Findings Of Fact Jesus Christopher Michael Camacho was born on November 29, 2011, at Shands Lake Shore Regional Medical Center located in Lake City, Florida. Jesus weighed in excess of 2,500 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Jesus. In a medical report dated April 8, 2015, Dr. Willis described his findings as follows: In summary, this baby had a birth related brain injury as documented by MRI findings of extensive brain hemorrhage by DOL 2. The oxygen deprivation and brain injury was a result of poor perfusion due to blood loss in a subgaleal hematoma that occurred at delivery. The FHR tracing during labor was not available for review, but attempt at vacuum delivery and Cesarean section were done for non-reassuring FHR pattern. It does not appear that brain injury occurred during labor or delivery, but the difficult delivery may have contributed to the eventual outcome. The oxygen deprivation and brain injury occurred during resuscitation in the immediate post-delivery period. The baby never stabilized immediately after delivery and required continuous resuscitation, including oxygen, intravenous fluid boluses and blood transfusions during the first day of life. The immediate post-delivery period would extend during this period of time, prior to stabilization. There was an apparent subgaleal hematoma that began at delivery and resulted in blood loss, poor perfusion, oxygen deprivation and brain injury that occurred during the immediate post-delivery period. I am not able to comment about the severity of the brain injury. NICA retained Raymond J. Fernandez, M.D. (Dr. Fernandez), a pediatric neurologist, to examine Jesus and to review his medical records. Dr. Fernandez examined Jesus on April 8, 2015. In a medical report dated April 14, 2015, Dr. Fernandez opined as follows: IMPRESSION: There is clear evidence for substantial mental and motor impairment that will be permanent due to mechanical and hypoxic- ischemic brain injury sustained during labor and delivery. Jesus’ brain injury is due, in large part, to his mechanically traumatic delivery that resulted in extensive brain hemorrhage. There was a lesser degree of brain injury due to oxygen deprivation as evidenced by a metabolic acidosis at birth and brain MRI abnormalities indicative of hypoxic-ischemic injury. Jesus has a spastic right hemiplegia causing substantial motor impairment. In addition, he has expressive speech, receptive language, executive function, and learning impairments that are substantial. A review of the file in this case reveals that there have been no opinions filed that are contrary to the opinion of Dr. Willis that there was an apparent subgaleal hematoma that began at delivery and resulted in blood loss, poor perfusion, oxygen deprivation and brain injury that occurred during the immediate post-delivery period. Dr. Willis' opinion is credited. There are no opinions filed that are contrary to Dr. Fernandez’s opinion that there is clear evidence that Jesus sustained substantial mental and motor impairment that will be permanent due to mechanical and hypoxic-ischemic brain injury sustained during labor and delivery. Dr. Fernandez’s opinion is credited.
The Issue At issue in this proceeding is whether Alexandra Louise Biedenharn, a minor, suffered an injury for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan.
Findings Of Fact Fundamental findings Deborah Biedenharn and Joseph Biedenharn are the parents and natural guardians of Alexandra Louise Biedenharn (Alexandra), a minor. Alexandra was born a live infant on March 17, 1997, at Lawnwood Regional Medical Center, a hospital located in Fort Pierce, Florida, and her birth weight was in excess of 2500 grams. The physician providing obstetrical services during the birth of Alexandra was Juliette Lomax-Homier, 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. Coverage under the Plan Pertinent to this case, coverage is afforded under the Plan when the claimant demonstrates, more likely than not, that the infant suffered 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 post-delivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired." Sections 766.302(2) and 766.309(1)(a), Florida Statutes. Here, Alexandra's neurologic condition is dispositive of the claim and it is unnecessary to address the timing or cause of her condition. Alexandra's neurologic status On October 2, 1997, following the filing of the claim for compensation, Alexandra was examined by Michael Duchowny, M.D., a board-certified pediatric neurologist. Dr. Duchowny's examination of Alexandra revealed no evidence of a substantial motor deficit, but did reveal evidence of mild hypertonia, which has shown progressive improvement over time. Alexandra's social and cognitive function evidenced no compromise and, with regard to such matters, she was progressing at age level. In Dr. Duchowny's opinion, which is credited, Alexandra is not currently substantially mentally and physically impaired and, consequent to any events which may have occurred at birth, is not likely to be so impaired in the future.
