STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

VALERIE LEEKS, as parent and ) natural guardian of DEVONTAE ) GRIFFIN, a minor, )

)

Petitioner, )

)

vs. ) Case No. 95-2911N

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

)

Respondent. )

)

FINAL ORDER

On March 20, 1997, a status conference was held in the above-styled case. At such time, the parties agreed to submit this case for resolution on an agreed record.

APPEARANCES

For Petitioner: Philip M. Gerson, Esquire

Jason Marguilies, Esquire

Law Offices of Philip M. Gerson, P.A. Miami Center, Suite 1310

1. Chopin Plaza

   Miami, Florida 33131-4324

   
   

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

   Graham & Moody, P.A.

2. North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUE

At issue is whether Devontae Griffin, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On June 8, 1995, Valerie Leeks, as parent and natural guardian of Devontae Griffin, a minor, filed a petition with the Division of Administrative Hearings (hereinafter referred to as "DOAH") for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (hereinafter referred to as the "Plan").

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (hereinafter referred to as "NICA") with a copy of the claim on June 9, 1995. NICA reviewed the claim and on November 28, 1995, gave notice that it had "determined that such claim was not a 'birth-related neurological injury' within the meaning of Section 766.302(2), Florida Statutes (1993), inasmuch as the infant . . . does not suffer from a substantial mental and physical impairment," and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim."

A number of hearings were scheduled, but continued for various reasons. Finally, on March 20, 1997, a status conference was held and the parties agreed to submit this case for resolution on an agreed record. By Order of March 21, 1997, April 25, 1997, was established as the date by which the parties' stipulation and agreed record was to be filed, and oral argument was scheduled for May 5, 1997.

Oral argument was entertained on May 5, 1997, at which time

the parties stipulated to the ultimate facts set forth in paragraphs 1 and 2 of the findings of fact which follow, and stipulated that the record would consist of the following:

1. the medical records filed with the Division of Administrative Hearings on June 8, 1995, and November 1, 1996; and, (2) the medical records attached to the notice of filing (filed March 19,

   1997),	the deposition of Marta Bustamante, M.D. (filed April 30,
   1997),	and the deposition of Michael Duchowny (filed April 25,
   1997).	The parties' stipulation was approved by Order of May 7,
   1997.

   
   

   Both parties elected to file proposed final orders, and they have been duly considered in the preparation of this final order.

   
   

   FINDINGS OF FACT

   
   

   Fundamental findings

   
   

   1. Valerie Leeks is the mother and natural guardian of Devontae Griffin (Devontae), a minor. Devontae was born a live infant on March 19, 1994, at Holy Cross Hospital, a hospital located in Fort Lauderdale, Florida, and his birth weight was in excess of 2500 grams.

   2. The physician providing obstetrical services at birth was Carlos Juardo, M.D., who was at all times material hereto a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.

      Whether Devontae suffered a "birth-related neurological injury"

   3. Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered an "injury to the brain . . . caused by oxygen deprivation . . . 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." Sections 766.302(2) and 766.309(1)(a), Florida Statutes.

   4. While the parties agree that Devontae suffers some neurologic impairment, they disagree as to its severity and genesis (whether caused by an injury to the brain caused by oxygen deprivation occurring during birth, as opposed to being prenatal or developmental in origin). Here, the significance of Devontae's neurologic impairment is dispositive of the claim, and it is therefore unnecessary to resolve the dispute regarding its origin.

   5. Devontae's neurologic presentation is consistent with mild1 cerebral palsy. He evidences mildly increased tone in the upper and lower extremities symmetrically, and bilateral pes planus (flat feet) associated with intoeing bilaterally. Essentially, Devontae postures both his arms with flexation at the elbow, and evidences mild motor and coordination deficits. Pooling of oral secretions, associated with drooling, and poorly coordinated tongue movements are also noted, which are consistent with oral-motor dysfunction.

