STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

SUSAN PETTY ROGERS and CALYVIN )

ROGERS, as parents and natural ) and guardians of CHELSEA ROGERS, ) a minor, )

)

Petitioners, )

)

vs. ) CASE NO. 95-1642N

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

)

Respondent. )

___________________________________)

FINAL ORDER

This cause came on for consideration of the petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan, respondent's response to the petition for benefits, and the parties' joint stipulation filed November 8, 1995.

STATEMENT OF THE CASE

1. By petition filed April 5, 1995, petitioners sought benefits pursuant to Sections 766.301 - 766.316, Florida Statutes, the "Florida Birth-Related Neurological Injury Compensation Plan."

   
   

2. 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

1. By stipulation filed November 8, 1995, petitioners and respondent stipulated as follows:

   1. That pursuant to Chapter 766.301 - 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the Association) by Susan Petty Rogers and Calyvin Rogers (the petitioners)

      for benefits under Chapter 766.301 - 766.316, F.S.

      
      

   2. 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.

      
      

   3. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim

      
      

   4. That the parties agree the medical records of Chelsea Rogers reveal that she suffers form an injury to the right brachial plexus. A brachial plexus injury is not, however, a brain or spinal cord injury. Chelsea has also been diagnosed by

      T. Wayne Conger, Ph.D., a neuropsychologist, as having a cognitive disorder which may be related to her birth. The cognitive disorder is not, however, a brain injury " which renders the infant permanently and substantially mentally and physically impaired." Therefore, Chelsea does

      not fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302.(2), Florida Statutes.

      
      

   5. That the infant, Chelsea Rogers was born at Tallahassee Memorial Hospital on April 5, 1990, and that the said hospital was a licensed Florida hospital. The participating physician who was present at the birth and delivered obstetrical services was A. J. Brickler, M.D.

      
      

   6. That the infant, Chelsea Rogers, weighed 4,510 grams which is in excess of 2,500 grams.

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 Chelsea Rogers did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes.

1. The medical records and other documentation of record in this case reveal, consistent with the parties' stipulation, that Chelsea Rogers suffered a right brachial plexus injury at birth. A brachial plexus injury is not, however, a brain or spinal cord injury and such injury did not render her substantially physically impaired. Moreover, while Chelsea Rogers may have a cognitive disorder, she is not substantially mentally impaired.

   
   

   CONCLUSIONS OF LAW

   
   

2. 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 (1993).

   
   

3. The Florida Birth-Related Neurological Injury 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.

   
   

4. 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.

   
   

5. 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.

   
   

6. 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. 766.303(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), 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.

      
      

7. 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.

   
   

8. Here, the parties have stipulated that the attending physician who provided obstetric services during the birth of Chelsea Rogers 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 fails to demonstrate that Chelsea Rogers 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 Chelsea Rogers was not "permanently and substantially mentally and physically impaired." Accordingly, without regard to the cause of her injuries or deficits, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

   
   

9. 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.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusions of Law, it is

ORDERED that the petition for compensation filed by Susan Petty Rogers and Calyvin Rogers, as parents and natural guardians of Chelsea Rogers, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 14th day of November 1995 in Tallahassee, Leon County, Florida.

___________________________________ 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 14th day of November 1995.

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)

Vinson Barrett, Esquire

101 North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association 1435 Piedmont Drive East, Suite D Post Office Box 14567 (32317-4567)

Tallahassee, Florida 32312

A. J. Brickler, III, M.D. 1705 South Adams Street Tallahassee, Florida 32301

Tallahassee Memorial Regional Medical Center Legal Department

1300 Miccosukee Road

Tallahassee, Florida 32308

Ms. Tanya Williams

Agency for Health Care Administration Division of Health Quality Assurance Hospital Section

2727 Mahan Drive

Tallahassee, Florida 32308

Ms. Charlene Willoughby Department of Business and

Professional Regulation Consumer Services

1940 North Monroe Street Tallahassee, Florida 32399-0784

Dan Sumner, General Counsel Department of Insurance

The Capitol, PL-11

Tallahassee, Florida 32399-0300

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 appropriate District Court of Appeal. See, Section 120.68(2), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Carreras, 598 So.2d 299 (Fla. 1st DCA 1992). The Notice of Appeal must be filed within 30 days of rendition of the order to be reviewed.

Docket for Case No: 95-001642N

Orders for Case No: 95-001642N