STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PAMELA LYNETTE JOHNSON on

behalf of and as parent and natural guardian of DAKAR'I OSHEA WILLIAMS, a minor,

Petitioner,

vs.

FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION,

Respondent.

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) Case No. 04-2658N

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FINAL ORDER

With the parties' agreement, this case was heard on an agreed record.

STATEMENT OF THE ISSUE

At issue is whether Dakar'i Oshea Williams (Dakar'i), a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan.

PRELIMINARY STATEMENT

On July 27, 2004, Pamela Lynette Johnson, on behalf of and as the parent and natural guardian of Dakar'i Oshea Williams (Dakar'i), a minor, filed a petition (claim) with the Division of Administrative Hearings (DOAH) for compensation under the

Florida Birth-Related Neurological Injury Compensation Plan (Plan).

DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on

July 28, 2004, and on October 21, 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 Dakar'i did not suffer a "birth-related neurological injury," as defined by Section 766.302(2), Florida Statutes, and requested that a hearing be scheduled to resolve whether the claim was compensable.

By Notice of Hearing dated November 9, 2004, a hearing was scheduled for February 14, 2005, to resolve whether the claim was compensable; however, on January 27, 2005, the parties filed a Joint Motion to Submit Stipulated Factual Record and Written Agreement in Lieu of Contested Hearing, wherein they agreed "to submit a stipulation record of the evidence that would be presented at the final hearing," and requested that the hearing scheduled for February 14, 2005, be cancelled. The parties' motion was approved by Order of January 28, 2005, and the hearing scheduled for February 14, 2005, was cancelled. The Order also provided that the parties file their stipulated record, as well as any written argument, on or before February 14, 2005.

The parties filed their Stipulated Record on February 14, 2005, as well as Petitioner's Written Argument and proposed Final Order and Respondent's proposed Final Order. The parties' submittals have been duly considered.

FINDINGS OF FACT

Undisputed facts1

1. Pamela Lynette Johnson is the natural parent and guardian of Dakar'i Oshea Williams, a minor. Dakar'i was born a live infant on September 18, 1999, at Florida Hospital, a hospital located in Orlando, Florida, and his birth weight exceeded 2,500 grams.

2. The physician providing obstetrical services at Dakar'i's birth was Cordell Mitchell, 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

3. 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 . . . 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 and 766.31, Fla. Stat.

4. Here, the parties' Stipulated Record demonstrates that Dakar'i is permanently and substantially mentally impaired. However, physically, Dakar'i was not similarly affected or, stated otherwise, he is not substantially physically impaired, much less permanently and substantially physically impaired. Consequently, for reasons appearing more fully in the Conclusions

   of Law, the claim is not compensable, and it is unnecessary to resolve whether Dakar'i's impairments resulted from a brain injury caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation, or whether his impairments are attributable to another etiology.

   CONCLUSIONS OF LAW

5. The Division of Administrative Hearings has jurisdiction over the parties to, and the subject matter of, these proceedings. § 766.301, et seq., Fla. Stat.

6. 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.

7. 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), 766.305(1), and 766.313, 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(3), Fla. Stat.

8. 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(6), 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.

9. 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.

      
      

      § 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.

10. Pertinent to this case, "birth-related neurological injury" is defined by Section 766.302(2), 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.

    
    

11. Here, while the proof demonstrated that Dakar'i was permanently and substantially mentally impaired, it also demonstrated that he was not permanently and substantially physically impaired. Consequently, given the provisions of Section 766.302(2), Florida Statutes, Dakar'i does not qualify for coverage under the Plan. See also 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.); Humana

    of Florida, Inc. v. McKaughan, 652 So. 2d 852, 859 (Fla. 2d DCA 1995)("[B]ecause 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."), approved, Florida Birth-Related Neurological Injury Compensation Association v. McKaughan, 668 So. 2d 974, 979 (Fla. 1996).

12. 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."

§ 766.309(2), Fla. Stat. Such an order constitutes final agency action subject to appellate court review. § 766.311(1), Fla.

Stat.

CONCLUSION

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

ORDERED that the claim for compensation filed by

Pamela Lynette Johnson, on behalf of and as parent and natural guardian of Dakar'i Oshea Williams, a minor, is dismissed with prejudice.

DONE AND ORDERED this 16th day of February, 2005, 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

(850) 488-9675 SUNCOM 278-9675

Fax Filing (850) 921-6847 www.doah.state.fl.us

Filed with the Clerk of the Division of Administrative Hearings this 16th day of February, 2005.

ENDNOTE

1/ Stipulated Record, Exhibit 8; Petitioner's proposed Final Order, paragraphs 1 and 2; and Respondent's proposed Final Order, paragraphs 1 and 2.

COPIES FURNISHED:

(By certified mail)

David R. Best, Esquire Best & Anderson, P.A. 1201 East Robinson Street Orlando, Florida 32801

M. Mark Bajalia, Esquire

Volpe, Bajalia, Wickes, Rogerson & Galloway

Riverplace Tower, Suite 1700 1301 Riverplace Boulevard

Jacksonville, Florida 32207

Kenney Shipley, Executive Director Florida Birth Related Neurological

Injury Compensation Association 1435 Piedmont Drive, East, Suite 101

Tallahassee, Florida 32308

Cordell Mitchell, M.D.

974 Douglas Avenue, Suite 102 Altamonte Springs, Florida 32714

Florida Hospital South 601 East Rollins Street Orlando, Florida 32803

Charlene Willoughby, Director Consumer Services Unit - Enforcement Department of Health

4052 Bald Cypress Way, Bin C-75 Tallahassee, Florida 32399-3275

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 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.

Docket for Case No: 04-002658N

Orders for Case No: 04-002658N