The Issue Whether or not Hewey Clemmons, the spouse of Petitioner, Anne Clemmons, died "in-line-of-duty" as defined in Section 121.021(14), F.S., so as to qualify Petitioner for the death benefits provided in Section 121.091(7), F.S.
Findings Of Fact At all times material, Hewey Clemmons and Petitioner Anne Clemmons were man and wife. At all times material, Hewey Clemmons was employed as a correctional officer at Calhoun Correctional Institution on a regular duty shift. September 30, 1990 was a very hot day, with the personnel in the yard perspiring. That day, immediately preceding lunch, Inmate Warren Miller ran down the sidewalk toward the chow hall. Running is a violation of behavior for inmates at Calhoun Correctional Institution. Officer Clemmons stopped Inmate Miller. At that time, Inmate Miller raised his hands up and down, arguing with Officer Clemmons. This incident was passed over for resolution until after the meal and subsequent head count. Inmate Miller was a renowned and repetitive discipline problem, had a long disciplinary record, and was known as a "bad inmate." Although his usual behavior was more in the nature of disrespect and sarcasm rather than verbal threats, other correctional officers had had to use force on Miller several times prior to September 30, 1990. He was viewed by some of them as perennially hostile, argumentative, and possessed of an "attitude." At least one correctional officer at Calhoun Correctional Institution had felt compelled to administer mace to Miller on a prior occasion due to his behavior. After lunch and head count on September 30, 1990, at approximately 11:55 a.m. CST, Officer Clemmons proceeded to the dormitory to retrieve Miller in connection with the morning's running incident. He guided Miller into the laundry room and instructed him to turn around so that Clemmons could handcuff him. All correctional officers deposed that handcuffing under the foregoing circumstances was prudent and standard operating procedure and that Officer Clemmons was a "by the book" officer. Inmate Miller began arguing with Officer Clemmons and pushed, slapped, or otherwise struck Officer Clemmons' hand so as to break Clemmons' grip on Miller while Clemmons was attempting to handcuff him. Miller continued to refuse to be handcuffed by Clemmons, and an oral argument ensued in which Clemmons and Miller were loud and angry. Officer Lockett observed the foregoing altercation and intervened to settle things down. He talked Miller into allowing Clemmons to handcuff him and lead him away. He observed that Clemmons was angry and upset by the incident. Later, Miller was presented by Clemmons at the Lieutenant's office and officers there observed Clemmons to be angry and upset. Officer Branaman testified that in the entire time he had worked with Clemmons, he had never witnessed Clemmons as upset as he was at the time he observed him that day. Miller was escorted to the infirmary for pre-confinement medical screening. Sometime thereafter Officer Branaman observed Clemmons walking moodily outside in the yard near the internal gate. After a brief radio conversation with a superior officer, Adams, Officer Clemmons entered the internal gate in the yard and, after only a few steps, collapsed on the sidewalk. Correctional facility personnel responded with due haste, and despite valiant efforts by internal health care professionals and the Liberty County EMT team that eventually responded, Clemmons never revived. He was pronounced dead at the Calhoun County Hospital. Neither party's proposals has alluded to the fact that the materials submitted include two death certificates with different times of death and that the times related in many reports vary considerably, but having eliminated uncorroborated hearsay, having accounted for the Liberty County ambulance service personnel operating on eastern time and the correctional facility and hospital operating on central time, and having reconciled all the deposition testimony as much as possible without imputing falsehood to any witness, it is found that Officer Clemmons died at the scene at approximately 12:35 p.m. CST. Officer Clemmons' widow was denied death in-line-of-duty benefits on the basis of Officer Clemmons' pre-employment physical and the death certificate to the exclusion of all other matters, including a letter of voluntary acceptance of responsibility for the payment of death benefits sent by the state's workers' compensation administrator, the Florida Department of Insurance, Division of Risk Management (P-1 to Stanley Colvin's deposition). Officer Clemmons' pre-employment physical, performed on November 13, 1989, included an electrocardiogram which showed "sinus rhythm, premature systoles, ventricular borderline low qrs voltage, report must be correlated with clinical data by a physician, borderline for age 51." The examining physician noted in his records that Officer Clemmons had "premature ventricular contractions, borderline ekg, 1+ albumin in urine; advised to see cardiologist about pvc's." Nonetheless, the agency, knowing the results of Clemmons' pre- employment physical and that he would be called upon to deal regularly with violent and abusive inmates still chose to employ Clemmons beginning in December, 1989. Prior to his death, Clemmons' fellow correctional officers and superior viewed him as healthy and in "tip-top shape." He had served as a correctional officer at the Calhoun Correctional Institution without any health problems from December 1989 until his death, a total of ten months. The instructions on Clemmons' death certificate required the physician pronouncing death to state "IMMEDIATE CAUSE (final disease or condition resulting in death)" on the first line, and thereafter to "sequentially list conditions, if any, leading to immediate cause. Enter UNDERLYING CAUSE (Disease or injury that initiated events resulting in death) LAST." On the line of Clemmons' death certificate requiring the physician pronouncing death to list the "immediate cause of death," the pronouncing physician listed "cardiac arrest." On the first line of Clemmons' death certificate requiring the physician pronouncing death to fill in "due to or as a consequence of" the pronouncing physician listed "ASCAD" (a misnomer probably signifying "atherosclerotic heart disease"). Nothing more has been inserted on the remaining lines providing for sequentially listing conditions. However, the physician who pronounced death did not testify at formal hearing nor did the physician who performed the pre-employment physical. Dr. Lawrence J. Kanter, a board certified cardiologist and the only medical expert to testify in this cause, reviewed Officer Clemmons' pre- employment physical with EKG, the depositions of the witnesses present on September 30, 1990, the death certificate, and all relevant medical reports. With regard to the death certificate, Dr. Kanter testified that without the benefit of previous examination or an autopsy, neither he nor the physician pronouncing death could properly make any diagnosis of preexisting atherosclerotic disease. With regard to the pre-employment physical and EKG printout, he opined that all that was clear therefrom was that on the day of the pre-employment physical, Officer Clemmons had had slightly elevated blood pressure