Findings Of Fact By stipulation filed January 18, 1994, petitioner and respondent stipulated as follows: That pursuant to Chapter 766.301- 766.316, Fla. Stat., a claim was [filed] on behalf of the above-styled infant against NICA on behalf of JORDAN KYLES, DENISE DESIR (the "Petitioners") for benefits under Chapter 766.301-766.316 Fla. Stat. That a timely filed Claim for benefits complying with the requirements of Section 766.305, Fla. Stat., was filed by the Petitioners and a timely Notice of Non- Compensability Setting forth that NICA denied the claim was filed on behalf of NICA. That the infant, JORDAN KYLES was born at Mercy Hospital on November 1, 1990, and Mercy Hospital was a licensed Florida Hospital and the attending physician, Dr. Luis G. Martinez, was a participating physician within the meaning of Chapter 766, Fla. Stat. The Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim. Section 766.302(2), Fla. Stat. states that a "birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2500 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. The parties agree that JORDAN KYLES suffers from a left brachial plexus palsy injury. A brachial plexus palsy injury is not an injury to the brain or spinal cord and further does not result in any mental injury. The parties stipulate to the authenticity of the medical records and/or medical reports of Michael Duchowny, M.D., including in particular his report dated September 2, 1993. A copy of this report has been attached hereto and incorporated herein as Exhibit 1. The parties stipulate that there are no other pertinent medical facts to be considered by the Division of Administrative Hearings. The parties further stipulate that if the parties were to proceed to a hearing on the merits no further proof would be offered and traditional burdens of proof would apply. Based upon the stipulation, the parties request the hearing officer rule on Petitioners' claim based upon this Stipulation, and the attached medical record. The stipulation and neurological examination of Jordan reveal that he suffered a left brachial plexus palsy injury, and that a brachial plexus palsy injury is not a brain or spinal cord injury and further, does not result in mental injury. Moreover, Jordan's mental functioning is age appropriate and not impaired due to any birth related complications.
