STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

DARIUS JEROME DURANT, a minor )

child, by and through JEROME and ) MARIE DENEEN DURANT, as parents ) and natural guardians, )

)

Petitioners, )

)

vs. ) CASE NO. 93-2998N

) 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 26, 1993, in Lakeland, Florida.

APPEARANCES

For Petitioner: W. Clinton Wallace, Esquire

Post Office Box 177 Lakeland, Florida 33802

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

Taylor, Brion, Buker & Greene

225 South Adams Street, Suite 250 Tallahassee, Florida 32302-3189

STATEMENT OF THE ISSUES

Whether Darius Jerome Durant has suffered an injury for which compensation should be awarded under the Florida

Birth-Related Neurological Injury Compensation Plan, as alleged in their claim for compensation. 1/

PRELIMINARY STATEMENT

On or about March 5, 1992, Jerome Durant and Marie Deneen Durant, as the parents and natural guardians of

Darius Jerome Durant, 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 March 6, 1992. NICA reviewed the claim, and on or about June 10, 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 Hearing Officer assigned the case "enter an order setting a hearing in this cause on the issue of the 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 October 26, 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, the parties stipulated that the weight of the infant Darius Jerome Durant was at least 2500 grams at birth and that the physician providing obstetrical services was a "participating physician" within the meaning of Section 766.302(7), Florida Statutes. Petitioners' exhibits

1 and 2, and respondent's exhibits 1 and 2 were received into evidence. 2/

At the conclusion of the hearing, the parties were granted leave until December 13, 1993, to file proposed findings of fact. The parties' proposals have been addressed in the appendix to this final order.

FINDINGS OF FACT

1. Darius Jerome Durant is the natural son of Jerome Durant and Marie Deneen Durant. He was born on August 21,

   1991, at Winter Haven Hospital, in Winter Haven, Florida, and his birth weight was in excess of 2500 grams.

   
   

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

   
   

3. The neurological examinations of Darius reveal that he suffers from a "mild" right Erb's palsy related directly to an injury to the right brachial plexus he suffered during the course of delivery. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury. Moreover, the impairment from which he suffers is not substantial in nature and, while suffering some motor developmental delay, he was not shown to have suffered any intellectual deficit due to any birth-related complications.

   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 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 determination 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. 3/ 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 have stipulated that the attending physician who provided obstetric services during the birth of Darius Jerome Durant was a "participating physician" 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 demonstrates that Darius 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 record demonstrated that a right brachial plexus injury was not "a brain or spinal cord injury" and, moreover, that Darius was not "permanently and substantially mentally . . . impaired." Accordingly, the subject claim is non-compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes.

12. 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 Jerome Durant and Marie Deneen Durant, as parents and natural guardians of Darius Jerome Durant, be and the same is hereby denied with prejudice.

DONE AND ORDERED in Tallahassee, Leon County, Florida, this 28th day of December 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 28th day of December 1993.

ENDNOTES

1/ At the commencement of the hearing, petitioners objected for the record to the hearing as being premature based on their assertion that the claim had not been reviewed by a medical advisory panel appointed by the Insurance Commission. Section 766.308, Florida Statutes, as amended by Chapter 93-251, Laws of Florida. Petitioners did not, however, request a continuance, and did not suggest or demonstrate any prejudice to their proceeding to hearing absent such report. Under the circumstances, the objection is rejected as untimely and without merit since the lack of review was not contended to, or shown to affect the fairness of the proceedings.

2/ Respondent's exhibit 2 was the deposition of Michael S. Duchowny, M.D., which was taken and filed post hearing.

3/ 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), ("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")

APPENDIX

Petitioners have submitted two proposed final orders, one finding a birth-related neurological injury and the other finding no birth related neurological injury. Here, petitioners' proposal concluding that no birth related neurological injury occurred has been adopted in substance, although not verbatim with regard to subordinate details or recitations of testimony.

Respondent's proposed final order has been adopted in substance, although not verbatim with regard to subordinate details or recitations of testimony.

COPIES FURNISHED:

(By Certified Mail)

H. Clinton Wallace, Esquire Post Office Box 177 Lakeland, Florida 33802

W. Douglas Moody, Jr., Esquire Suite 250

225 South Adams Street Tallahassee, Florida 32302

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: 93-002998N

Orders for Case No: 93-002998N