and an EKG which was not abnormal for a person his age. Dr. Kanter also noted that one may have some mild problem or may even have atherosclerosis and still may not have any significant clinical heart disease. He stated that while atherosclerosis can result in a plaque rupture from changes in blood pressure brought about by emotional stress followed by the blood vessels occluding and thus a sudden heart attack or stroke, the ventricular fibrillation (chaotic beating of the heart so that it is unable to support life) which Officer Clemmons suffered also could result from other stress-induced factors. Dr. Kanter rendered his opinion within a reasonable degree of medical probability that the cause of Officer Clemmons' death was sudden cardiac death because Officer Clemmons never had ventricular fibrillation or a blackout or syncopal episode before, was evaluated by physicians and no heart disease was documented to any certainty, and he had severe emotional distress which was totally out of character to his normal way of functioning. Upon cross- examination, Dr. Kanter indicated that although "anything is possible, the temporal relationship within minutes of a severe emotional stress makes it inconceivable to consider anything else except something that's of the outer realm of possibility." Dr. Kanter considered it important in forming his opinion that Officer Clemmons had died as the result of a stress-induced cardiac death that Officer Clemmons had evidenced no marked symptomatology for at least ten months, suffered a significant emotional trauma, was extremely upset, and within moments of being upset had a cardiac arrest and was not resuscitated. Respondent attacked the weight and credibility of Dr. Kanter's opinion that the emotional trauma of the altercation with Inmate Miller triggered Officer Clemmons' sudden cardiac death because of the physician's expressed belief that Officer Clemmons' collapse came "within moments" of the traumatic confrontation and the record as a whole shows that the time lapse was 40 minutes, but there is absolutely nothing to show how few moments Dr. Kanter meant or that he did not mean 40 minutes. It is also noteworthy that Dr. Kanter also stated that his opinion was partly based on the fact that Clemmons' collapse occurred "within five minutes of the marked change in affect," referring to Clemmons' walking moodily in the outside yard, not in referring to the angry and upset condition Officer Clemmons evidenced immediately after the precipitating physical episode in the dormitory. Upon the only credible, competent medical evidence, it appears that whether Officer Clemmons died from atherosclerosis aggravated by emotional stress producing cardiac death or simply died an instantaneous cardiac death without pre-existing atherosclerosis and/or heart disease, the precipitating cause of death was his emotional reaction to acute stress following the altercation with Inmate Miller.
Recommendation Upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Division of Retirement enter a Final Order finding that Correctional Officer Clemmons suffered death in-the-line-of-duty and awarding his survivors the appropriate benefits commensurate therewith. DONE and ENTERED this 25th day of August, 1992, at Tallahassee, Florida. ELLA JANE P. DAVIS, Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 25th day of August, 1992.
Findings Of Fact Myrtis Brown Harris is a registered nurse and has been so registered for some 30 years. She also holds a master's degree from Florida State University and a Rank II teaching certificate. In February 1982 while Respondent was working as a registered nurse at St. Jude Nursing Home in Jacksonville, Florida, her supervisor received information from aides that Respondent was giving oxygen to a deceased patient. Upon arriving in the room the supervisor observed Respondent administering oxygen to the patient who was, in fact, dead. The supervisor testified that she asked Respondent how long the patient had been dead and why she was giving oxygen, and Respondent replied the patient had been dead for about an hour but he looked like he needed a little oxygen. Respondent, on the other hand, testified that when she came on duty that evening, after inventorying narcotics, she commenced her rounds of the 56 patients under her care, starting with those on life-support systems. When she arrived at this particular room, the patient was in a sitting position with his bed up and was cyanotic. She checked his pulse, found he had none, brought in oxygen equipment, and attempted to resuscitate the patient. She denied saying the patient had been dead for an hour and considered her actions proper in the emergency situation she encountered. Standard procedure at St. Jude Nursing Home is for the supervising nurse to be called if a patient dies. Respondent, on this occasion, did not notify the supervisor. When asked why she had not called the supervisor, the supervisor testified Respondent told her she was too busy to call her. Respondent testified that the supervisor had 45 patients to administer and she did not want to bother her unless help was needed. This witness was Respondent's supervisor for a short period of about one month and testified that she had observed Respondent when Respondent appeared to be unaware of her surroundings. Specifically, she recalled Respondent's going down the corridor of the nursing home with one finger in the air, turning occasionally, and talking, apparently to the walls. Respondent testified that she had adopted the mannerism of holding one finger in the air to symbolize "There must be one person around here who knows what's right from what's wrong." Other incidents described by the supervisor were from what she had been told by others and not what she had personally observed. This hearsay evidence was not used as the basis for any findings. Respondent took the stand and testified at length about some of her difficulties. She suffers from a persecution complex which detracts from her usefulness as a junior college teacher, which she used to be, and as a nurse. She had brought discrimination actions against former employers and believes authorities, such as police, are infringing on her rights and that her potential employers who don't hire her are discriminating against her in violation of the Equal Employment Opportunities Act. On the other hand Respondent is well educated and articulate. No evidence was presented that any of Respondent's actions caused harm or potential harm to her patients. Respondent testified she visited a psychiatrist after leaving St. Jude Nursing Home and was told she should get another job. Respondent states she filed an EEOC complaint in 1966 against Brewster (now Methodist) Hospital and feels she has been retaliated against since that time. In 1977 during a CBS- sponsored call-in to the White House Respondent called to complain that she was being retaliated against. She sends complaints to federal judges, FBI, police, customs and others. Recently she mailed "all over" Jacksonville copies of the Ten Commandments she had reproduced. Respondent further testified she has received psychiatric evaluations in 1974, 1979, and 1982 from doctors Lasorda, Orea, and Burdesque, respectively, but was unable to get copies of their reports.
