STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

NORKA CALVO and EDDIE YBERN, )

o/b/a EDUARDO CLAVO, )

)

Petitioners, )

)

vs. ) CASE NO. 93-3032N

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

)

Respondent. )

)

AGREED FINAL ORDER

This cause came on to be heard by telephone conference call on September 2, 1993, wherein counsel for petitioners and counsel for respondent agreed to the entry of this final order, as requested by counsel for respondent in his letter of August 3, 1993. Accordingly, the Hearing Officer has considered and reviewed the medical records submitted by the petitioners in conjunction with the petition, including the records of Jackson Memorial Hospital for Norka Calvo and Eduardo Calvo, the medical records at Miami Children's Hospital, the child's pediatric group, and the Bascom Palmer Institute. In addition, the Hearing Officer has considered the report of Dr. Michael Duchowny dated April 15, 1993.

Based upon such submittals, and the parties' agreement as to the entry of this final order, the undersigned Administrative Hearing Officer makes the following findings:

1. The Division of Administrative Hearings of the Department of Management Services has jurisdiction over the parties hereto and the subject matter hereof.

   
   

2. Venue for this action rests in Dade County, Florida.

   
   

3. The parties have had an adequate and full opportunity to present their positions in this matter.

   
   

4. That on July 10, 1990, Norka Calvo delivered a male infant known as Eduardo Gabriel Calvo at Jacksonville Memorial Hospital. The attending physician was Samir N. Beydoun, M.D.

5. The claimants filed a petition seeking benefits from NICA on or about February 22, 1993.

   
   

6. In response to the petition, NICA timely filed a notice of non-compensability of this claim.

   
   

7. Pursuant to the medical report of Dr. Michael Duchowny dated April 15, 1993, which is adopted herein and incorporated herein by reference, Eduardo Calvo has not suffered a birth related neurological injury as defined by Section 766.302(2), Florida Statutes.

   
   

8. Pursuant to Section 766.309(1)(c), Florida Statutes, no compensation is awardable pursuant to Section 766.31, Florida Statutes.

   
   

9. The petitioners' claim for recovery of attorney's fees and costs is denied, and each party shall bear its own attorney's fees and costs. It is, therefore,

ORDERED that:

1. The claim filed by the petitioners on or about February 22, 1993, ought to be and is hereby denied with prejudice, this Administrative Hearing Officer finding that this claim is non- compensable.

   
   

2. NICA shall pay no benefits pursuant to Section 766.301, et. seq., Florida Statutes, and in particular shall pay no benefits pursuant to Section 766.31, Florida Statutes.

   
   

3. The claimants' claim for recovery of attorney's fees and costs is denied, and each party shall bear their own attorney's fees and costs.

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

WILLIAM J. KENDRICK

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32399-1550

(904) 488-9675

Filed with the Clerk of the

Division of Administrative Hearings this 3rd day of September, 1993.

COPIES FURNISHED:

John D. Kelner, Esquire 1200 Courthouse Tower

44 West Flagler Street Miami, Florida 33130

David W. Black, Esquire Post Office Drawer 2088

Hollywood, Florida 33022-2088

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Barnett Bank, Suite 312

315 Calhoun Street 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 Section 120.68, 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: 93-003032N

Orders for Case No: 93-003032N