Other Judicial Opinions 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.
The Issue Whether Respondents violated the provisions of chapter 440, Florida Statutes, by failing to secure the payment of workers' compensation coverage, as alleged in the Stop-Work Orders, and, if so, what penalty is appropriate.
Findings Of Fact The Department is the state agency charged with enforcing the requirement of chapter 440, Florida Statutes, that employers in Florida secure workers' compensation coverage for their employees. § 440.107(3), Fla. Stat. Respondents are gas station/convenience stores located in South Florida. Northlake was created by Nazma Akter on May 6, 2014. MB was created by Ms. Akter on March 23, 2010. Congress Valero was created by Muhammad Saadat on July 21, 2011. Hena was created by Ms. Akter and Abu Ahsan on December 14, 2011. Hayma was created by Ms. Akter on December 14, 2011. Blue Heron was created by Ms. Akter on August 4, 2009. At all times relevant hereto, Respondents were duly-licensed to conduct business in the state of Florida. On February 2, 2015, the Department's Compliance Investigator Robert Feehrer, began a workers' compensation compliance investigation of Gardenia, LLC. Investigator Feehrer called the number listed for Gardenia, LLC, and was provided with a corporate office address. On February 10, 2015, upon arrival at Gardenia, LLC's, corporate office located at 165 US Highway 1, North Palm Beach, Florida, 33408, Investigator Feehrer spoke with Operations Manager Mohammad Hossain. Mr. Hossain stated that Gardenia, LLC, was a paper corporation and existed only for the purpose of paying unemployment taxes on the "six stores." Mr. Hossain went on to provide Investigator Feehrer with a list of Respondents and names of the employees that worked at each store. As an employee of Gardenia, LLC, and Respondents, Mr. Hossain's statements are party opponent admissions and bind Respondents. Lee v. Dep't of Health & Rehab. Servs., 698 So. 2d 1194, 1200 (Fla. 1997). With Mr. Hossain's statements and the list of Respondents' employees, Investigator Feehrer then consulted the Division of Corporations website, www.sunbiz.org, and confirmed that Respondents were current, active Florida companies. Investigator Feehrer then consulted the Department's Coverage and Compliance Automated System ("CCAS") for proof of workers' compensation coverage and exemptions associated with Respondents. Investigator Feehrer's CCAS search revealed that Respondents had no workers' compensation policies and no exemptions. On February 24, 2015, Investigator Feehrer conducted site visits at each of the six stores. Ms. Akter and Mr. Hossain accompanied Investigator Feehrer during these site visits. At all times material hereto, Ms. Akter was a corporate officer or managing member of each of the six Respondents. Muhammed Saadat and Abu Ahsan were corporate officers or managing members of Congress Valero, Hena, and Blue Heron. Kazi Ahamed was a corporate officer or managing member of Congress Valero and Hayma. Kazi Haider and Mohammed Haque were managing members of Hayma. All received compensation from the companies with which they were involved. Although Investigator Feehrer only personally observed one employee working at each location during his site visits, the payroll records revealed that at least four employees (including corporate officers or managing members without exemptions) received compensation for work at each location during the relevant period. Investigator Feehrer required additional information to determine compliance, and with Respondents' permission, contacted Respondents' accountant. Investigator Feehrer met