Findings Of Fact On April 24, 1992, Respondent issued a Request for Proposals for the provision of housekeeping services at South Florida State Hospital. The responses to the RFP were due June 5, 1992. A bidder's conference was scheduled for May 15, 1992. On page 21 of the RFP, the bidders are advised, in pertinent part, as follows: ... each proposal must contain a line item budget with detailed narrative justification for each expenditure category. A separate budget must be completed for each contract period ... The statement contained on page 21 of the RFP was repeated on page 31 of the RFP. Pages 70-72 of the RFP contained the RFP Rating Sheet to be used by Respondent's evaluation committee. Bidders are clearly notified that these criteria are considered to be "fatal items" and are advised: The following criteria must be met for the proposal to be considered for evaluation, failure to receive a "Yes" response for any [item] will result in automatic rejection of the proposal. (Emphasis in the original.) Listed as "fatal item" numbered 8 on page 71 of the RFP is the following: Does the proposal contain completed charts (page 11 through 14) and line item budgets for each contract period? Petitioner timely submitted a bid in response to the RFP. Petitioner had bid on prior contracts that Respondent had procured through the competitive bid process and was, at the time of the issuance of the RFP, the contract provider of the housekeeping services at South Florida State Hospital. Petitioner contends that its response to another item should be construed as an appropriate response to the requirements pertaining to line item budgets. This contention is without factual basis and is rejected. The bid submitted by Petitioner in response to the RFP did not contain a line item budget. Respondent's evaluation committee disqualified Petitioner's bid because it did not contain a line item budget as required by the RFP. On May 15, 1992, Respondent held a bidder's conference at which bidders were given the opportunity to ask questions about the bid requirements and specifications prior to the submission of bids. Petitioner was represented at the bidder's conference by Ritter Von Massenbach, who took notes at the meeting and who paid close attention to the discussion pertaining to fatal items. The minutes of the bidder's conference reflect that the bidders were told that a bid that failed to comply with a fatal item requirement would be disqualified. There were questions and answers as to how the bidders could meet the bid requirements pertaining to line item budgets and a specific discussion, with examples, as to what information Respondent expected to be contained in a line item budget. Mr. Massenbach was not instructed to ask about the line item budget requirement, nor did he do so. Mr. Massenbach reported to Andy Kontos, Petitioner's senior vice president, by telephone following the bidder's conference, but there was no discussion as to the line item budget requirement. Thereafter, Mr. Kontos prepared the bid that was submitted by Petitioner. An addendum to the bid along with the minutes of the Bidder's Conference was mailed to all bidders, including to Petitioner at the business address it had given Respondent, by certified mail, return receipt requested. This certified mailing was unclaimed by Petitioner and subsequently returned to Respondent on July 14, 1992, as being "unclaimed." The mailing envelope reflects that the package was postmarked on May 29, 1992, and that attempts at delivery were made on June 1, 1992, June 8, 1992, and June 16, 1992. Bids in response to the RFP were due June 5, 1992. The addendum did not pertain to or change in any material manner the fatal item requirement for a line item budget. Petitioner's contention that specific information as to what Respondent intended by the term "line item budget" was unclear and should have been included in an addendum is unsupported by the evidence and is, consequently, rejected. There was no evidence that Respondent was using the subject fatal item requirement to discriminate against or in favor of any proposer. Petitioner failed to establish that its failure to comply with the subject fatal item requirement was attributable to Respondent.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that a Final Order be entered which dismisses the bid protest filed by Petitioner. DONE AND ORDERED this 8th day of October, 1992, in Tallahassee, Leon County, Florida. CLAUDE B. ARRINGTON Hearing Officer Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-1550 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 8th day of October, 1992. APPENDIX TO THE RECOMMENDED ORDER IN CASE NO. 92-4312BID The only post-hearing submittal filed by Petitioner is in the form of a letter addressed to the Hearing Officer. That letter contains argument, but not proposed findings of fact. The following rulings are made on the proposed findings of fact submitted on behalf of the Respondent. The proposed findings of fact in paragraphs 1, 2, 3, 5, 6, 7, and 8 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraph 4 are adopted in part by the Recommended Order. The proposed findings of fact in paragraph 4 pertaining to the reasons Mr. Massenbach paid attention to the fatal items discussion are rejected as being unnecessary to the conclusions reached. The following rulings are made on the proposed findings of fact submitted on behalf of the Intervenor. The proposed findings of fact in paragraphs 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, 12, 13, 14, 15, 16, 17, 19, 21, 22, 23, 27, 28, 29, 30, 32, 33, and 34 are adopted in material part by the Recommended Order. The proposed findings of fact in paragraphs 10, 18, 25, 26, 31, 35, 36, 37, 38, 40, and 42 are rejected as being subordinate to the findings made. The proposed findings of fact in paragraph 20 are rejected as being unsubstantiated by the evidence. There was no evidence as to what was "made clear" to each bidder. The proposed findings of fact in paragraph 24 are rejected as being unnecessary to the conclusions reached since there is no contention on the part of Petitioner that it was prevented from making inquiry. The proposed findings of fact in paragraphs 39 and 41 are rejected as being argument. COPIES FURNISHED: Rey J. Nieto, President Andy Kontos, Vice President Allstate Specialty Services, Inc. 371 West 21st Street Hialeah, Florida 33010 Colleen A. Donahue, Esquire Department of Health and Rehabilitative Services District 10 Legal Office Room 513 201 West Broward Boulevard Fort Lauderdale, Florida 33301-1885 Stephen G. Murty, Esquire Jay R. Tome, Esquire Murty and Tome, P.A. 777 Brickell Avenue Miami, Florida 33131 Sam Power, Agency Clerk Department of Health and Rehabilitative Services 1323 Winewood Boulevard Tallahassee, Florida 32399-0700
