STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
LISA TAYLOR and CLYDE RAY, Sr., )
individually and as parents and ) natural guardians of CLYDE RAY, ) JR. a minor, )
)
Petitioners, )
)
vs. ) CASE NO. 93-3029N
) FLORIDA BIRTH-RELATED NEUROLOGICAL ) INJURY COMPENSATION ASSOCIATION, )
)
Respondent. )
)
FINAL ORDER
This cause came on for consideration of the "Petition for Benefits Pursuant to Florida Statute Section 766.301 et seq.," respondent's response to the petition for benefits, and the parties' joint stipulation filed November 12, 1993.
STATEMENT OF THE CASE
By petition filed August 21, 1992, petitioners, Lisa Taylor and Clyde Ray, Sr., individually and as parents and natural guardians of Clyde Ray, Jr., a minor, sought benefits pursuant to Sections 766.301-766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Plan."
In reply to such petition, respondent, Florida Birth-Related Neurological Injury Compensation Association (NICA), filed a response contending that the subject claim was not compensable because the infant did not suffer a birth-related neurological injury as defined by law.
FINDINGS OF FACT
By stipulation filed November 12, 1993, petitioners and respondent stipulated as follows:
COMES NOW, CHARLES PATRICK, ESQUIRE,
Attorney for CLYDE RAY, JR., a minor, and LISA TAYLOR and CLYDE RAY SR., individually and as parents and natural guardians of CLYDE RAY, JR., and COMES NOW, MARK J. ZIENTZ, ESQUIRE, Attorney for FLORIDA BIRTH RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,
who hereby stipulate and agree as follows:
That pursuant to Chapter 766, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth Related Neurological Injury Compensation
Association (the Association) on behalf of Clyde Ray, Jr., and Clyde Ray, Sr., and Lisa Taylor (the Petitioners) for benefits under Chapter 766, F.S.
That a timely filed claim for benefits complying with the requirements of F.S.
766.305 was filed by Petitioners and a timely denial was filed on behalf of the Association.
That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim.
That Section 766.302(2), Florida Statutes, requires an infant to suffer both a permanent and substantial mental and physical impairment to fall within the definition of a "Birth-related neurological injury" making said infant eligible for coverage by the Florida Birth-Related Neurological Injury Compensation Plan.
The parties agree that the infant, Clyde Ray, Jr., does not exhibit substantial physical impairment so as to fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302(2), Florida Statutes.
That the infant, Clyde Ray, Jr., was born at Jackson Memorial Hospital on June 17, 1990, and that said hospital was a licensed Florida Hospital and the attending physicians were participating physicians within the meaning of Chapter 766, Florida Statutes.
WHEREFORE, based upon the above stipulated set of facts, it is respectfully requested that the Division of Administrative Hearings approve the stipulations as being consistent with the evidence in this cause and enter an order denying the claim against the Association on the basis that Clyde Ray, Jr., did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject of, these proceedings. Section 766.301, et seq., Florida Statutes, as amended by Chapter 93-251, Laws of Florida.
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.
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.
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.
In discharging this responsibility, the Hearing Officer must make the following determinations 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).
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), Florida Statutes. 1/ 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.
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 congenital abnormality.
Here, the parties have stipulated that the attending physicians who provided obstetric services during the birth of Clyde Ray, Jr., were "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 parties have further stipulated that Clyde Ray, Jr., has not suffered a substantial physical impairment. Accordingly, the subject claim is non-compensable under the Plan. Sections 766.302(2), 766.309(1) and 766.31(1), Florida Statutes
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 Lisa Taylor and Clyde
Ray, Jr., individually and as parents and natural guardians of Clyde Ray, Jr., a
minor, be and the same is hereby denied with prejudice.
DONE AND ORDERED in Tallahassee, Leon County, Florida, this 29th 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 29th day of November 1993.
ENDNOTE
1/ 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)
Charles B. Patrick, Esquire 1648 South Bayshore Drive Miami, Florida 33133
Mark L. Zientz, Esquire Williams & Zientz Datran Two, Suite 1100
9130 South Dadeland Boulevard Miami, Florida 33156
Wilbur Brewton, Esquire
225 South Adams Street, Suite 250 Tallahassee, Florida 32301
Lynn Dickinson, Executive Director Florida Birth-Related Neurological
Injury Compensation Association Barnett Bank, Suite 312
315 Calhoun Street Tallahassee, Florida 32302
Patricia I. Murray Attorney-at-Law
FOWLER, WHITE, BURNETT, HURLEY, BANICK & STRICKROOT, P.A.
11th Floor Courthouse Center
175 Northwest First Avenue Miami, Florida 33128-1835
Maria Arista-Volsky Assistant County Attorney
Dade County Attorney's Office Metro Dade Center, Suite 2810
111 Northwest First Street Miami, Florida 33128-1993
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.
| Issue Date | Document | Summary |
|---|---|---|
| Nov. 29, 1993 | DOAH Final Order | Infant who did not suffer substantial physical impairment did not suffer birth related neurological injury as defined by law. |