   6. While Devontae clearly suffers some motor impairment, it does not seriously impair his overall functional abilities. He walks with a stable gait, runs, avoids obstacles, and jumps. He also undresses himself, feeds independently using a spoon, drinks independently using a training cup, and is otherwise shown to manipulate things with his hands and transfer well. Moreover, although his speech is not clear and is difficult to understand, Devontae possesses, age appropriately, a vocabulary of approximately fifty words and combines words. In all, Devontae can perform every activity of daily living and, considering that his condition is, at worst, static, will most likely do so in the future.

   7. While Devontae was shown to suffer a mild physical impairment as a consequence of his cerebral palsy, his mental status was not shown to have been adversely affected. In this regard, it is observed that Devontae is alert, exhibits age- appropriate socialization skills, possesses a vocabulary and combines words in an age-appropriate fashion, and communicates well with others. In all, the record contains no compelling proof that Devontae suffers any mental impairment, much less a substantial mental impairment.2

      CONCLUSIONS OF LAW

      
      

   8. 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.

   9. 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.

   10. 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.

   11. 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 administrative law judge 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 administrative

       law judge in accordance with the provisions of Chapter 120, Florida Statutes. Sections 766.304, 766.307, 766.309 and 766.31, Florida Statutes.

   12. In discharging this responsibility, the administrative law judge 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 administrative law judge, 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.3 An award may be sustained only if the administrative law judge 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.

   13. 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.

   14. Critical to a resolution of petitioner's claim is a determination of whether Devontae is "permanently and substantially mentally and physically impaired." Permanent and substantial are not, however, defined by the Plan.

   15. The American Heritage Dictionary of the English Language, New College Edition, defines "permanent" as:

       . . . 1. Fixed and changeless; lasting or meant to last indefinitely. 2. Not expected to change in status, condition, or place. . . [Middle English, from Old French, from Latin permanens, present participle of permanere, to remain throughout: per-, throughout + manere, to remain . . . --per`-ma-nent-ly adv.

       It further defines "substantial" as:

       
       

       . . . 1. Of, pertaining to, or having substance; material. 2. Not imaginary; true; real. 3. Solidly built, strong. 4. Ample, sustaining . . . 5. Considerable in importance, value, degree, amount, or extent

       . . . --sub-stan`tial-ly adv.

       
       

   16. When, as here, the Legislature has not defined the words used in a phrase, they should usually be given their plain and ordinary meaning. Southeastern Fisheries Association, Inc. v. Department of Natural Resources, 453 So. 2d 1351 (Fla. 1984).

       Where, however, the phrase contains a key word like "substantially," the phrase is plainly susceptible to more than one meaning. Under such circumstances, consideration must be accorded not only the literal or usual meaning of the word, but also to its meaning and effect in the context of the objectives and purposes of the statute's enactment. See, Florida State Racing Commission v. McLaughlin, 102 So. 2d 574 (Fla. 1958).

       Indeed, "[i]t is a fundamental rule of statutory construction that legislative intent is the polestar by which the court must be guided [in construing enactments of the legislative]." State v. Webb, 398 So.3d 820, 834 (Fla. 1981).

   17. Turning to the provisions of the Plan, certain insights may be gleaned regarding the meaning the Legislature intended to ascribe to the word "substantially," and more particularly its use in the phrase "permanently and substantially mentally and physically impaired." First, the Legislature has expressed its intent in Section 766.301(2), Florida Statutes, as follows:

       It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries. (Emphasis added.)

       
       

       "Catastrophic," an adjective of the noun "catastrophe," is defined by The American Heritage Dictionary of the English Language, New College Edition, as "a great and sudden calamity; disaster." (Emphasis added.)

   18. It is further observed that, physicians routinely classify mental and physical impairments as mild, moderate, or severe (substantial). Moreover, whether an infant suffered profound or catastrophic mental and physical injuries, qualifying for coverage under the Plan, should be manifest and not subject to serious debate. Stated otherwise, a fundamental purpose of the Plan is to provide a system in which liability is limited and determinative, and the remedy is expeditious and independent of proof of fault. Humana of Florida, Inc. v. McKaughn, 652 So. 2d 852, (Fla. 2d DCA 1995).