Findings Of Fact On July 13, 2011, a "Petition Under Protest" styled "Milvia Najera and Marvin Chavarria, on behalf of and as parents and natural guardians of Marvin Chavarria, a minor v. Florida Birth-Related Neurological Injury Compensation Association," was filed with the Division of Administrative Hearings (DOAH). Pertinent to the pending motions are the allegations of paragraphs 3, 4, 5, 6, and 7 of the petition: * * * Name and Address of Physician The physicians providing obstetrical services who were present at the birth are Resident Lucia Gaitan, M.D. and Attending Samir N. Beydoun, M.D. . . . Description of Disability It is alleged that Marvin Chavarria currently suffers from developmental delay. Time and Place of Birth Jackson Memorial Hospital,[2/] 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Time and Place of Injury Jackson Memorial Hospital, 1611 N.W. 12th Avenue, Miami, FL 33136 on February 5, 2005. Statement of the Facts This claim is not compensable under NICA as Marvin Chavarria's injury does not meet the definition of a birth-related neurological injury as defined in Florida Statute 766.302(2). The reasons for non- compensability are as follows: The child does not have substantial physical and mental impairments as defined by Florida Statutes 766.302(2). * * * The Petition does not allege a lack of notice by the healthcare providers.3/ DOAH served the Florida Birth-Related Neurological Injury Compensation Association (NICA) with a copy of the claim on July 5, 2011; served Dr. Beydoun and Jackson Memorial Hospital, respectively, on July 16, 2011; and served Dr. Gaitan on or about July 21, 2011. Upon appropriate petition and an August 16, 2011 Order, Samir Beydoun, M.D., was granted Intervenor status. On October 13, 2011, after one extension of time in which to do so, NICA filed its response required by section 766.305(4), titled "Notice of Non-Compensability and Request for Evidentiary Hearing." On October 24, 2011, Respondent NICA filed its Motion for Summary Final Order, with supporting affidavits. The thrust of Respondent's motion is that the petition for benefits was filed with DOAH on July 13, 2011, which is more than five years past the birth of the child, Marvin Chavarria, who was born on February 5, 2005. The motion states, "Accordingly, the claim is barred as a matter of law, and cannot qualify for an Award under the NICA Plan. . . . Notwithstanding, the issue of compensability must be addressed." Respondent also submitted, with its Motion for Summary Final Order, two medical affidavits to the effect that the claim is not compensable. On October 24, 2011, Petitioners filed a Notice of Joinder in Respondent's Motion for Summary Final Order. On October 27, 2011, Intervenor Samir Beydoun, M.D., filed a Response in Opposition to Respondent's Motion for Summary Final Order. On October 26, 2011, Intervenor Samir Beydoun, M.D., also filed a Motion for Summary Final Order, asserting that the Administrative Law Judge has jurisdiction to enter a summary final order solely determining that Petitioners' claim is barred by section 766.313, the statute of limitations for NICA claims. On October 28, 2011, Petitioners filed a Response and Objection to Intervenor's [Beydoun's] Motion for Summary Final Order, to which Response and Objection, Intervenor Beydoun filed an unauthorized Reply, on November 8, 2011. By Order of November 18, 2011, a pending Petition to Intervene, filed on October 24, 2011, by Public Health Trust of Miami was granted,4/ and, in an abundance of caution, this new Intervenor was given until November 30, 2011, to file a response to the two pending motions for summary final order. Public Health Trust of Miami filed no timely response(s), but joined in Dr. Beydoun's Motion by an untimely and unauthorized "Notice of Joinder" filed December 13, 2011; a Response Opposing [NICA's] Motion for Summary Final Order, filed December 13, 2011; and an "Amended" Motion for Summary Final Order filed December 14, 2011. All of the pleadings have been considered. NICA's Motion for Summary Final Order alleged that the claim against NICA is barred by the statute of limitations for NICA claims.5/ The birth certificate, which was filed with the Petition, confirms Marvin's date of birth as alleged in the Petition as February 5, 2005. No party has asserted otherwise. There also is no dispute that the Petition (claim) was filed on July 13, 2011. Therefore, there can be no reasonable debate that the NICA claim was filed more than five years beyond Marvin's birth date, and so, the claim is barred as a matter of law, and cannot qualify for an award under the NICA Plan. NICA's Motion for Summary Final Order further alleged that Marvin's claim is not compensable because he did not suffer a "birth-related neurological injury" as defined in section 766.302(2), first, because there was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord during labor, delivery, or the immediate postdelivery period, and secondly, because Marvin does not suffer from a substantial motor (physical) impairment, both of which are elements of the definition of a compensable injury, at section 766.302(2). (See Conclusion of Law 32). Attached to NICA's Motion for Summary Final Order was an affidavit by Donald C. Willis, M.D., a board-certified obstetrician with special competence in maternal-fetal medicine. Dr. Willis rendered the following opinion within a reasonable degree of medical probability: * * * In summary, baby was delivered with some mild respiratory distress that required bag and mask ventilation for about 30 seconds. Arterial blood gas was normal. The respiratory distress resolved without the need for intubation or mechanical ventilation. A tight Nuchal cord was present at birth, but did not result in oxygen deprivation. There was no apparent obstetrical event that resulted in loss of oxygen or mechanical trauma to the baby's brain during labor, delivery or the immediate post delivery period. As such, it is my opinion that there was no oxygen deprivation or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post- delivery [sic] in the Hospital that resulted in loss of oxygen or mechanical trauma to the baby's brain or spinal cord. Accordingly, there was no causal event which would have rendered MARVIN CHAVARRIA permanently and substantially mentally and physically impaired as a result of same. (emphasis added). Also attached to NICA's Motion for Summary Final Order was the affidavit of Michael S. Duchowny, M.D., a board- certified pediatric neurologist, who rendered the following opinion within a reasonable degree of medical probability: * * * The Florida Birth-Related Neurological Injury Compensation Association retained me as its expert in pediatric