ARELLANO, SR., on behalf of and ) as parents and natural ) guardians of ELI JOE ARELLANO, ) JR., a minor, )
vs. )
Respondent. )
Case No. 04-0431N
Pursuant to notice, the Division of Administrative Hearings, by Administrative Law Judge William J. Kendrick, held a hearing in the above-styled case on May 26, 2005, in Crestview, Florida.
For Respondent: M. Mark Bajalia, Esquire
At issue is whether Eli Joe Arellano, Jr., a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
On February 6, 2004, Cathy Arellano and Eli Joe Arellano, Sr., as parents and natural guardians of Eli Joe Arellano, Jr. (Joe), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the Plan.
DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on February 9, 2004, and on May 13, 2004, following an extension of time within which to do so, NICA filed its Response to Petition for Benefits, wherein it gave notice that it was of the view that Joe did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and as required for coverage under the Plan. Consequently, a hearing was scheduled to resolve whether the claim was compensable.
At hearing, Petitioners, Cathy Arellano and Eli Joe Arellano, Sr., testified on their own behalf, and called Christina Perez, as a witness. Petitioners' Exhibits 1 and 2, and Joint Exhibits 1-13, were received into evidence. No other witnesses were called, and no further exhibits were offered.
The transcript of the hearing was filed June 17, 2005, and the parties were accorded 10 days from that date to file written argument or proposed final orders. Petitioners elected to file written argument (by letter of June 3, 2005), and their submittal has been duly-considered.
Cathy Arellano and Eli Joe Arellano, Sr., are the natural parents of Eli Joe Arellano, Jr., a minor. Joe was born a live infant on February 17, 1999, at Fort Walton Beach Medical Center, a hospital located in Fort Walton Beach, Florida, and his birth weight exceeded 2,500 grams.
The physician providing obstetrical services at Joe's birth was Thomas H. Moraczowski, M.D., who, at all times material hereto, was a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan, as defined by Section 766.302(7), Florida Statutes.
Coverage under the Plan
Pertinent to this case, coverage is afforded by the Plan for infants who suffer a "birth-related neurological injury," defined as an "injury to the brain or spinal cord . . . caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant
permanently and substantially mentally and physically impaired."
§§ 766.302(2), Fla. Stat. See also §§ 766.309(1) and 766.31(1).
In this case, Petitioners are of the view that Joe suffered a "birth-related neurological injury" because it is their "belief . . . [based on] the medical records and injuries sustained at birth [such as bruises on top of the head and face and broken collarbone] . . . Joe has sustained a spinal cord or brain injury resulting in Cerebral Palsy Hypotonia." (Pre- Hearing Stipulation, paragraph B1) In contrast, NICA is of the view that Joe did not suffer a "birth-related neurological injury" because his impairments were not occasioned by 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, regardless of the etiology of Joe's impairments, he is not "permanently and substantially mentally and physically impaired." (Pre-Hearing Stipulation, paragraph B2). Here, Respondent's view is most consistent with the proof.
Joe's birth and immediate postnatal course
At or about 3:30 p.m., February 16, 1999,
Mrs. Arellano, with an estimated delivery date of February 21, 1999, and the fetus at 39 2/7 weeks gestation, presented to Fort Walton Beach Medical Center, in labor. At the time,
Mrs. Arellano's membranes were noted as intact, and vaginal
examination revealed the cervix at 5-6 centimeters dilation, effacement at 75 percent, and the fetus at -3 station. Uterine contractions were described as moderate, at a frequency of 5-7 minutes, and fetal monitoring revealed a reassuring fetal heart rate, with a baseline in the 130-beat per minute range.
Mrs. Arellano was admitted to labor and delivery at 4:15 p.m.; an IV was started at 5:18 p.m.; her membranes were artificially ruptured at 5:22 p.m., with clear fluid noted; and Petocin augmentation was started at 6:20 p.m. Thereafter,
Mrs. Arellano's labor slowly progressed until 1:55 a.m., February 17, 1999, when complete cervical dilation was noted, and Joe was delivered vaginally at 2:01 a.m. Notably, fetal monitoring revealed a reassuring fetal heart rate throughout the course of labor, but, at 10 pounds 7 ounces, Joe was large for gestational age (LGA), and delivery was complicated by a shoulder dystocia, which was relieved by hyperflexion of the legs to the maternal abdomen, suprapubic pressure, and corkscrew rotation of the infant's posterior shoulder to the anterior plane. Nevertheless, although not diagnosed at the time, Joe suffered a fractured clavicle during delivery, which healed without apparent complication.