with the accountant at least two times to obtain relevant information prior to March 30, 2015. Upon Ms. Akter's authorization, the accountant provided tax returns and payroll information for Respondents' employees. Information from Ms. Akter and Mr. Hossain also confirmed the specific employees at each of the six stores during the period of March 30, 2013, through March 30, 2015. On March 30, 2015, based on his findings, Investigator Feehrer served six Stop-Work Orders and Orders of Penalty Assessment. The Stop-Work Orders were personally served on Ms. Akter. Mr. Hossain was present as well and confirmed the lists of employees for each of the six stores were accurate. In April 2015, the Department assigned Penalty Auditor Christopher Richardson to calculate the six penalties assessed against Respondents. Respondent provided tax returns for the audit period and payroll transaction details were provided, as well as general ledgers/breakdowns, noting the employees for each Respondent company. Based on Investigator Feehrer's observations of the six stores on February 24, 2015, Auditor Richardson used the classification code 8061 listed in the Scopes® Manual, which has been adopted by the Department through Florida Administrative Code Rule 69L-6.021(1). Classification code 8061 applies to employees of gasoline stations with convenience stores. Classification codes are four-digit codes assigned to various occupations by the National Council on Compensation Insurance to assist in the calculation of workers' compensation insurance premiums. In the penalty assessment, Auditor Richardson applied the corresponding approved manual rate for classification code 8061 for the related periods of non-compliance. The corresponding approved manual rate was correctly utilized using the methodology specified in section 440.107(7)(d)1. and rule 69L-6.027 to determine the final penalties. The Department correctly determined Respondents' gross payroll pursuant to the procedures required by section 440.107(7)(d) and rule 69L-6.027. On January 14, 2016, the Department served the six Amended Orders of Penalty Assessment on Respondents, assessing penalties of $1,367.06 for Northlake, $9,687.00 for MB, $12,651.42 for Congress Valero, $18,508.88 for Hena, $7,257.48 for Hayma, and $4,031.60 for Blue Heron. The Department has demonstrated by clear and convincing evidence that Respondents were engaged in the gasoline station, self-service/convenience store industry in Florida during the periods of noncompliance; that Respondents failed to secure the payment of workers' compensation for their employees, as required by Florida's Workers' Compensation Law; and that the Department correctly utilized the methodology specified in section 440.107(7)(d)1. to determine the appropriate penalties.
Recommendation Based on the foregoing Findings of Fact and Conclusions of Law, it is RECOMMENDED that the Department enter a consolidated final order upholding the Stop-Work Orders and the Amended Orders of Penalty Assessment in the amounts of $1,367.06 for Northlake Mobile Enterprises, Inc.; $9,687.00 for MB Food and Beverage, Inc.; $12,651.42 for Congress Valero, Inc.; $18,508.88 for Hena Enterprises, Inc.; $7,257.48 for Hayma Enterprises, Inc.; and $4,031.60 for Blue Heron BP, Inc. DONE AND ENTERED this 16th day of June, 2016, in Tallahassee, Leon County, Florida. S MARY LI CREASY Administrative Law Judge Division of Administrative Hearings The DeSoto Building 1230 Apalachee Parkway Tallahassee, Florida 32399-3060 (850) 488-9675 Fax Filing (850) 921-6847 www.doah.state.fl.us Filed with the Clerk of the Division of Administrative Hearings this 16th day of June, 2016.