neurology in the above-styled matter to examine the minor child, MARVIN CHAVARRIA, and review the medical records from both MARVIN CHAVARRIA and his mother, MILVIA NOTERA. [sic] The purpose of my review of the medical records and evaluation of MARVIN CHAVARRIA was to determine whether he suffers from an injury which rendered him permanently and substantially mentally and physically impaired, and whether such injury is consistent with an injury caused by oxygen deprivation or mechanical injury occurring during the course of labor, delivery, or the immediate post-delivery period in the hospital. I evaluated MARVIN CHAVARRIA on October 5, 2011. A true and accurate copy of my Evaluation and Opinion is attached hereto as Exhibit 1. . . . My Opinion is reflected in my Report and is as follows: In SUMMARY, Marvin's neurological examination today reveals findings consistent with autism and pervasive developmental disorder (PDD). He has severe social and behavioral problems and also manifests expressive language delay, generalized hypotonia and has a history of a sleep disorder. There are no focal or lateralizing findings noted. I reviewed medical records that were sent on August 16, 2011. The records do not contain information that points to either an hypoxic event or mechanical injury in the course of labor or delivery. Marvin was born at term at Jackson Memorial Hospital and had Apgar scores of 9, 9 and 9 at 1, 5 and 10 minutes. Although he did have a tight nuchal cord, it was removed immediately. The postnatal course was unremarkable. Marvin's diagnostic studies further confirm that his neurological disabilities are developmentally based and likely the result of problems in brain maturation which began in utero. The physical examination today provides additional confirmation that Marvin does not suffer from a substantial motor impairment. For the above reasons, I do not believe that Marvin should be considered for compensation under the NICA statute. [6/] (emphasis added). Intervenor Beydoun's Response to NICA's Motion for Summary Final Order urges the granting of NICA's motion to the extent the claim is barred by the statute of limitations, but also urges denial of NICA's motion "because the ALJ cannot reach the question of compensability where, as here, the claim is barred by the statute of limitations.7/ Intervenor Beydoun has also filed a Motion for Summary Final Order asserting the same arguments in favor of dismissal under the statute of limitations and against dismissal upon grounds of non-compensability, because, he argues, once the statute has run, the Administrative Law Judge is without jurisdiction to determine either compensability or notice. Intervenor Public Health Trust has joined in Dr. Beydoun's Motion for Summary Final Order, and filed a Response to Motion for Summary Judgment and an Amended [sic] Motion for Summary Final Order.8/ Petitioners joined in NICA's Motion for Summary Final Order and oppose Intervenor Beydoun's Motion for Summary Final Order. It may be assumed they also oppose the Public Health Trust's late-filed items. Despite both Intervenors' opposition upon the issue of the Administrative Law Judge's jurisdiction to enter a summary final order regarding compensability where the statute of limitations for the filing of a NICA claim has run, no one has posed a challenge concerning the sufficiency of NICA's Motion for Summary Final Order's factual allegations or supporting affidavits. Given the record and the medical affidavits, there is no genuine issue of material fact that Marvin, the child named in the Petition, did not suffer a birth-related neurological injury as defined in section 766.302(2). Accordingly, NICA's Motion for Summary Final Order is, for reasons appearing more fully in the Conclusions of Law, well- founded.9/
Findings Of Fact This case is an action for in-line-of-duty death benefits brought pursuant to Sections 120.57, 121.021(14), and 121.091(7), Florida Statutes. Carolyn W. Walker was the legal wife and is now the widow of Ronnie D. Walker, deceased. Carolyn W. Walker is the natural mother and legal guardian of Melanie L. Walker, age 9; Ronnie D. Walker, Jr., age 5; and Jason W. Walker, age 6 months; the minor children of Ronnie D. Walker, deceased. At the time of his death on December 4, 1976, and for the previous six years, Ronnie D. Walker was employed as a sergeant and deputy sheriff for the Leon County Sheriff's Department. Sgt. Walker was killed in an automobile/tank truck collision at the intersection of Woodville Highway and Oakridge Drive, Leon County, Florida. The location of the accident in which Sgt. Walker was killed was less than one mile from his residence on Oakridge Drive. Based upon the time his shift terminated and the location of the accident, Sgt. Walker had chosen the most direct route from the Leon County Jail to his residence. At the time of his death, Sgt. Walker was in full uniform and was armed. Sgt. Walker was a member of the Florida Retirement System at the time of his death and was entitled to the benefits provided for in Chapter 121, Florida Statutes. Carolyn W. Walker was the designated beneficiary of Ronnie D. Walker for death benefits payable under the provisions of Chapter 121, Florida Statutes. Subsequent to the death of her husband, Carolyn Walker made application to the Division of Retirement for in-line-of-duty death benefits, pursuant to Section 121.091(7)(c), Florida Statutes. All information, data and documentation required by the Division of Retirement was furnished by either Mrs. Walker or her attorneys. Deputies of the Leon County Sheriff's Department work a tour of duty known as a shift. The work day for the Leon County Sheriff's Department was at the time in question in this case divided into three shifts; 7:00 a.m. - 3:00 p.m., 3:00 p.m. - 11:00 p.m., 11:00 p.m. - 7:00 a.m. The deputies worked different shifts on a rotating basis, the times changing on a 28-day cycle. Sgt. Ronnie Walker worked the 11:00 p.m. - 7:00 a.m. shift on the evening of December 3, 1976 and morning of December 4, 1976. Sgt. Walker was the acting shift commander during this particular shift due to the absence of Lt. Ron Koenig, the regular shift commander. Therefore, in addition to his duties as a field deputy, Sgt. Walker assumed a supervisory role with responsibility for efficient operation of the evening shift on the tour of duty preceding his death. As part of his normal and routine duties, a shift commander or his replacement is responsible for initiating investigations of more serious incidents during his shift. It is not unusual for a shift commander's involvement in such investigations to extend well beyond the termination of the normal tour of duty, to include providing additional information needed as the investigation