At delivery, Joe was reported to be "healthy and vigorous," and did not require resuscitation. Cord blood pH was
reported as normal (7.25), as were Joe's Apgar scores, which were noted as 9 and 9, at one and five minutes, respectively.1
Following delivery, Joe was transported to the regular newborn nursery, where he was received at 2:30 a.m. Newborn assessment noted "L[igh]t bruising to forehead/top of head" and "mild" molding, observations that were not shown to have any clinical significance in this case. Otherwise, Joe's newborn assessment was unremarkable, as was the remainder of his postnatal course, and he was discharged with his mother on February 19, 1999.
Joe's subsequent development
Following discharge from Fort Walton Beach Medical Center, Joe's early development was age appropriate; however, over time, his mother voiced a number of concerns about his development, and in December 2000 he was referred by his pediatrician to the Child Neurology Center of Northwest Florida for evaluation. There, Joe was initially seen for a neurology consultation by Tim S. Livingston, M.D., who reported the results of his January 4, 2001, evaluation, as follows:
REASON FOR CONSULTATION: Hypotonia. PRESENT ILLNESS
"Joe" is a 22-month-old, possibly left- handed young boy who presents with his family for evaluation of the above concerns. His mother indicates she has several concerns about his development. She is most
concerned about his gait. She indicates that ever since he has been walking he has had a tendency to in-toe (right greater than left). This was not significantly disabling and did not significantly impair attainment of his milestones. However, over the last month she feels this has worsened and that he has more frequent falls. She does not notice any diurnal variation of this gait or any apparent dystonia.
She also indicates that she has concerns about his speech. She indicates that he said his first words at 12 months and knows approximately 10 words at the present.
However, she feels the words he does know are poorly articulated. He is able to point to some body parts and understands "yes" and "no." He does make good eye contact with family members and others and is variably affectionate. He does not have significant ritualistic behavior or any apparent stereotypes.
She is also concerned about his fine motor and gross motor coordination. She indicates that he is able to throw a ball but remains incoordinated when he attempts to feed himself. He does not always know how to properly hold utensils.
She denies any apparent . . . regression of milestones.
PAST HISTORY
Antenatal: He was born to his mother after a pregnancy complicated by weight loss and gestational diabetes. There is no apparent hypertension, infection, bleeding, drug use or alcohol use.
Birth: He was felt to be born at term and weighed 10 pounds, 7 ounces. His mother reports he did not have any significant immediate perinatal difficulties.
Neonatal: She indicates that he did not have significant jaundice, cyanotic episodes, respiratory distress, or other problems. However, she does indicate that since the newborn period he has had constipation.
Development: Held head up at 2 months, sat alone at 4 months, walked at 13 months, fed himself at 1 year. The remainder of development as per History of Present Illness.
Behavior: He has frequent episodes of crying. He is somewhat shy but is affectionate when he is familiar with people. She does indicate that he does not sleep well at all.
* * * NEUROLOGICAL EXAMINATION
General: Healthy, alert young boy in no apparent distress.
Skull: Occipitofrontal circumference 50 centimeters (75th percentile).
Normocephalic, without evidence of cranial trauma. Fontanel is closed. No boney abnormalities or bruits.
Neck and Spine: Supple, full range of motion, no meningeal signs.
Speech and Language: As per above.
Mental Status: The child was awake, alert. He follows simple commands. He was not fully compliant with language or speech testing, though spontaneous language seemed age appropriate.
* * *
Motor: Tone - Spontaneous observation demonstrates hypotonic posture (i.e.,
exaggerated kyphosis, mild froglegging), also passive range of motion demonstrates reduced tone in a generalized distribution which is mildly greater in truncal musculature.
Power - there is no asymmetry of movement. He moved all extremities appropriately and symmetrically.
