Findings Of Fact By stipulation filed November 8, 1995, petitioners and respondent stipulated as follows: That pursuant to Chapter 766.301 - 766.316, Florida Statutes, a claim was filed on behalf of the above-styled infant against the Florida Birth-Related Neurological Injury Compensation Association (the Association) by Susan Petty Rogers and Calyvin Rogers (the petitioners) for benefits under Chapter 766.301 - 766.316, F.S. That a timely filed claim for benefits complying with the requirements of F.S. 766.305 was filed by Petitioners and a timely denial was filed on behalf of the Association. That the Division of Administrative Hearings has jurisdiction of the parties and the subject matter of this claim That the parties agree the medical records of Chelsea Rogers reveal that she suffers form an injury to the right brachial plexus. A brachial plexus injury is not, however, a brain or spinal cord injury. Chelsea has also been diagnosed by T. Wayne Conger, Ph.D., a neuropsychologist, as having a cognitive disorder which may be related to her birth. The cognitive disorder is not, however, a brain injury " which renders the infant permanently and substantially mentally and physically impaired." Therefore, Chelsea does not fit within the strict definition of claims covered by the Florida Birth-Related Neurological Injury Compensation Association under Section 766.302.(2), Florida Statutes. That the infant, Chelsea Rogers was born at Tallahassee Memorial Hospital on April 5, 1990, and that the said hospital was a licensed Florida hospital. The participating physician who was present at the birth and delivered obstetrical services was A. J. Brickler, M.D. That the infant, Chelsea Rogers, weighed 4,510 grams which is in excess of 2,500 grams. WHEREFORE, based upon the above stipulated set of facts, it is respectfully requested that the Division of Administrative Hearings approve the stipulations as being consistent with the evidence in this cause and enter an order denying the claim against the Association on the basis that Chelsea Rogers did not suffer a birth-related neurological injury as defined by Section 766.302(2), Florida Statutes. The medical records and other documentation of record in this case reveal, consistent with the parties' stipulation, that Chelsea Rogers suffered a right brachial plexus injury at birth. A brachial plexus injury is not, however, a brain or spinal cord injury and such injury did not render her substantially physically impaired. Moreover, while Chelsea Rogers may have a cognitive disorder, she is not substantially mentally impaired.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is ORDERED that the petition for compensation filed by Susan Petty Rogers and Calyvin Rogers, as parents and natural guardians of Chelsea Rogers, a minor, be and the same is hereby denied with prejudice. DONE AND ORDERED this 14th day of November 1995 in Tallahassee, Leon County, Florida. ___________________________________ WILLIAM J. KENDRICK 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 14th day of November 1995.
The Issue At issue is whether Christopher Kocher, a deceased minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan. If so, whether the notice requirements of the Plan were satisfied.
Findings Of Fact Findings related to the parental award and past expenses At hearing, the parties stipulated that there were no monies owing for past expenses, as they had been paid by collateral sources (private insurance). Section 766.31(1)(a). The parties further agreed that Petitioners, as the parents of Christopher Kocher, a deceased minor, be accorded a lump sum award of $100,000.00, as well as an award of $1,500.00 for funeral expenses. Section 766.31(1)(b). Findings related to attorney's fees and costs incurred in connection with the filing of the claim To support their claim for attorney's fees, Petitioners offered what was titled "Ferraro & Associates, P.A.'s Time Sheet." (Petitioners' Composite Exhibit 1, "Ferraro & Associates, P.A.'s Time Sheet"). As explained by Plaintiffs' counsel, at hearing MR. JOHNSTON: And these were -- these are the hours that were reconstructed. Our firm doesn't normally keep time records. We're a plaintiffs firm. But Mr. Falzone did go through and estimated the time that was spent on the NICA related matters and put them in this time sheet . . . . The time sheet reflected 17 hours dedicated to the case by Mr. Falzone, for which Petitioners requested an hourly rate of $500 (a total of $8,500.00), and 109.25 hours dedicated to the case by "different associates," for which Petitioners requested an hourly rate of $250.00 (a total of $27,312.50), for a total award of $35,812.50. Notably, such time sheet is hearsay, and was received into evidence subject to the limitations of Section 120.57(1)(c). ("Hearsay evidence may be used for the purpose of supplementing or explaining other evidence, but it shall not be sufficient in itself to support a finding unless it would be admissible over objection in civil actions.") Consequently, since no witnesses were called or competent evidence offered detailing the services rendered or the prevailing hourly rate charged in the community by lawyers of reasonably comparable skill, experience and reputation, for similar services, there is no competent proof to support an award of attorney's fees. Mercy Hospital, Inc. v. Johnson, 431 So. 2d 687, 688 (Fla. 3d DCA 1983)("[Attorney's] failure to present detailed evidence of his services is fatal to his claim."); Yakubik v. Board of County Commissioner's of Lee County, 656 So. 2d 591 (Fla. 2d DCA 1995)("The testimony of an expert witness concerning reasonable attorney's fees is necessary to support the establishment of the fees.") Nevertheless, at hearing, Respondent agreed that it would accept 37.25 hours (the hours ostensibly expended from November 7, 2000, through April 28, 2001), as reasonably expended in pursuing the claim, and $175.00 as a reasonable hourly rate, for a total fee award of $6,518.75. Here, given that the claim was routine, and lacked any novel aspect that would warrant the time claimed by Petitioners' counsel, Respondent's concession is reasonable. Consequently, given that Petitioners' counsel obviously expended some time pursuing the claim, and there is no competent proof to otherwise support an award of attorney's fees, an award of $6,518.75 is appropriate. Finally, Petitioners seek to recover certain expenses they claim were reasonably incurred in connection with pursuing the claim for compensation. Such costs total $4,139.30. (Petitioners' Composite Exhibit 1, "Case Expense Report," page 3). Respondent does not object to the costs reflected on counsel's "Case Expense Report," page 3, commencing with the entry of November 7, 2000 ($15.00), and extending through the entry of March 20, 2001 ($15.50), totaling $1,036.02. Accordingly, those costs are awarded, without further discussion. As for the balance of expenses claimed, and opposed by Respondent, the record is devoid of proof to support their recovery. Notably, as with their claim for attorney's fees, Petitioners offered neither testimony nor competent evidence detailing the nature of the expenses claimed. Consequently, it would be pure speculation to conclude such expenditures constitute costs that are traditionally taxable, that they were reasonable in amount, or that they were necessarily incurred in pursuing the claim for compensation. Consequently, such expenses are not recoverable.
