STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

CODY SMITH, a minor, by and ) through his parents and natural ) guardians LISA SMITH and JEFFREY ) SMITH, and LISA SMITH and JEFFREY )

SMITH, individually, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2993N

) 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 June 22, 1994, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Scott P. Schlesinger, Esquire

Sheldon J. Schlesinger, Esquire 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

For Respondent: David W. Black, Esquire

Atkinson, Diner, Stone, Black & Cohen, P.A.

1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 33022-2088

STATEMENT OF THE ISSUE

Whether Cody Smith has suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan, as alleged in the claim for compensation.

PRELIMINARY STATEMENT

On or about May 11, 1993, Cody Smith, a minor, by and through his parents and natural guardians, Lisa Smith and Jeffrey Smith, and Lisa Smith and Jeffrey Smith, individually, 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 May 17, 1993. NICA reviewed the claim, and on or about September 29, 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 requested the entry of "an order setting a hearing in this cause on the issue of compensability of the Claimants' Petition."

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 October 14, 1993, DOAH issued a notice of hearing advising the parties than an evidentiary hearing would be held on January 6, 1994, to determine "whether the injury claimed is a `birth-related neurological injury'." Thereafter, the hearing was continued at the parties' request and heard on June 22, 1994.

At hearing, petitioners called no witnesses, but their exhibits 1-9, 11 and

12 were received into evidence. Respondent also called no witnesses, but its exhibits 1 and 2 were received into evidence.

The transcript of hearing was filed July 18, 1994, and the parties were granted ten (10) days from that date 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. Cody Smith (Cody) is the natural son of Lisa Smith and Jeffrey Smith. He was born a live infant on May 1, 1991, at Memorial Hospital, in Broward County, Florida, and his birth weight was in excess of 2500 grams.

   
   

2. The physicians delivering obstetrical services during the birth of Cody were Sidney Morrison, M.D., and Robert Siudmak, M.D., who were, at all times material hereto, participating physicians in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

   
   

3. Cody's delivery at Memorial Hospital on May 1, 1991, was not without complications. Being post term, with a delivery weight of 10 pounds 3 ounces, Cody's extraction was difficult, and due to a "moderate to severe degree of shoulder dystocia" ("the shoulder was hung up in the birth canal") force was necessary to extract him from the birth canal. As a consequence of such force, trauma to segments of the brachial plexus occurred which induced a left upper extremity Erb's palsy. Today, while improved from his initial condition, Cody's physical impairment, occasioned during the course of delivery, may be described as permanent and substantial; however, a brachial plexus injury, which can result in an Erb's palsy, is not an injury to or a consequence of any injury to the brain or spinal cord. 1/ Moreover, Cody's mental functioning is age appropriate, and he has not been shown to have suffered any mental impairment, much less a substantial mental impairment.

   CONCLUSIONS OF LAW

   
   

4. 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.

   
   

5. The Florida Birth-Related Neurological Injury 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

   
   

6. 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.

   
   

7. 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.

   
   

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

   
   

   1. 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).

   2. Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital.

      Section 766.309(1)(a), Florida Statutes. 2/ An award may be sustained only if the Hearing Officer concludes that the "infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at birth." Section 766.31(1), Florida Statutes.

      
      

9. 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.

   
   

10. Here, the parties stipulated that the attending physicians who provided obstetric services during the birth of Cody Smith were "participating physician[s]" as that term is defined by Section 766.302(7), Florida Statutes, and as that term is used in Sections 766.301 through 766.316, Florida Statutes. However, the record developed in this case failed to demonstrate that Cody suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. As noted in the findings of fact, the persuasive proof demonstrated that the left brachial plexus injury Cody suffered was not "a brain or spinal cord injury" and, moreover, that Cody had not suffered any mental impairment. Accordingly, since Cody was not shown to be "permanently and substantially mentally and physically impaired" the subject claim is non- compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

    
    

11. 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 Cody Smith, a minor, by

and through his parents and natural guardians, Lisa Smith and Jeffrey Smith, and

Lisa Smith and Jeffrey Smith, individually, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 23nd day of August 1994.

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 23nd day of August 1994.

ENDNOTES

1/ In the opinion of Michael Duchowny, M.D., which is credited, the brachial plexus nerve system is anatomically distinct from the brain or spinal cord, and a brachial plexus injury, the cause of Cody's Erb's palsy, is not an injury to or a consequence of an injury to the brain or spinal cord.

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.")

APPENDIX

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

1. Adopted in paragraph 1.

2. Adopted in paragraph 2.

3. Adopted in paragraph 3, otherwise unnecessary detail.

4-9. Rejected as recitation of testimony or comment on the evidence, and subordinate to the findings made in paragraph 3 and endnote 1.

10. Not relevant.

COPIES FURNISHED:

(By Certified Mail)

Scott P. Schlesinger, Esquire Sheldon J. Schlesinger, Esquire 1212 Southeast Third Avenue Fort Lauderdale, Florida 33316

David W. Black, Esquire Atkinson, Diner, Stone, Black

& Cohen, P.A.

1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 33022-2088

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 1528

Tallahassee, Florida 32302

Ms. Charlene Willoughby Department of Business

and Professional Regulation Consumer Services

Suite 60

1940 North Monroe Street Tallahassee, Florida 32399-0750

Ms. Tanya Williams

Division of Health Quality Assurance Hospital Section

Agency for Health Care Administration 2727 Mahan Drive

Tallahassee, Florida 32308

Bill O'Neil General Counsel

Department of Insurance The Capitol PL LL

Tallahassee, Florida 32399-0300

Robert Siudmak, M.D. 1701 N.W. 123rd Street

Pembrook Pines, Florida 32323

Sidney Morrison, M.D. 1701 N.W. 123rd Street

Pembrook Pines, Florida 32323

South Broward Hospital District d/b/a Memorial Hospital

3105 Johnson Street

Hollywood, Florida 33021

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 appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth- Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The notice of appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 93-002993N

Orders for Case No: 93-002993N