Coordination - He was able to hold a ball appropriately and throw it. There is no obvious incoordination.
Cerebellar - No apparent ataxia with spontaneous reaching and hand movements or spontaneous movements of the lower extremities.
Involuntary movements - no obvious tics, tremors, chorea, athetosis or other abnormal movements.
Reflexes: His tendon reflexes were 0 to 1+ at biceps, triceps, radialis, knee jerks, and ankle jerks (reduced in a generalized distribution).
Gait and Stance: Spontaneous observation of his gait demonstrated bilateral in-toeing (right greater than left). His gait was not abnormally wide-based or ataxic. Heel walking and toe walking was appropriate. He was not able to comply with tandem gait.
Sensation: Intact to temperature, light touch and vibration throughout.
* * *
ASSESSMENT
Generalized hypotonia.
Abnormal gait (in-toeing).
Possible developmental articulation difficulties.
Based on the history, I suspect that "Joe" is suffering from mild developmental hypotonia which may be benign in nature.
However, potential causes such as hypothyroidism and inborn errors of metabolism need to be considered.
Furthermore, abnormalities of myelinization should be considered. I am not entirely convinced that his abnormal gait is directly related to his hypotonia. It is possible that he is suffering from tibial torsion or femoral anteversion. Regardless, I do not think his gait is significantly abnormal to warrant orthopedic evaluation. His parents do give a history of significant difficulty with articulation which was difficult to confirm at bedside testing. Regardless, his cognitive and receptive language skills appear to be normal, as do most of his other developmental milestones. It is possible that he has a mild developmental speech disorder. I have discussed the above in detail with his mother and she wishes to proceed as outlined below at my recommendation.
PLAN
Magnetic resonance imaging of the brain with sedation.
Blood work for TSH, amino acids and ammonia.
Urine amino and organic acids.
Physical therapy, occupational therapy and speech therapy.
Return in 1 month.
Over the years, Joe has had multiple consults at the Child Neurology Center, initially with Dr. Livingston and then, beginning in 2003, with Dr. J.B. Renfroe. Those consults
ultimately produced an assessment of static encephalopathy, developmental delay, and initially, cerebral palsy hypotonia and later, autism/pervasive developmental disorder (PDD).2 Over the years, Joe has also undergone multiple studies to identify the etiology of his neurologic deficits, without success. Such studies have included multiple blood and urine studies, including genetic and metabolic analyses, which have been unrevealing; an MRI of the brain on February 5, 2001, which was normal; an MRI of the cervical spine on March 28, 2002, which was normal; electroencephalograms (EEGs) on February 21, 2002, and October 30, 2003, which were normal; and a video EEG on
June 11 and 12, 2002, which demonstrated an abnormal generalized slowing of background activity, consistent with encephalopathy, but nonspecific with regard to etiology, and no epileptiform abnormalities or seizure activity.
On March 24, 2004, following the filing of the claim for compensation, Joe was examined by Michael S. Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, electroencephalography, and child neurophysiology. The results of that evaluation were reported, as follows:
PHYSICAL EXAMINATION reveals an alert, reasonably cooperative, well developed and well nourished 5-year-old boy. Joe weighs
73 pounds and is 47 inches tall. The skin is warm and moist. There are no cutaneous
stigmata. The neck is supple without masses, thyromegaly or adenopathy. There are no cranial or facial anomalies or asymmetries. The head circumference measures 53.1 cm, which is within standard percentiles. The cardiovascular, respiratory and abdominal examinations are unremarkable. There is bilateral pes planus. Peripheral pulses are 2+ and symmetric.
NEUROLOGICAL EXAMINATION reveals a boy with a pleasant disposition, but poor eye contact and diminished social skills. Joe rarely speaks spontaneously. He is dysarthric for lingual and labial sounds. He does know his colors, body parts and pictures of animals. He does not drool. He understands simple commands, but his cooperation is limited.
He is able to build a tower of tubes.
