STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DONDEE MCCARGO as Parent and ) Natural Guardian of RIWCHIST ) MITCHELL, )

)

Petitioner, )

)

vs. ) CASE NO. 93-2990N

) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William J. Kendrick, held a formal hearing in the above-styled case on August 20, 1993, in Miami, Florida.

APPEARANCES

For Petitioner: Murray B. Epstein, Esquire

One Datran Center, Suite 1406 9100 South Dadeland Boulevard Miami, Florida 33156

For Respondent: W. Douglas Moody, Jr., Esquire

225 South Adams Street, Suite 250 Tallahassee, Florida 32302

STATEMENT OF THE ISSUES

Whether Riwchist Mitchell has suffered an injury for which she and her mother, Dondee McCargo, should be awarded compensation under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation.

PRELIMINARY STATEMENT

On or about December 30, 1992, Dondee McCargo, as parent and natural guardian of Riwchist Mitchell, filed a

claim with the Division of Workers' Compensation, Florida Department of Labor and Employment Security (hereinafter referred to as "DWC") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan.

DWC served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on or about December 30, 1992. NICA reviewed the claim, and on or about February 12, 1993, gave notice of its determination "that such claim [was] not a birth-related neurological injury within the meaning of Section 766.302(2), [Florida Statutes] (1991)" and that the Judge of Compensation Claims assigned the case "enter an order setting a hearing in this cause on the issue of compensability of this claim."

Effective May 15, 1993, by operation of Chapter 93-251, Laws of Florida, jurisdiction to hear and decide all pending and future claims for compensation under the Florida Birth- Related Neurological Injury Compensation Plan was transferred to the Division of Administrative Hearings (hereinafter referred to as "DOAH"), and on June 2, 1993, DWC transferred the file in the above-styled case to DOAH.

On July 26, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on August 20, 1993, to determine "whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital."

At hearing, petitioner called no witnesses, but her exhibits 1-3 were received into evidence. Respondent called Michael Duchowny, M.D., an expert in pediatric neurology, as a witness, but offered no exhibits.

The transcript of hearing was filed September 30, 1993, and the parties were granted leave until October 11, 1993, to file proposed findings of fact. The respondent elected to file such proposals and they have been addressed in the appendix to this final order.

FINDINGS OF FACT

1. Riwchist Mitchell is the natural daughter of Dondee McCargo. She was born on September 5, 1989, at James Archer Smith Hospital in Homestead, Dade County, Florida, and her birth weight was in excess of 2500 grams.

2. Riwchist was delivered by Gregory J. Moore, M.D..

   
   

3. During delivery, Riwchist experienced a fractured clavicle and a right brachial plexus injury, manifesting itself as an Erb's palsy involving primarily cervical segments 5 and 6.

   
   

4. On May 28, 1991, January 8, 1993, and April 29, 1993, Riwchist was neurologically evaluated by Michael Duchowny, M.D., at the Miami Children's Hospital. Dr. Duchowny is board certified in pediatrics, pediatric neurology, and clinical neurophysiology.

   
   

5. Upon examination, Dr. Duchowny concluded that Riwchist suffered from a "mild" to "moderate" right Erb's palsy related directly to the right brachial plexus injury she received at birth, and a compulsive behavioral disorder known as trichotillomania. In Dr. Duchowny's opinion, which is credited, Riwchist's mental functioning is normal and not impaired due to any birth-related complications, and the physical impairment she suffers (right Erb's palsy) is a consequence of the injury she received during delivery to her right brachial plexus, which anatomical feature is distinct from the brain or spinal cord.

   
   

6. Under the circumstances, the proof fails to demonstrate that Riwchist suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery or resuscitation in the immediate post-delivery period, or that the injury Riwchist did suffer to her right brachial plexus rendered her permanently and substantially mentally and physically impaired.

   
   

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. Section 766.301, et seq., Florida Statutes, as amended by Chapter 93-251, Laws of Florida.

   
   

8. The Florida Birth-Related Neurological Compensation Plan (the "Plan") was established by the Legislature "for the purpose of providing compensation, irrespective of fault, for birth-related neurological injury claims" relating to births occurring on or after January 1, 1989. Section 766.303(1), Florida Statutes.