by the Sheriff's Department is continued. However, the responsibility for making routine investigations passes from the shift commander on duty when he is relieved by the oncoming shift commander. A shift ends when the shift commander checks in the field deputies from their patrol assignments and clears them from the Leon County. Once the field deputies have been cleared and relieved the shift commander is relieved. Deputies below the rank of shift commander, to include Sgt. Walker, were not assigned a sheriff's patrol car 24 hours a day. All shift commanders and above were assigned an official vehicle which they were required to use and have available at all times. Although the Leon County Sheriff at the time would have preferred to provide field deputies with patrol cars, field deputies had to furnish their own transportation to and from work due to lack of money. Field deputies would pick up their official vehicles at the Leon County Jail at the commencement of their tour of duty. Sgt. Walker, as deputy shift commander, was required to provide his own transportation to and from work, and at the time of his fatal accident was driving his personal vehicle. At the time of his death and for the preceding several years, Sgt. Walker and other deputies of the Leon County Sheriff's Department had been required by their employer, the sheriff of Leon County, to work many overtime hours in addition to the hours of their regularly scheduled formalized shifts. These additional hours of work were required by the sheriff due to the lack of money in the sheriff's budget to employ additional deputies. Neither Sgt. Walker nor the other deputies of the Leon County Sheriff's Department received regular compensatory pay or compensatory leave for these additional hours of work which they were required to perform. At the time of his death, having been cleared of his regular shift duties, Sgt. Walker was subject to performance of the following duties prescribed and required by his employer the sheriff of Leon County: Walker was required to be available by telephone 24 hours a day except when on leave. If Walker was not at his residence, he was required to advise the Leon County Sheriff's Office of a telephone number in which he could be reached. Sgt. Walker was required to enforce the laws of the State of Florida at all times with the exception established by the sheriff of Leon County that minor infractions which did not constitute a hazard to life or property or constitute a breach of the peace were not to be enforced. This policy was based upon a limited manpower of the sheriff's office and the existence of other law enforcement agencies specifically assigned the duty of traffic law enforcement and the enforcement of laws within the corporate city limits of municipalities within Leon County. In addition, Sgt. Walker was required to render assistance at any accident scene or other emergency situations in which he encountered at any time whether in uniform or in civilian clothes. Walker was required to carry his identification and a weapon at all times. Sgt. Walker was subject to recall to specifically assign duties at any time during the day. From observations of qualified individuals at the scene of the accident in which Sgt. Walker was killed, there was no indication tat the accident and death was the result of the enforcement of any law. At the time of his death, Walker was subject to the performance of all the duties enumerated in the paragraph above.
Recommendation Based upon the foregoing Findings of Fact and Conclusions of Law, the Hearing Officer RECOMMENDS: That the application of Carolyn W. Walker for death in-line-of duty benefits, based upon the death of he husband, Ronnie D. Walker, be approved and that she receive the death in-line-of-duty benefits payable under the provisions of Chapter 121, Florida Statutes. DONE and ENTERED this 8th day of November, 1977, in Tallahassee, Florida. STEPHEN F. DEAN, Hearing Officer Division of Administrative Hearings Room 530, Carlton Building Tallahassee, Florida 32304 (904) 488-9675 ================================================================= AGENCY FINAL ORDER ================================================================= STATE OF FLORIDA DEPARTMENT OF ADMINISTRATION DIVISION OF RETIREMENT CAROLYN W. WALKER, Petitioner, vs. CASE NO. 77-1463 STATE OF FLORIDA, DIVISION OF RETIREMENT, Respondent. /
The Issue Whether the injury claimed is a birth-related neurological injury and qualifies for coverage under the Florida Birth- Related Neurological Injury Compensation Plan.
Findings Of Fact The parties' Pre-Hearing Stipulation stipulated as fact that: Nealy and John Munoz are the parents of minor Giovanni Munoz. Giovanni Munoz was born on March 18, 2006, at Memorial Regional Hospital, Hollywood, Florida. His was a live birth, and he weighed in excess of 2500 grams at birth. The physician providing obstetrical services during labor and delivery of Giovanni was Violetta Lyra, M.D. Dr. Lyra was a participating physician in the NICA program in 2006.[3] Nealy and John Munoz, as parents and natural guardians of Giovanni Munoz have filed a Petition with the State of Florida, Division of Administrative Hearings, seeking a determination that injuries sustained by Giovanni Munoz constitute a birth-related neurological injury. The record evidence supports the foregoing stipulated facts, and the record also supports findings that Giovanni was a single gestation and that Memorial Regional Hospital is a "hospital" as defined in Section 766.302(6), Florida Statutes. The Plan affords coverage 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 § 766.31, Fla. Stat. At hearing, the parties stipulated orally, and the proof is otherwise compelling, that Giovanni suffered an injury to the brain caused by oxygen deprivation, which injury resulted in a permanent and substantial mental and physical impairment. Accordingly, the issue for resolution herein was narrowed to whether or not Giovanni's permanent and substantial mental and physical impairment caused by oxygen deprivation occurred "in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital[.]" Expert medical testimony was rendered herein via the depositions of Dr. Michael Duchowny, Dr. Donald C. Willis, and Dr. Tatyana Dubrovsky. Dr. Duchowny is board-certified in pediatric neurology, a sub-specialty of medicine involved with the diagnosis and treatment of disorders of the nervous system in children, with special competence in clinical neurophysiology. Dr. Willis is board-certified in obstetrics, gynecology, and maternal-fetal medicine. Dr. Dubrovsky is board-certified in pediatric neurology. Dr. Dubrovsky has been Giovanni's treating neurologist since he was seven months' old, when Giovanni's parents noted that he was not