MOTOR EXAMINATION reveals mild generalized hypotonia. Joe is able to use both hands, but prefers the right. He has well- developed pincer grasp and uses his hands bimanually. He exhibits intermittent hand waiving sterotype movements. There are no other adventitious movements and no focal weakness or atrophy. The deep tendon reflexes are 1+ and symmetric. Plantar responses are downgoing. The stance is reasonably based and he walks with symmetric arm swing. He has trouble doing tandem walk and tends to posture his upper extremities. Sensory examination is intact to withdrawal of all extremities to stimulation.
Neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. Joe can perform finger-to-nose and heel-to-shin movements at an age appropriate level.
In SUMMARY, Joe's neurological examination, in detail, reveals evidence of immature social skills, poor eye contact, short attention span, mild generalized hypotonia and delayed speech and language development.
He demonstrates no focal or lateralizing findings. Joe's neurologic findings fit best within the autistic spectrum. Findings from my evaluation together with a review of medical records . . . indicate that Joe does not suffer from a permanent or substantial mental or physical impairment and that his neurologic findings did not result from oxygen deprivation or mechanical injury at birth . . . .
The etiology and significance of Joe's impairments
To address the cause and timing of Joe's impairments, the parties offered, inter alia, medical records related to Mrs. Arellano's antepartum course; those associated with Joe's birth and subsequent development; and the opinions of
Dr. Duchowny and Dr. Donald Willis, a physician board-certified in obstetrics and gynecology, as well as maternal-fetal medicine, regarding the likely etiology and significance of Joe's impairments.
As for the etiology of Joe's impairments, it was Dr. Duchowny's opinion, based on the results of his neurologic evaluation of Joe on March 24, 2004, and review of the medical
records, that, while of unknown etiology, Joe's impairments were most likely developmentally based, and not associated with oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation. In so concluding,
Dr. Duchowny observed that contrary to the clinical evidence one would expect if Joe had suffered a severe hypoxic event or
mechanical injury during labor or delivery, Joe's Apgar scores were normal, his cord blood gases were normal, his neonatal course was normal, his neuro-imaging studies were within normal limits, and his EEGs were normal. As for Dr. Willis, he, like Dr. Duchowny, was of the opinion that the medical records failed to reveal any evidence of neurologic injury having occurred during the course of labor, delivery, or the immediate postdelivery period. In so concluding, Dr. Willis observed that the fetal heart rate was reassuring throughout the course of labor; Joe was reported to be healthy and vigorous at birth, and did not require resuscitation; Joe's Apgar scores were normal, as were his cord blood gases; and Joe's newborn course and subsequent neuro-imaging studies were normal. Finally, the medical records, including the observations of the physicians who have treated Joe, while unrevealing as to etiology, also point to the likelihood of a developmental disorder, as opposed to birth trauma, as the likely cause of Joe's impairments.
As for the significance of Joe's impairments, it was Dr. Duchowny's opinion, based on his neurologic evaluation of Joe and review of the medical records, that Joe does not suffer from a substantial mental or physical impairment. Notably,
Dr. Duchowny's opinion was uncontroverted, grossly consistent with the record, and credible.
Given the record, it must be resolved that Joe's impairments were, more likely than not, occasioned by a developmental abnormality, that preceded the onset of labor, and not by an injury to the brain or a spinal cord occurring in the course of labor, delivery, or resuscitation, and, regardless of the etiology of Joe's impairments, he is not permanently and substantially mentally or physically impaired. See, e.g., Wausau Insurance Company v. Tillman, 765 So. 2d 123, 124 (Fla. 1st DCA 2000)("Because the medical conditions which the claimant alleged had resulted from the workplace incident were not readily observable, he was obliged to present expert medical evidence establishing that causal connection."); Ackley v. General Parcel Service, 646 So. 2d 242 (Fla. 1st DCA 1995)(determining cause of psychiatric illness is essentially a medical question, requiring expert medical evidence); Thomas v. Salvation Army, 562 So. 2d 746, 749 (Fla. 1st DCA 1990)("In evaluating medical evidence a judge of compensation claims may not reject uncontroverted medical testimony without a reasonable
explanation.")
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.
The Florida Birth-Related Neurological Injury Compensation 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. § 766.303(1), Fla. Stat.
