The Issue At issue is whether Maxwell Hubmann, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts related to compensability Petitioners, Roger and Sara Hubmann, are the parents of Maxwell Hubmann, a minor. Maxwell was born a live infant on March 25, 2008, at Sacred Heart Hospital, a hospital located in Pensacola, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Maxwell's birth by Brian Sontag, 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 . . . caused by . . . 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. Here, the parties have stipulated, and the proof is otherwise compelling, that Maxwell suffered a traumatic brain injury during the delivery process. (Transcript, pp. 9 and 10; Respondent's Exhibits 1-4). What remains to resolve is whether such injury rendered Maxwell permanently and substantially mentally and physically impaired. To address the nature and significance of Maxwell's injury, NICA offered the affidavit and report of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology, who evaluated Maxwell on January 28, 2009. Based on his evaluation, as well as his review of the medical records, Dr. Duchowny was of the opinion that while Maxwell suffered a traumatic brain injury during delivery, his mental function was normal and his motor deficit was quite mild. In so concluding, Dr. Duchowny documented the results of his examination, as well as his conclusions, as follows: PHYSICAL EXAMINATION today reveals an alert, well-developed and cooperative, well- nourished 10-month-old infant. Maxwell weighs 24 pounds and is 30 inches in height. The skin is warm and moist. There are no neurocutaneous stigmata. The hair is blond and of normal texture. The spine is straight without dysraphism. The head circumference measures 46.1 centimeters which is within standard percentiles. The anterior and posterior fontanels are patent and flat. There are no cranial or facial anomalies or asymmetries. The tongue and palate are moist. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Maxwell's NEUROLOGICAL EXAMINATION reveals him to be alert, cooperative and fully attentive. He is quite sociable and maintains an age appropriate stream of attention. He has good central gaze fixation with conjugate following movements. The pupils are 3 mm and react briskly to direct and consensually presented light. Funduscopic examination revealed no abnormal retinal findings. There are no significant facial asymmetries of movement. The uvula is midline and the pharyngeal folds are symmetric. Tongue movements are full in all planes. Motor examination reveals an asymmetry of movement with relatively greater movement on the right side. The left upper extremity has mild stiffness but has full range of motor. There is fine motor dexterity of both hands but Maxwell demonstrates a right arm preference and will preferentially reach for an object with the right hand. When an object is moved to the left, he will ultimately offer the left and readily transfers between hands. He has symmetrical movement of both legs. He has well-developed traction and grasp responses and good head control for age. The deep tendon reflexes are slightly exaggerated being 3+ at the knees and biceps. There are no pathologic reflexes. Plantar responses are downgoing. He can stand and bear weight with good axial tone and support does not take steps independently. He has good sitting balance as well. 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. In SUMMARY, Maxwell's neurological examination reveals that his motor developmental milestones are on time despite a very mild asymmetry of movement and muscle tone in the upper extremities. He is preferentially a right hander due to the motoric asymmetry. In other respects, Maxwell's neurologic status is quite good and his overall level of mental functioning appears to be on target at age level. I have had an opportunity to fully review the medical records which were mailed on January 12, 2009. The records indicate that Maxwell's neurologic problems at birth were the result of mechanical injury acquired during the delivery process. However, he has made remarkable progress and his mental function is normal and his motor deficit is quite mild . . . . (Respondent's Exhibits 3 and 4). Here, the opinions of Dr. Duchowny were logical, consistent with the record, not controverted, and not shown to lack credibility. Consequently, it must be resolved that Maxwell's brain injury did not render him permanently and substantially mentally and physically impaired. See 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.").
The Issue At issue in this proceeding is whether Wilgen Wandique, Jr., a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Wilgen Wandique and Concepcion Wandique, are the parents and natural guardians of Wilgen Wandique, Jr. (Wilgen), a minor. He was born a live infant on August 21, 1996, at Hialeah Hospital, a hospital located in Dade County, Florida, and his birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Wilgen was Gustavo Ruiz, M.D., who was at all times material hereto, a "participating physician" in the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), as defined by Section 766.302(7), Florida Statutes. Wilgen's delivery at Hialeah Hospital on August 21, 1996, was apparently difficult due to his large birth weight, and was complicated by a shoulder dystocia. Following delivery, Wilgen was noted having evidence of a mild to moderate compromise of the upper right brachial plexus, an Erb's palsy, which affected the range of motion on the upper right extremity, including the arm, forearm, and hand. Otherwise, Wilgen's presentation was unremarkable, and he evidenced no abnormalities with regard to his mental status and, as hereafter noted, no motor abnormalities of central nervous system origin. A brachial plexus injury, such as that suffered by Wilgen during the course of his birth, is not, anatomically, a brain or spinal cord injury, and does not affect his mental abilities. Moreover, as heretofore noted, apart from the brachial plexus injury, Wilgen was not shown to suffer any other injury during the course of his birth. Consequently, the proof fails to demonstrate that Wilgen suffered an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury during the course of labor or delivery, and further fails to demonstrate he is presently permanently and substantially, mentally and physically impaired.