   
   

9. The injured "infant, his personal representative, parents, dependents, and next of kin," may seek compensation

   under the Plan by filing a claim for compensation with the Division of Administrative Hearings within five years of the infant's birth. Sections 766.302(3), 766.303(2), 766.305(1), and 766.313, Florida Statutes. The Florida Birth-Related Neurological Injury Compensation Association (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 written information relating to the issue of whether the injury is a birth-related neurological injury." Section 766.305(3), Florida Statutes.

   
   

10. If NICA determines that the injury alleged in a claim is a compensable birth-related neurological injury, it may award compensation to the claimant, provided that the award is approved by the Hearing Officer to whom the claim has been assigned. Section 766.305(6), Florida Statutes. If, on the other hand, NICA disputes the claim, as it has in the instant case, the dispute must be resolved by the assigned Hearing Officer in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

    
    

11. In discharging this responsibility, the Hearing Officer must make the following determination based upon the available evidence:

    
    

    Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the hearing officer, 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 neurological injury as defined in s.

    766.302(2).

    Section 766.309(1)(a), Florida Statutes.

    
    

12. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, to mean:

    
    

    . . . injury to the brain or spinal cord

    of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of

    labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.

    This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

    
    

13. Having carefully reviewed the evidentiary record developed in this case, the Hearing Officer agrees with NICA that Riwchist Mitchell has not suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes, and that, therefore, the subject claim is non-compensable under the Plan. As noted in the findings of fact, the persuasive proof demonstrated that the injury suffered by Riwchist Mitchell during delivery, a right brachial plexus injury, was not "a brain or spinal cord injury" and, moreover, such injury did not render Riwchist Mitchell "permanently and substantially mentally and physically impaired."

    
    

14. Where, as here, "the hearing officer determines that the injury alleged is not a birth-related neurological injury . . . he [is required to] enter an order [to such effect] and . . . cause a copy of such order to be sent immediately to the parties by registered or certified mail." Section 766.309(2), Florida Statutes. Such an order constitutes final agency action subject to appellate court review. Section 766.311(1), Florida Statutes.

CONCLUSION

Based on the foregoing findings of fact and conclusions of law, it is

ORDERED that the petition for compensation filed by Dondee McCargo, as parent and natural guardian of Riwchist Mitchell, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 14th day of October 1993.

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of October 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-2990N

Respondent's proposed findings of fact are addressed as follows:

1 & 3. Adopted in paragraph 1.

2. Adopted in paragraph 2, otherwise rejected as not supported by the proof.

4 & 5. Adopted in paragraph 3.

6. Adopted in paragraph 4, otherwise unnecessary detail.

7 & 8. Adopted in paragraphs 5 and 6, otherwise unnecessary detail.

ENDNOTES

1/ The transcript of hearing reflects that the case pended "In the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, Division of Administrative Hearing" and was heard before the "Honorable William J. Kendrick, as judge of the above-styled court." The transcript should properly reflect that the case pended before the "State of Florida, Division of Administrative Hearings," and was heard by the Honorable William J. Kendrick, Hearing Officer."

2/ Where, as here, NICA disputes the claim, the burden rests on the claimant to demonstrate entitlement to compensation. Section 766.309(1)(a), Florida Statutes. See also, Balino v. Department of Health and Rehabilitative Services, 348 So.2d 349, 350 (Fla. 1st DCA 1977), ("the burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

COPIES FURNISHED:

Murray B. Epstein, Esquire One Datran Center, Suite 1406 9100 South Dadeland Boulevard Miami, Florida 33156

(By Certified Mail)

W. Douglas Moody, Jr., Esquire

225 South Adams Street, Suite 250 Tallahassee, Florida 32302

(By Certified Mail)

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302 (By Certified Mail)

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this final order is entitled to judicial review pursuant to Sections 120.68 and 766.311, Florida Statutes. Review proceedings are governed by the Florida Rules Of Appellate Procedure. Such proceedings are commenced by filing one copy of a notice of appeal with the Agency Clerk Of The Division Of Administrative Hearings and a second copy, accompanied by filing fees prescribed by law, with the District Court Of Appeal, First District, or with the District Court Of Appeal in the appellate district where the party resides. The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-002990N

Orders for Case No: 93-002990N