Findings Of Fact 1 In either April or May, 1983, HRS District III, Respondents in this case, advertised a request for proposals to operate a spouse abuse shelter in a subdistrict of HRS District III in accordance with the following schedule: The request for proposal (RFP) package was to be picked up by 5 p.m., May 20, 1983; the applicant was to notify HRS of its intent to submit a proposal by 5 p.m., May 20, 1983; and the proposal was to be filed with HRS no later than 5 p.m., June 3, 1983. The contract in question was for the period July 1, 1983 through June 30, 1984. Linda Tucker, President of the Petitioner's Board of Directors, found out about the solicitation from her Vice President, Alice Mulrooney, who had received word of it through an administrative letter sent to her in her capacity of an officer on the County Rape Council. Ms. Tucker and Ms. Mulrooney both telephonically spoke with Carol Laxton, the HRS official in Gainesville who was stewarding this solicitation. It was not clear which of the two spoke with her first. Ms. Tucker spoke with Ms. Laxton on May 20, 1983, and requested to be furnished with a copy of the RFP. Both Tucker and Mulrooney indicated they told Ms. Laxton that Petitioner was not yet incorporated. Both agree Ms. Laxton advised them the requirement for incorporation could be waived and that the proposal should be submitted anyway, including a letter from Petitioner's lawyer to the effect that the incorporation papers had been forwarded to the office of the Secretary of State. On May 25, 1983, Petitioner contacted representatives of the Hernando County Commission relative to county funding of at least a portion of that local source of matching funds required to make up at least 25 percent or the overall proposed operating budget as required by Florida Statutes and as set out in the proposal. At that time, Petitioner was advised that while the Commission supported the Petitioner's proposal in concept and fully hoped to lend its financial support, it could not officially do so until after the county's budget hearings were completed and it was determined that the requested funds were in fact available. A letter to this effect was submitted to Ms. Laxton by the Chairman of the Commission on June 7, 1983. In the interim, before the proposal was submitted, both Ms. Tucker and Ms. Mulrooney discussed this possible defect, as well, with Ms. Laxton. Again, both ladies contend Ms. Laxton advised them this criterion could be waived, as well. Petitioner submitted its proposal on time. However, at the time of submittal, the Petitioner was not in fact incorporated. The proposed corporate charter was forwarded to the Secretary of State on June 2, 1983 (a letter to this effect was sent the same day to Ms. Laxton by Petitioner's attorney), and approved on June 13, 1983. Also, at the time of submission, the proposal listed as budgeted resources donated land and two homes having a rental value of $4,800 per year as an in-kind resource, $182 as cash client contributions and $3,750 as a cash contribution by the Hernando County Commission. It is this last funding source that was committed in theory only and was not firm. Taken together, the three sources totaled $8,732, which would be slightly over 28 percent of the total yearly budget of $31,052. However, since the commitment from the County Commission was not firm and was contingent on funds being available, it could not be considered; and the remaining sum of $4,982 is only 16 percent of the budget. Ms. Laxton admits talking with both Tucker and Mulrooney on several occasions about the proposal and the difficulties they were having. They indicated to her they were having problems getting incorporated, but that their attorney was working on it. She admits telling them to send whatever they had, which included a status letter from their attorney. She also admits stating to them that some requirements of the RFP could be waived, but does not think incorporation was one and is sure she did not tell them the matching funds requirement could be waived. After hearing the evidence presented and considering it along with its relative probabilities and improbabilities, it is found that the Petitioner's representatives may have reasonably inferred the incorporation requirement could be waived. However, it is unlikely that Ms. Laxton would have even inferred anything as significant and sensitive as a matching fund requirement could be waived. If Ms. Tucker and Ms. Mulrooney inferred that from Ms. Laxton's comments, it was unfortunate, but in error. In fact, the County Commission did ultimately approve a commitment to Petitioner in the amount of $3,750. They have also received additional cash contributions of $2,300 and additional in-kind contributions of $5,000. None of these latter resources were in hand or firmly committed by the June 3, 1983 proposal submission deadline, however. At the present time, Petitioner is operating a shelter without Respondent's funds. They have requested assistance from the successful bidder, but have been turned down. There is, however, substantial but non-financial community support for Petitioner's operation.