meeting his milestones. Notably, the parties did not present testimony from a neonatologist. Wherever the medical experts' testimony is relied-upon or referred-to herein, it is only those portions of their testimony which have been rendered within reasonable medical probability or certainty, and the undersigned has not relied upon any responses by deponents to unrelated or incomplete hypothetical questions or where the deponents have been asked to speculate upon events not recorded or facts not in evidence. Giovanni is the product of a 38-week gestation. His mother, Nealy Munoz, denied that any major problems occurred with the pregnancy during the first 36 weeks. On March 3, 2006, in the thirty-sixth week of an uneventful pregnancy, Mrs. Munoz presented to Memorial Regional Hospital as an outpatient for a biophysical profile (BPP). She had been referred there by her treating obstetrician, Dr. Lyra, due to "decreased fetal movement." A BPP is used to determine the well-being of a fetus and uses numerical points for certain criteria. There are a total of eight points attainable on a BPP. Either two points or zero are given for each of four categories: fetal breathing, body movement, fetal tone, and sufficiency of amniotic fluid. Although Mrs. Munoz' testimony gave no particular reason for the March 3, 2006, BPP, it is apparent from the medical records that her physician ordered the March 3, 2006, BPP due to lack of, or decrease in, fetal movement. Mrs. Munoz also provided that same reason to Dr. Duchowny as part of his independent medical examination of Giovanni. For the first BPP on March 3, 2006, Giovanni scored six out of eight points, with no points for fetal breathing. Fetal breathing movements (FBM) are a reflection of adequate oxygenation to the baby's brain. However, they are intermittent, and fetal breathing movements sometimes are not observed within the 30-minute window for a BPP, so repeating such a test on sequential days was appropriate. On March 4, 2006, the BPP was repeated, and Giovanni again scored 6 of 8, with no points for fetal breathing. However, a non-stress test (NST) also was done the same day, and the NST showed that Giovanni was "reactive," which information was somewhat reassuring. On March 5, 2006, the BPP was repeated a third time, and Giovanni scored eight out of eight. On the second NST, which was also done that date, Giovanni was again found to be "reactive." All three physicians who testified believed something had happened to Giovanni in utero at or about March 3- 5, 2006. Drs. Duchowny and Willis also opined that the oxygen deprivation that impaired Giovanni's brain probably occurred outside the statutory time frame for compensability but within the 24 hours before his mother presented to the hospital two weeks later on March 17, 2006. (See Finding of Fact 38.) No assessment of fetal brain injury was undertaken March 3-5, 2006. Classically, assessments of brain injury are not performed until after birth. On March 15, 2006, another BPP and another NST were performed, and Giovanni scored 8/8 on the BPP and had a "reactive" NST. Apparently, there was no absence of fetal breathing or oxygen deprivation at that point in time, but again, there also was no assessment of possible brain injury to Giovanni that may already have occurred. Mrs. Munoz experienced no further pregnancy problems until two days later, on the morning of March 17, 2006. That morning, she arose and dressed for work, noting that there was no fetal movement and that Giovanni felt "hard." At hearing, she described this sensation as, "When they [a fetus/baby] are moving there is a softer feeling in the belly, and it just felt as if it was hard, like it was a ball, very stiff." Mrs. Munoz made similar statements to Dr. Duchowny, as part of his examination of Giovanni. Because Giovanni did not move from the time Mrs. Munoz awakened the morning of March 17, 2006, until 2:00 p.m., that afternoon, she phoned her obstetrician. Dr. Lyra told her to go home, rest, eat, and drink something sugary "to get things going." Mrs. Munoz did as she was told. Mrs. Munoz utilized a fetal Doppler heart monitor two or three times on the morning of March 17, 2006, before calling her physician, and also used it in the afternoon, after talking to her physician. This type of fetal heart monitor measures the fetus/baby's heart beat, but there is no evidence that it measures oxygen to the baby's brain. There was still no fetal movement by late evening on March 17, 2006, so about 10:00 p.m., Mrs. Munoz again phoned her obstetrician, who told her to go to the hospital, which she did. The hospital records show that on March 18, 2006, Mrs. Munoz was admitted to Memorial Regional Hospital on an emergency basis for a labor check, decreased fetal movement (fetal distress), and probable caesarean section. Mrs. Munoz did not testify to the time she awakened on the morning of March 17, 2006, except that it was "morning." Therefore, even if she had awakened as late as 11:59 a.m., that day, which is very unlikely, and allowing for delays in admission between the time she testified she arrived at the hospital on March 17, 2006, and the March 18, 2006, date on her admission documents, by the time she checked into the hospital, there had been no fetal movement for a minimum of 10 hours and probably for a much longer period of time. At no time did medical personnel check the degree of dilation of Mrs. Munoz' cervix, or chart that she was in labor. Dr. Duchowny testified that he had never heard of an absence of fetal movement being indicative of the onset of labor. At 2:28 a.m., March 18, 2006, fetal heart rate (FHR) decelerations were recorded. Decelerations show that the fetus was in distress. Mrs. Munoz testified that in the hospital, she had some weak contractions, lasting a half minute, about nine minutes apart, but the BPP and hospital records reflect the following activity: At 2:55 a.m. March 18, 2006, a contraction of mild intensity lasting 40-50 seconds was recorded. At 3:00 a.m., accelerations were absent, and there were intermittent late decelerations recorded. At 3:15 a.m., Giovanni scored only two out of eight points, with zero points for fetal breathing, zero points for body movement, zero points for fetal tone, and two points for sufficiency of amniotic fluid. There also was an abnormally high resistance to umbilical cord artery flow in the placenta and a NST showed that Giovanni was non-reactive. At 3:30 a.m., left and right reflexes were absent, contraction intensity was irregular, and accelerations and decelerations were absent. Contractions of 20-40 seconds with irregular intensity were recorded with absent accelerations and variable decelerations. This recorded activity is not sufficient to meet the definition of "labor."4 