
134411512 Lake Mead Avenue
1348Jacksonville, Florida 32256
1351(eServed)
1352(Certified Mail No. 7016 0910 0001 7987 8804)
1360Brian Thomas Bellavia, Esquire
1364Quintairos, Prieto, Wood & Boyer, P.A.
1370Suite 900
1372255 South Orange Avenue
1376Orlando, Florida 32810
1379(eServed)
1380(Certified Mail No. 7016 0910 0001 7987 8811)
1388Amie Rice, Investigation Manager
1392Consumer Services Unit
1395Department of Health
13984052 Bald Cypress Way, Bin C - 75
1406Tallahassee, Florida 32399 - 3275
1411(Certified Mail No. 7016 0910 0001 7987 8828)
1419Mary C. Mayhew , Secretary
1423Health Quality Assurance
1426Agency for Health Care Administration
14312727 Mahan Drive, Mail Stop 1
1437Tallahassee, Florida 32308
1440(e Served)
1442(Certified Mail No. 7016 0910 0001 7987 8835)
1450Hae Soo Lim, M.D.
1454Suite 200
14563627 University Boulevard South
1460Jacksonville, Florida 32216
1463(Certified Mail No. 7016 0910 0001 7987 8842)
1471NOTICE OF RIGHT TO JUDICIAL REVIEW
1477Review of a final order of an administrative law judge shall be
1489by appeal to the District Court of Appeal pursuant to section
1500766.311(1), Florida Statutes. Review proceedings are governed
1507by the Florida Rules of Appellate Procedure. Such proceedings
1516are commenced by filing the or iginal n otice of a dministrative
1528a ppeal with the a gency c lerk of the Division of Administrative
1541Hearings within 30 days of rendition of the order to be
1552reviewed, and a copy, accompanied by filing fees prescribed by
1562law, with the clerk of the appropriate Dis trict Court of Appeal.
1574See § 766.311(1), Fla. Stat., and Fla. Birth - Related
1584Neurological Injury Comp. Ass'n v. Carreras , 598 So. 2d 299
1594(Fla. 1st DCA 1992).
- Date
- Proceedings
- PDF:
- Date: 04/03/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 03/04/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 03/01/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 02/27/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 02/27/2019
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 02/21/2019
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 02/21/2019
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 10/15/2018
- Proceedings: Order Rescheduling Hearing by Video Teleconference (hearing set for February 27, 2019; 9:30 a.m.; Daytona Beach and Tallahassee, FL).
- PDF:
- Date: 10/01/2018
- Proceedings: Order Granting Continuance (parties to advise status by October 11, 2018).
- PDF:
- Date: 09/24/2018
- Proceedings: Intervenors', Lahneen Marie Slantis, R.N. and CHG Healthcare Services, Inc., Notice of Joinder in Respondent, Florida Birth-Related Neurological Injury Compensation Association, Motion for Continuance filed.
- PDF:
- Date: 09/12/2018
- Proceedings: Notice of Cancellation of Deposition of Donald Willis, M.D. filed.
- PDF:
- Date: 09/12/2018
- Proceedings: Notice of Taking Deposition of Laufey YR Sigurdardottir, M.D. filed.
- PDF:
- Date: 08/31/2018
- Proceedings: Petitioner's Notice of Serving Answers to Respondent's First Set of Interrogatories filed.
- PDF:
- Date: 08/02/2018
- Proceedings: Amended Motion to Intervene by Lahneen Marie Slantis, RN, and CHG Healthcare Services, Inc. filed.
- PDF:
- Date: 08/02/2018
- Proceedings: Motion to Intervene by Lahneen Marie Slantis, RN, and CHG Healthcare Services, Inc. filed.
- PDF:
- Date: 04/23/2018
- Proceedings: Notice of Hearing (hearing set for November 6, 2018; 9:00 a.m.; Daytona Beach, FL).
- PDF:
- Date: 04/20/2018
- Proceedings: Joint Response to Order Granting Extension of Time and Requesting Status Report filed.
- PDF:
- Date: 02/16/2018
- Proceedings: Petitioner's Response to Respondent NICA's Offer of Benefits filed.
- PDF:
- Date: 09/25/2017
- Proceedings: Motion for Entry of Protective Order Regarding Confidential Documents Related to Petitioner's Medical Records filed.
- PDF:
- Date: 09/15/2017
- Proceedings: Motion for Extension of Time in which to Respond to Petition filed.
- PDF:
- Date: 07/27/2017
- Proceedings: Motion for Extension of Time in which to Respond to Petition filed.
- PDF:
- Date: 06/15/2017
- Proceedings: Order (Motion to accept K. Shipley as qualified representative granted).
- PDF:
- Date: 06/12/2017
- Proceedings: Motion For Extension of Time in Which to Respond to Petition filed.
- PDF:
- Date: 06/02/2017
- Proceedings: Motion to Act as Qualified Representative Before the Division of Administrative Hearings filed.
- PDF:
- Date: 04/27/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/26/2017
- Proceedings: Certified Return Receipt received this date from the U.S. Postal Service.
- PDF:
- Date: 04/20/2017
- Proceedings: Certified Mail Receipts stamped this date by the U.S. Postal Service.
- PDF:
- Date: 04/20/2017
- Proceedings: Letter to Kenney Shipley from Claudia Llado enclosing NICA claim for compensation.
- Date: 04/17/2017
- Proceedings: Letter to Terri Dikko from Sean Domnick enclosing NICA filing fee (Check No. 3809; $15.00 filed (not available for viewing)
Case Information
- Judge:
- W. DAVID WATKINS
- Date Filed:
- 04/17/2017
- Date Assignment:
- 04/20/2017
- Last Docket Entry:
- 04/03/2019
- Location:
- Daytona Beach, Florida
- District:
- Northern
- Agency:
- Florida Birth-Related Neurological Injury Compensation Associati
- Suffix:
- N
Counsels
-
Sean C Domnick, Esquire
Domnick Cunningham & Whalen
Suite 140
2401 PGA Boulevard
Palm Beach Gardens, FL 34410
(561) 625-6260 -
Kenney Shipley, Executive Director
Florida Birth Related Neurological
2360 Christopher Place, Suite 1
Tallahassee, FL 32308
(850) 488-8191 -
M. Mark Bajalia, Esquire
Suite 301
11512 Lake Mead Avenue
Jacksonville, FL 32256
(904) 352-1123 -
Michael R. D`Lugo, Esquire
Suite 1000
390 North Orange Avenue
Orlando, FL 32802
(407) 843-3939 -
Sean C Domnick, Esquire
2401 PGA Boulevard
Palm Beach Gardens, FL 33410
(561) 625-6260 -
Kenney Shipley, Executive Director
Suite 1
2360 Christopher Place
Tallahassee, FL 32308
(850) 488-8191 -
Brian Thomas Bellavia, Esquire
Suite 900
255 South Orange Avenue
Orlando, FL 32810
(407) 872-6011 -
Michael R. D'Lugo, Esquire
Address of Record