STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

KARINA (MOTHER) AND SCOTT )

(FATHER) MIKELSON, on behalf of ) and as natural guardians of ) OLIVIA REESE MIKELSON, a minor, )

)

Petitioners, )

)

vs. )

)

FLORIDA BIRTH-RELATED )

NEUROLOGICAL INJURY )

COMPENSATION ASSOCIATION, )

)

Respondent. )

Case No. 11-2657N

)

FINAL ORDER

Pursuant to notice, a final hearing was held in this case on January 23, 2013, by video teleconference with sites in Jacksonville and Tallahassee, Florida, before Susan Belyeu Kirkland, an Administrative Law Judge of the Division of

Administrative Hearings.

APPEARANCES

For Petitioners: Karina Mikelson, pro se

Scott Mikelson, pro se 95495 Sonoma Drive

Fernandina Beach, Florida 32034

For Respondent: David W. Black, Esquire

Frank, Weinberg and Black, P.L. 7905 Southwest 6th Court Plantation, Florida 33324

STATEMENT OF THE ISSUE

The issue in this case is whether Petitioners are entitled to reimbursement for dancing lessons for Olivia Reese Mikelson.

PRELIMINARY STATEMENT

On October 22, 2012, Petitioners, Karina Mikelson and Scott Mikelson, on behalf of and as natural guardians of Olivia Reese Mikelson (Olivia), a minor, filed a petition

requesting reimbursement from Respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), for dance classes for Olivia.

At the final hearing, Karina Mikelson testified on behalf of Petitioners. Petitioners sought to introduce Petitioners' Exhibits 1 through 3 in evidence. The exhibits were ruled as hearsay and were not accepted. Petitioners proffered Petitioners' Exhibits 1 through 3. Petitioners were given ten days after the close of the hearing to file a copy of a video as a late-filed proffered exhibit. Petitioners have not filed a video.

At the final hearing, NICA did not present any live testimony. Respondent's Exhibit 1, which is the transcript of the deposition of Raymond J. Fernandez, M.D., and the deposition exhibits was admitted in evidence.

The Transcript of the final hearing was filed on February 21, 2013. The parties were given ten days after the filing of the Transcript to file proposed final orders.

Respondent filed a proposed final order on March 1, 2013. Petitioners did not file a proposed final order.

FINDINGS OF FACT

1. On December 5, 2011, an Order Approving Stipulation and Joint Petition for Compensation of Claim Arising out of Florida Birth-Related Neurological Injury Pursuant to Chapter 766, Florida Statutes, was entered awarding benefits under the Florida Birth-Related Neurological Injury Compensation Plan (Plan) for Olivia Reese Mikelson. Part of the award included an award for future expenses as incurred. The Order also provided that the Division of Administrative Hearings retained jurisdiction to resolve disputes regarding the parties' compliance with the terms of the Order.

2. By letter filed on October 22, 2012, Petitioners petitioned to have NICA reimburse them for the cost of dance lessons for Olivia, who was diagnosed with Cerebral Palsy. Petitioners felt the dance lessons were therapeutic and benefited Olivia. Petitioners do not have a medical doctor's prescription for dance lesson for Olivia.

   
   

3. Olivia, who was 27 months old at the time of the final hearing, receives occupational therapy twice a week; speech therapy every other week; and physical therapy once a month. NICA pays for these therapies. Petitioners have been seeing an overall improvement in Olivia's abilities.

4. Olivia began taking dance lessons in August 2012. In October 2012, Olivia's frequency for therapy sessions at the rehabilitation center had decreased. Mrs. Mikelson does not know that the decrease in frequency of therapy sessions is a result of the dance lessons.

5. Respondent presented the deposition testimony of Raymond J. Fernandez, M.D., who is board-certified in pediatric neurology. Dr. Fernandez examined Olivia in August 2011 when she was seeking benefits from NICA. Dr. Fernandez opined that the dance lessons are not medically necessary for Olivia's condition. Dr. Fernandez's definition of "medically necessary" comports with the definition of that term as found at section 627.732(2), Florida Statutes, which provides:

   1. “Medically necessary” refers to a medical service or supply that a prudent physician would provide for the purpose of preventing, diagnosing, or treating an illness, injury, disease, or symptom in a manner that is:

      1. In accordance with generally accepted standards of medical practice;

      2. Clinically appropriate in terms of type, frequency, extent, site, and duration; and

         
         

      3. Not primarily for the convenience of the patient, physician, or other health care provider.

         
         

6. Dr. Fernandez does not know of any scientific, controlled studies which would support the proposition that dance lessons are a type of therapy that would be prescribed as medically necessary for cerebral palsy.

   CONCLUSIONS OF LAW

   
   

7. The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. §§ 766.301-766.316, Fla. Stat. (2012).

8. Petitioners have the burden to establish that the dance lessons are the type of expenses that can be awarded pursuant to section 766.31. See Balino v. Dep't of Health & Rehab. Servs.,

   348 So. 2d 349, 350 (Fla. 1st DCA 1977)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative of an issue before an administrative tribunal.").

9. Section 766.31 provides that the Administrative Law Judge may make an award for "[a]ctual expenses for medically necessary and reasonable medical and hospital, habilitative and training, family residential or custodial care, professional residential, and custodial care and service, for medically necessary drugs, special equipment, and facilities, and for related travel." Petitioners must establish that the dance

   
   

   lessons are medically necessary. Petitioners have failed to meet their burden.

10. Dr. Fernandez, who is a board-certified pediatric neurologist and who has examined Olivia, is of the opinion that the dance lessons are not medically necessary. He knows of no scientific, controlled studies that would support a prescription for dance lessons for cerebral palsy. Based on the testimony of Dr. Fernandez, the dance lessons are not medically necessary; therefore, Petitioners are not entitled to an award for those expenses.

CONCLUSION

Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition filed by Karina Mikelson and Scott Mikelson on behalf of and as natural guardians of Olivia Reese Mikelson is dismissed with prejudice.

DONE AND ORDERED this 8th day of March, 2013, in Tallahassee, Leon County, Florida.

S

SUSAN BELYEU KIRKLAND

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(850) 488-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

COPIES FURNISHED:

(Via certified mail)

Filed with the Clerk of the Division of Administrative Hearings this 8th day of March, 2013.

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association

Elizabeth Dudek, Secretary Health Quality Assurance

Agency for Health Care Administration 2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(Certified Mail No. 7012 1640 0000 7864 0439)

NOTICE OF RIGHT TO JUDICIAL REVIEW

Review of a final order of an administrative law judge shall be by appeal to the District Court of Appeal pursuant to section 766.311(1), Florida Statutes. Review proceedings are governed by the Florida Rules of Appellate Procedure. Such proceedings are commenced by filing the original notice of administrative appeal with the agency clerk of the Division of Administrative Hearings within 30 days of rendition of the order to be reviewed, and a copy, accompanied by filing fees prescribed by law, with the clerk of the appropriate District Court of Appeal. See § 766.311(1), Fla. Stat., and Fla. Birth-Related Neurological Injury Comp. Ass'n v. Carreras, 598 So. 2d 299 (Fla. 1st DCA 1992).

Docket for Case No: 11-002657N

Orders for Case No: 11-002657N