Recommendation Based on the foregoing, it is RECOMMENDED: That Petitioner's protest be rejected. RECOMMENDED this 4th day of January, 1984, in Tallahassee, Florida. ARNOLD H. POLLOCK Hearing Officer Division of Administrative Hearings Department of Administration 2009 Apalachee Parkway Tallahassee, Florida 32301 (904) 488-9675 Filed with the Clerk of the Division of Administrative Hearings this 4th day of January, 1984. COPIES FURNISHED: LINDA TREIMAN, ESQUIRE 11 NORTH MAIN STREET BROOKSVILLE, FLORIDA 33512 JAMES A. SAWYER, JR., ESQUIRE DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1000 N.E. 16TH AVENUE BUILDING H GAINESVILLE, FLORIDA 32601 MR. DAVID PINGREE SECRETARY DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES 1323 WINEWOOD BOULEVARD TALLAHASSEE, FLORIDA 32301
Findings Of Fact Christian was born on February 24, 2009, at Mease Countryside located in Safety Harbor, Florida. Christian, who was born a twin, weighed in excess of 2,000 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Christian. In a medical report dated August 7, 2014, Dr. Willis opined as follows: Christine [sic] was delivered by Cesarean section for twins. Christine was designated as fetus A in the hospital records. Birth weight was 2,395 grams. Apgar scores were 9/9. The baby had mild respiratory distress and required nasal oxygen for <24 hours and then weaned to room air. NICU admission exam noted the baby to be alert and active with normal muscle tone. After weaning off oxygen, the baby remained stable until about one week of age when fever and seizure activity developed. E. coli meningitis was diagnosed. The baby subsequently developed hydrocephalus as a result of the meningitis. The child was subsequently diagnosed with cerebral palsy and developmental delay. Based on limited medical records, there does not apparent [sic] to be any 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. The baby had mild respiratory distress for less than 24 hours. The baby was stable until seizures developed at about one week age. Bacterial meningitis was diagnosed and resulted in hydrocephalus and brain injury. Dr. Willis reaffirmed his opinion in an affidavit dated April 27, 2014. NICA retained Michael S. Duchowny, M.D. (Dr. Duchowny), a pediatric neurologist, to examine Christian and to review his medical records. Dr. Duchowny examined Christian on January 14, 2015. In an affidavit dated April 29, 2015, regarding his independent medical examination of Christian, Dr. Duchowny opined as follows: In summary, Christian’s evaluation today reveals findings consistent with a substantial mental and physical impairment. Christian has a right hemiparesis with greater involvement of the upper extremity, absence of meaningful communication skills, repetitive self-stimulatory behavior, cortical visual impairment, microcephaly, and static hydrocephalus with a functioning left ventriculoperitoneal shunt. His developmental level is between 9-12 months of age which is significantly delayed. A review of Christian’s medical records confirms his mother’s impression of meningitis. Christian was diagnosed with Citrobacter meningitis in the Newborn Nursery. The records indicate that Christian was born at 33 weeks gestation and weighed 5 pounds 4 ounces at birth and had Apgar scores of 9 & 9 at 1 and 5 minutes. He was delivered by non-emergent repeat elective cesarean section. Citrobacter meningitis was confirmed on cerebrospinal fluid examination on March 3, 2009. Gram negative rods were noted in the fluid which revealed a protein of 248 with 2830 white blood cells. He was treated aggressively with antibiotics but developed obstructive hydrocephalus necessitating his ventriculoperitoneal shunting. Although Christian has a permanent and substantial mental and motor impairment, the etiology would appear to be postnatal- acquired Citrobacter meningitis and hydrocephalus. The medical records do not substantiate that Christian’s neurologic impairment resulted from either oxygen deprivation or mechanical injury in the course of labor or delivery. For this reason, I am not recommending Christian for inclusion within the NICA program. A review of the file in this case reveals that there have been no expert opinions filed that are contrary to the opinion of Dr. Willis that 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. Dr. Willis’ opinion is credited. There are no expert opinions filed that are contrary to Dr. Duchowny’s opinion that although Christian’s examination reveals findings consistent with a substantial mental and motor impairment, his neurological problems did not result from either oxygen deprivation or mechanical injury acquired in the course of labor or delivery. Dr. Duchowny’s opinion is credited.