The injured infant, her or 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. §§ 766.302(3), 766.303(2), and 766.305(1), Fla. Stat. The Florida Birth- Related Neurological Injury Compensation Association, 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."
§ 766.305(4), Fla. Stat.
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. § 766.305(7), Fla. Stat. 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. §§ 766.304, 766.309, and 766.31, Fla. Stat.
In discharging this responsibility, the administrative law judge must make the following determination 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 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).
Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery 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 postdelivery period in a hospital.
§ 766.309(1), Fla. Stat. 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." § 766.31(1), Fla. Stat.
Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), Florida Statutes, (1999), 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 postdelivery 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.
As the proponent of the issue, the burden rested on Petitioners to demonstrate that Joe suffered a "birth-related neurological injury." § 766.309(1)(a), Fla. Stat. See also Balino v. Department of Health and Rehabilitative Services, 348 So. 2d 349, 350 (Fla. 1st DCA 1997)("[T]he burden of proof, apart from statute, is on the party asserting the affirmative issue before an administrative tribunal.")
Here, the proof failed to support the conclusion that, more likely than not, Joe's neurologic impairment was the result of a brain or spinal cord injury caused by oxygen
deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in the hospital, or that Joe was permanently and substantially mentally and physically impaired. Consequently,
given the provisions of Section 766.302(2), Florida Statutes, Joe does not qualify for coverage under the Plan. See also
§§ 766.309(1) and 766.31(1), Fla. Stat.; Humana of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 5th DCA 1995)("[B]ecause the Plan . . . is a statutory substitute for common law rights and liabilities, it should be strictly constructed to include only those subjects clearly embraced within its terms."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996); Florida Birth-Related Neurological Injury Compensation
Association v. Florida Division of Administrative Hearings, 686 So. 2d 1349 (Fla. 1997)(The Plan is written in the conjunctive and can only be interpreted to require both substantial mental and physical impairment.)
Where, as here, the administrative law judge determines that ". . . the injury alleged is not a birth-related neurological injury . . . she or 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." § 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review.
§ 766.311(1), Fla. Stat.
Cathy Arellano and Eli Joe Arellano, Sr., as parents and natural guardians of Eli Joe Arellano, Jr., a minor, is dismissed with prejudice.
DONE AND ORDERED this 28th day of June, 2005, in Tallahassee, Leon County, Florida.
WILLIAM J. KENDRICK
Filed with the Clerk of the Division of Administrative Hearings this 28th day of June, 2005.
1/ The Apgar scores assigned to Joe are a numerical expression of the condition of a newborn, and reflect the sum points gained on assessment of heart rate, respiratory effort, reflex irritability, muscle tone, and color, with each category being assigned a score ranging from the lowest score of 0 through a maximum score of 2. As noted, at one and five minutes, Joe's Apgar score totaled 9, with heart rate, respiratory effort, reflex irritability, and muscle tone being graded at 2 each, and color being graded at 1.
2/ On September 23, 2003, and October 30, 2003, Joe was seen by Karen M. Hagerott, Ph.D., for a neuropsychological evaluation at the request of Dr. Renfroe, because of concerns that Joe may have evidence of autism or a pervasive developmental disorder.
At the time, Dr. Hagerott doubted that a diagnosis of autism or pervasive developmental disorder was appropriate, but due to Joe's young age could not exclude such a diagnosis. As discussed infra, Dr. Michael Duchowny examined Joe on March 24, 2004, and was of the opinion that Joe's neurologic findings fit best within the autistic spectrum, and Dr. Renfroe, although his initial assessment was cerebral palsy hypotonia, appears to have embraced that assessment (in his note of March 26, 2004).
However, regardless of whether Joe's primary diagnosis is childhood autism or cerebral palsy hypotonia, the etiology of Joe's impairments, as discussed infra, are most likely developmental in origin, and not associated with birth trauma.
Eli Joe Arellano, Sr.
M. Mark Bajalia, Esquire Brennan, Manna & Diamond
Thomas H. Moraczowski, M.D.
Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health
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 the original of a notice of appeal with the Agency Clerk of the Division of Administrative Hearings and a copy, accompanied by filing fees prescribed by law, with the appropriate District Court of Appeal. See Section 766.311, 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.
