STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

WISNER JOLIMER and GERTRUDE JOLIMER, )

as parents and natural guardians ) of WILKENS JOLIMER, a minor, )

)

Petitioner, )

)

vs. ) Case No. 96-5865N

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

)

Respondent. )

)

FINAL ORDER

Pursuant to notice, the Division of Administrative Hearings, by its duly designated Administrative Law Judge, William J. Kendrick, held a formal hearing in the above-styled case on

May 2, 1997, by video teleconference.

APPEARANCES

For Petitioner: No appearance at hearing.

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

Graham & Moody, P.A.

101 North Gadsden Street Tallahassee, Florida 32301

STATEMENT OF THE ISSUES

At issue in this proceeding is whether Wilkens Jolimer, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On September 6, 1996, Wisner Jolimer and Gertrude Jolimer, as parents and natural guardians of Wilkens Jolimer, a minor, filed a petition (claim) 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 December 20, 1996.1 NICA reviewed the claim, and on February 5, 1997, gave notice that it had "determined that such claim is not a 'birth-related neurological injury' within the meaning of Section 766.302(2), Florida Statutes," and requested that "an order [be entered] setting a hearing in this cause on the issue of the compensability of this claim." Such a hearing was duly scheduled for May 2, 1997.

At hearing, neither the Petitioners nor anyone on their behalf appeared, and no evidence was offered to support their claim. Respondent's Exhibit 1 (the medical records filed with DOAH on December 16, 1996) and Exhibit 2 (the deposition of Michael Duchowny, M.D.) were received into evidence.

The parties were accorded ten days from the date the transcript of hearing was filed with DOAH to file proposed final orders. The transcript was filed May 14, 1997, but neither party elected to file such a proposal.

FINDINGS OF FACT

Initial observations

1. As observed in the preliminary statement, neither Petitioners nor anyone on their behalf appeared at hearing, and no proof was offered to support their claim. Ordinarily, such failing would be dispositive of the case; however, notwithstanding Petitioners' failure of proof, Respondent elected to offer into evidence the medical records filed with DOAH on December 16, 1996, which included records relating to Wilkens Jolimer's (Wilkens') birth, as well as the opinion of Michael Duchowny, M.D., a board certified pediatric neurologist, to affirmatively resolve the issue as to whether Wilkens had suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes.

   Wilkens' birth and development

   
   

2. Wilkens was born July 11, 1996, at Florida Hospital, Orlando, Florida.

3. On January 23, 1997, following the filing of the claim for compensation, Wilkens was examined by Michael Duchowny, M.D., a board certified pediatric neurologist. Dr. Duchowny's physical and neurologic examination revealed the following:

   PHYSICAL EXAMINATION reveals an alert, pleasant and cooperative, well-developed, well-nourished, six-month-old, black male infant. The skin is warm and moist. There are no neurocutaneous stigmata. No digital, skeletal or palmar abnormalities are noted. There is a mild cranial asymmetry, with prominence of the left parietal region. The

   anterior and posterior fontanelle are patent and flat. Head circumference measures 44.7 cm, which approximates the 60th percentile for age. There is no frontal bossing. The neck is supple without masses, thyromegaly or adenopathy. There are four teeth. The cardiovascular, respiratory and abdominal examinations are normal.

   
   

   NEUROLOGIC EXAMINATION reveals Wilkins to be an active six-month-old with a well- developed curiosity and active vocalizations. He maintains good central gaze fixation and conjugately follows without difficulty.

   There is good visual tracking. There is blink to threat from both directions. The fundi are benign. Pupils are 3 mm and react briskly to direct and consensually presented light. The tongue and palate move well and there are no facial asymmetries. Motor examination reveals symmetric strength, bulk and tone. There are no adventitious movements, focal weakness or atrophy.

   Wilkins is able to sit without falling and he stands briefly, but cannot bear weight [which is consistent with a six-month-old infant and entirely normal]. There are no movement asymmetries. The deep tendon reflexes are 2+ and symmetric and the plantar responses are downgoing. Sensory examination is intact to withdrawal of all extremities to pin.

   Neurovascular examination discloses no cervical, cranial or ocular bruits and there are no temperature or pulse asymmetries.

   In Dr. Duchowny's opinion, which is credited, Wilkens' neurologic examination was entirely normal, and he evidenced no motor or cognitive deficits. Moreover, it was also Dr. Duchowny's opinion, which is likewise credited, that the records relating to Wilkens' birth do not reveal any untoward events occurring in the course of labor, delivery or the immediate post-delivery period which would have caused or contributed to neurological injury.

   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.

5. 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.

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 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.

1. 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. 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.

2. 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.

3. As the claimants, the burden rests on Petitioners 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.") By failing to appear and offer any proof, petitioner failed to sustain that burden.

4. Notwithstanding Petitioners' failing, Respondent offered in evidence the medical records associated with Wilkens' birth, as well as the opinions of Dr. Duchowny. As noted in the findings of fact, such proof demonstrated that Wilkens did not suffer an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury occurring in the course of

   labor, delivery, or resuscitation and, moreover, he suffered no mental or physical impairment, much less a substantial mental and physical impairment.

5. Given the foregoing, the record developed in this case failed to demonstrate that Wilkens suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Florida Birth-Related Neurological Injury Compensation Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997). Accordingly, the subject claim is not compensable under the Plan. Sections 766.302(2), 766.309(1), and 766.31(1), Florida Statutes.

6. 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 Wisner Jolimer and Gertrude Jolimer, as parents and natural guardians of

Wilkens Jolimer, a minor, be and the same is hereby denied with prejudice.

DONE AND ORDERED this 27th 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 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 27th day of June, 1997.

ENDNOTE

1/ The delay in service of the claim was occasioned by Petitioners' failure to file the medical records with the petition as required by Section 766.305(1), Florida Statutes. The medical records were filed December 16, 1996.

COPIES FURNISHED:

Wisner Jolimer and Gertrude Jolimer

307 Plymouth Rock Place Apopka, Florida 32712

W. Douglas Moody, Jr., Esquire Graham and Moody

101 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

David Hill, M.D.

500 East Rollins Avenue, Suite 201 Orlando, Florida 32803

Florida Hospital Legal Department

601 East Rollins Street Orlando, Florida 32803

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: 96-005865N

Orders for Case No: 96-005865N