   19. Finally, as observed by the court in Humana of Florida, Inc. v. McKaughn, supra, the Florida Birth-Related Neurological Injury Compensation Plan, like the Worker's Compensation Act, is a "limited statutory substitute for common law rights and liabilities." Accordingly, "because the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms . . . [and] a legal representative of an infant should be free to pursue common law remedies for damages resulting in an injury not encompassed within the express provisions of the Plan." Humana of Florida, Inc. v. McKaughn, supra, at page 859. Accord, Carlile v. Game and Fresh Water Fish Commission, 354 So. 2d 362 (Fla. 1977), (A statute designed to change the common law rule must speak in clear, unequivocal terms, for the presumption is that no change

       in the common law was intended unless the statute is explicit in this regard).

   20. Given the Legislature's intent to restrict no-fault coverage under the Plan to "a limited class of catastrophic injuries," as well as the common practice among physicians to use terms such as "mild," "moderate," or "severe" to describe the degree of an infant's injuries, it is concluded that the word "substantially," as used in the phrase "permanently and substantially mentally and physically impaired," denotes a "catastrophic" mental and physical injury, as opposed to one that might be described as "mild" or "moderate."

   21. Applying the foregoing standards to the facts of this case compels the conclusion that Devontae's physical impairment can best be described as mild, as opposed to severe. Moreover, as heretofore noted, there is no compelling proof that Devontae has suffered any mental impairment. Consequently, there being no showing that Devontae was "permanently and substantially mentally and physically impaired," the claim is not compensable under the Plan. Sections 766.302(2) and 766.309(1), Florida Statutes, and Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997).

   22. Where, as here, the administrative law judge 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 Valerie Leeks, as parent and natural guardian of Devontae Griffin, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 26th day of June, 1997, in Tallahassee, Leon County, Florida.

WILLIAM J. KENDRICK

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32301-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 26th day of June, 1997.

ENDNOTES

1/ Although often subjective, the proof demonstrates that physicians routinely classify mental and physical impairments as mild, moderate, and substantial (severe).

2/ In so concluding, Dr. Bustamante's observations that Devontae demonstrates evidence of hyperactivity and attention deficit disorder which may result in diminished developmental skills, low self-esteem, or aggressive behavior, have not been overlooked.

Currently, however, Devontae evidences no specific behavioral problems, and such conditions are routinely addressed with small teacher-to-student ratios and medication. In all, Dr. Bustamante did not suggest, with any degree of medical certainty, that such conditions would limit Devontae's future development but, merely, that it was a possibility.

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.")

COPIES FURNISHED:

(By certified mail)

Philip M. Gerson, Esquire Jason Marguilies, Esquire

Law Offices of Philip M. Gerson, P.A. Miami Center, Suite 1310

1. Chopin Plaza

   Miami, Florida 33131-4324

   
   

   Ms. Valerie Leeks

   3431 Northwest 5th Street

   Fort Lauderdale, Florida 33311

   
   

   W. Douglas Moody, Jr., Esquire Graham & Moody, P.A.

2. North Gadsden Street Tallahassee, Florida 32301

Lynn Dickinson, Executive Director Florida Birth-Related Neurological

Injury Compensation Association Post Office Box 14567 Tallahassee, Florida 32317-4567

Holy Cross Hospital Legal Department

4725 North Federal Highway

Fort Lauderdale, Florida 33308

Carlos Juardo, M.D. 2926 Port Royale Lane

Fort Lauderdale, Florida 33308

Ms. Charlene Willoughby

Agency for Health Care Administration Consumer Services Unit

Post Office Box 14000 Tallahassee, Florida 32308

Dan Sumner, General Counsel Department of Insurance

The Capitol, Lower Level 26 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: 95-002911N

Orders for Case No: 95-002911N