Dr. Lyra was contacted by phone, and she ordered an immediate cesarean section. Giovanni Munoz was delivered by emergency cesarean section at approximately 4:04 a.m., on March 18, 2006. The membranes were ruptured at the time of delivery. There was no placental detachment. Drs. Duchowny and Willis were of the opinion that Mrs. Munoz never went into labor, and Dr. Dubrovsky deferred on this issue. Upon delivery, Giovanni's skin was peeling and he was not breathing on his own. However, he only required suction of his nose and mouth with a bulb syringe, mask bag ventilation for 60 seconds, and vigorous stimulation. As Giovanni responded to mask oxygen and vigorous stimulation, his color and heart rate improved and his Apgar scores reflected that improvement.5 Giovanni was not intubated or placed on a ventilator due to lack of oxygen. According to Dr. Willis, if a baby does not have chemical pneumonia or chemical pneumonitis, then not intubating would not have any effect on oxygen consumption or oxygenation. Giovanni did not evidence either of these problems, which most often arise from meconium6 aspiration syndrome (MAS). Giovanni's Apgar scores were taken at one minute, five minutes and ten minutes, and recorded as four, six and eight, respectively. An Apgar score of seven or below is considered "low," but according to Dr. Duchowny, an Apgar score at one minute is more a reflection of the trauma of delivery itself, rather than an indicator of an infant's well-being at the moment of delivery or whether there is an ongoing hypoxic event. Dr. Willis stated that Giovanni's one-minute Apgar score signaled how much resuscitation was needed. According to Dr. Duchowny, Giovanni's rising Apgar scores in so short a period "reflected a reasonable, moderately good physiologic adjustment to the extra-uterine environment," and were not Apgar scores associated with a severe hypoxic ischemic insult acquired during labor and delivery. If Giovanni had been asphyxiated during labor and delivery, Dr. Duchowny would have expected his Apgar scores to be considerably lower than they were. Dr. Willis also testified that Giovanni's rapid response to bulb syringe suctioning and one minute of mask bag resuscitation was better than normally seen if a baby has suffered an acute hypoxic event. At birth, there was meconium in the amniotic sac, and Giovanni's fingernails were meconium-stained. Meconium in the amniotic fluid does not signal a hypoxic event. If meconium gets into a baby's posterior pharynx just below the vocal cords, then intubation and suctioning can be used to remove it, but if meconium gets into the lungs, intubation or suctioning will not solve the problem, and the baby can suffer meconium aspiration syndrome (MAS), leading to chemical pneumonia or chemical pneumonitis, and finally, brain injury by loss of oxygen. Although Giovanni had sufficient respiratory distress to require 60 seconds of mask bag oxygenation, there is no persuasive evidence that he suffered chemical pneumonia, chemical pneumonitis, or MAS. Dr. Dubrovsky testified that she could not state one way or another, or with full clarity, when the brain injury to Giovanni occurred.7 A baby's fingernails will not be stained with meconium just because there is meconium in the amniotic fluid shortly before delivery. Therefore, Giovanni's stained fingernails demonstrated that a hypoxic event had occurred remote in time from his delivery. Dr. Willis testified that when a newborn's fingernails become meconium stained, it usually means that the meconium was present for at least four to six hours prior to birth, and that herein, the hypoxic event must have occurred at some point prior to Giovanni's March 18, 2006, delivery. In his opinion, Giovanni's situation "would be consistent with having a hypoxic insult at some time remote from delivery." Moreover, Dr. Duchowny found Giovanni's nucleated red blood cells also to be indicative of a hypoxic event more than 24 hours, and probably much longer, prior to any labor. He further testified that none of Giovanni's widespread systems were compromised as would be expected of a hypoxic event during labor or delivery. There was no systemic compromise, renal failure, cardiovascular failure or liver enzyme abnormalities noted in Giovanni's medical records. However, Giovanni's umbilical cord gas had an abnormal pH of 6.97 and a BE of "minus 13" [-13]. He had prenatal depression, mild hypoglycemia (low blood sugar), thrombocytopenia (decreased platelets) and jaundice. Giovanni was immediately removed to the Neonatal Intensive Care Unit (NICU) for five days until he and Mrs. Munoz were simultaneously released to go home. Mrs. Munoz's hospital records from this point on reflect that she was recovering from the cesarean section and that Giovanni had problems breast feeding. None of the expert medical physicians who testified addressed what Giovanni's being in NICU might mean in relation to oxygen deprivation, if any. However, according to the records, Giovanni's oxygen problems were resolved on March 18, 2006 (presumably by the suction and mask bag ventilation), and according to Dr. Duchowny, Giovanni's postnatal course was not complicated in the same way as that of a baby with oxygen deprivation during the statutory period (labor, delivery, or resuscitation in the immediate postdelivery period in a hospital) would be.
Findings Of Fact By stipulation filed January 3, 1994, petitioners 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 VENISE FERDINAND, MARIE VIRGILE and MANES FERDINAND (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 infant, VENISE FERDINAND, was born at Broward General Medical Center on April 1, 1992, and Broward General Medical Center was a licensed Florida Hospital and the attending physician, Joseph Nicaisse 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 "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 VENISE FERDINAND 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 reports dated February 10, 1993, March 12, 1993 and November 15, 1993. Copies of these reports have been attached hereto and incorporated herein respectively as Exhibits 1, 2 and 3. 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 this stipulation, the parties request the hearing officer to rule on Petitioners' claim based upon this Stipulation, and the attached medical records. The neurological examinations of Venise Ferdinand reveal that she suffered a left Erb's palsy directly related to the left brachial plexus injury she received at birth. A brachial plexus injury, the cause of Erb's palsy, is not, however, a brain or spinal cord injury and, further, does not result in mental injury. Moreover, Venise Ferdinand's mental functioning is normal and not impaired due to any birth related complications.
