STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

BRITTANY C. STORY, a Minor Child, ) by and through her Mother and ) Natural Guardian, CONSTELLA STORY, )

)

Petitioner, )

)

vs. ) CASE NO. 93-3028N

) 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 October 19, 1993, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioner: Eugene N. Betts, Esquire

1995 East Oakland Park Boulevard,

Suite 300

Fort Lauderdale, Florida 33306

For Respondent: David W. Black, Esquire

Atkinson, Diver, Stone & Cohen 1946 Tyler Street

Post Office Drawer 2088 Hollywood, Florida 33022-2088

STATEMENT OF THE ISSUES

Whether Brittany C. Story 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 January 29, 1993, Constella Story, as the mother and natural guardian of Brittany C. Story, a minor, 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 February 3, 1993. NICA reviewed the claim, and on or about May 13, 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 the Claimant's 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 July 26, 1993, DOAH issued a notice of hearing advising the parties that an evidentiary hearing would be held on October 19, 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 Constella Story and Melvin Grossman, M.D., as witnesses, and respondent called Michael Duchowny, M.D., as a witness. Joint exhibits 1-3 and respondent's exhibits 1-3 were received into evidence. A transcript of the hearing was not ordered.

At the conclusion of the hearing, the parties were granted leave until October 29, 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. Brittany C. Story is the natural daughter of Constella Story. She was born on January 10, 1990, at Broward General Medical Center, Broward County, Florida, and her birth weight was in excess of 2500 grams.

2. Brittany was delivered by George Edouard, M.D., who was, at all times material hereto, a participating physician in the Florida Birth-Related Neurological Injury Compensation Plan.

   
   

3. The claim for benefits under the Florida Birth- Related Neurological Injury Compensation Plan filed on behalf of Brittany contends that she "suffered a neurological impairment to wit: Erb's Palsy to the left upper extremity at the time of birth." To support such contention, petitioner offered the testimony of Melvin Grossman, M.D., a board certified neurologist, who opined that Brittany suffered a left brachial plexus palsy, an Erb's palsy, and that the injury to the left brachial plexus that resulted in such palsy most likely occurred during the course of delivery. It was, however, Dr. Grossman's opinion that Brittany's mental functioning was age appropriate and not substantially impaired, and that the physical impairment she suffers (left Erb's palsy) is the consequence of an injury to her left brachial plexus, which is not a brain or spinal cord injury.

   
   

4. Juxtaposed with the proof offered on behalf of petitioner, respondent offered the testimony of Michael Duchowny, M.D., who is board certified in pediatrics, neurology with special emphasis in child neurology, and clinical neurophysiology. It was Dr. Duchowny's opinion that the condition from which Brittany suffers was not caused in the course of labor, delivery, or resuscitation in the immediate post-delivery period in the hospital but, rather, was a consequence of congenital deformity. Dr. Duchowny concurs, however, that Brittany is not substantially mentally impaired, and that a brachial plexus injury, which can result in an Erb's palsy, is not an injury to the brain or spinal cord.

   
   

5. Here, it is not necessary to resolve the conflict in the testimony, as to the cause of Brittany's injury, since the proof is uncontroverted that a brachial plexus injury, the cause of Erb's palsy, is not a brain or spinal cord injury. Moreover, it is uncontroverted that Brittany is not substantially mentally impaired. Under such circumstances, the proof fails to demonstrate that Brittany 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 Brittany did suffer rendered her permanently and substantially mentally and physically impaired.

   CONCLUSIONS OF LAW

   
   

6. 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.

   
   

7. 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.

   
   

8. 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.

   
   

9. 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.

   
   

10. 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.

11. 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.

    
    

12. Having carefully reviewed the evidentiary record developed in this case, it is concluded that Brittany Story has not 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 a left brachial plexus injury was not "a brain or spinal cord injury" and, moreover, that Brittany Story was not "permanently and substantially mentally and physically impaired."

    
    

13. 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 Constella Story, as the mother and natural guardian of Brittany C. Story, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 3rd day of November 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 3rd day of November 1993.

APPENDIX TO RECOMMENDED ORDER, CASE NO. 93-3028N

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

1. Adopted in paragraphs 1 and 2.

2-7. Addressed in paragraph 3, otherwise subordinate or unnecessary detail.

8-10. Addressed in paragraph 4, otherwise subordinate or unnecessary detail.

11-13. Addressed in paragraph 5.

ENDNOTES

1/ Joint exhibit 3 is the medical records of Broward General Medical Center for Brittany Story, and was filed post hearing.

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:

(By certified mail)

Eugene N. Betts, Esquire

1995 East Oakland Park Boulevard, Suite 300 Fort Lauderdale, Florida 33306

David W. Black, Esquire Atkinson, Diver, Stone & Cohen 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

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: 93-003028N

Orders for Case No: 93-003028N