Findings Of Fact Adam was born on June 11, 2018, at HealthPark Medical Center, in Fort Myers, Florida. Adam was a single gestation and his weight at birth exceeded 2500 grams. Obstetrical services were delivered by a participating physician, Jane A. Daniel, M.D., in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital, HealthPark Medical Center. As set forth in greater detail below, the unrefuted evidence establishes that Adam did not sustain a “birth-related neurological injury,” as defined by section 766.302(2). Donald Willis, M.D., a board-certified obstetrician specializing in maternal-fetal medicine, was retained by Respondent to review the pertinent medical records of Ms. Johnson and Adam and opine as to whether Adam sustained an injury to his brain or spinal cord caused by oxygen deprivation or mechanical injury that occurred during the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital. In his affidavit, dated December 11, 2020, Dr. Willis summarized his opinions as follows: In summary, an abnormal FHR pattern developed during labor and resulted in a depressed newborn. Cord blood pH was 6.9 with a base excess of -18.6. Seizures began shortly after birth. The newborn hospital course was complicated by multi-system organ failures, consistent with birth-related oxygen deprivation. MRI on DOL 4 was suggestive of HIE, but findings improved with follow-up MRI. There was an apparent obstetrical event that resulted in oxygen deprivation to the brain during labor, delivery and continuing into the immediate post-delivery period. The oxygen deprivation resulted [in] a potential for brain injury, but the follow-up normal MRI suggests that no actual brain injury occurred. Respondent also retained Michael S. Duchowny, M.D., a pediatric neurologist, to review the medical records of Ms. Johnson and Adam, and to conduct an Independent Medical Examination (IME) of Adam. The purpose of his review and IME was to determine whether Adam suffered from a permanent and substantial mental and physical impairment as a result of an injury to the brain or spinal cord caused by oxygen deprivation or mechanical injury in the course of labor, delivery, or resuscitation in the immediate post- delivery period. Dr. Duchowny reviewed the pertinent medical records and, on October 20, 2020, conducted the IME. In his affidavit, dated December 16, 2020, Dr. Duchowny summarized his opinions as follows: In summary, Adam’s evaluation reveals findings consistent with a substantial motor but not mental impairment. He evidences a spastic diplegia, but with relative preservation of motor milestones, and age-appropriate receptive and expressive communication. Adam additionally has a severe behavior disorder, and has a sleep disorder and attentional impairment. His seizures are in remission. Review of the medical records reveals that Adam was the product of a 40 week gestation and was delivered vaginally with Apgar scores of 3, 6, 7 and 6 at one, five and 10 minutes. Terminal meconium was noted at delivery. Adam initially required positive pressure ventilation until his respirations were subsequently managed with nasal CPAP. His cord gas pH was 6.917 with a base excess of – 18.6. Adam developed seizures in the NICU and was intubated on the first day of life for apnea. Multiple seizures were documented on video/EEG monitoring. He was oliguric on the first day of life and had elevated liver function studies. An elevated lactic acid level was noted and there was a borderline elevation of DIC parameters. Adam was enrolled in a body hypothermia protocol on the first day of life. His blood pressure was maintained with dopamine. A head ultrasound on June 11 at 22:23 (DOL#2) was unremarkable. A brain MR imaging study performed on June 15, (DOL#5) revealed multifocal areas of restricted diffusion. Follow-up brain MR imaging study on July 5th revealed near-complete resolution of the previously observed diffusion abnormalities. A third MR imaging study obtained one month ago confirms the resolution of the DWI findings noted on the first brain MR imaging study. In conclusion, Dr. Duchowny opined that Adam does not have a substantial mental impairment, and, therefore, did not recommend that Adam be considered for inclusion in the Plan. The undisputed findings and opinions of Drs. Willis and Duchowny are credited. The undersigned finds that Adam did not sustain 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 rendered him permanently and substantially mentally and physical impaired.
The Issue The issue in this case is whether Ailani Sanchez suffered a birth-related injury as defined by section 766.302(2), Florida Statutes, for which compensation should be awarded under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan).
Findings Of Fact Ailani Sanchez was born a live infant at 5:46 a.m., on October 29, 2015, at Lakeland Regional Medical Center. Ailani was a single gestation, weighing 2,950 grams at birth. Ailani was delivered via cesarean section for suspected abruption/velamentous insertion of cord by Dr. Zollicoffer who was a NICA participating physician on October 29, 2015. Ailani's Apgar scores were 2/4/4. Upon delivery, she was floppy and pale and had no respiratory effort. Pulse oximetry was within target saturations for age and her heart rate remained 100 or greater. She was intubated at seven minutes of age and transferred to the Neonatal Intensive Care Unit (NICU). No seizures were noted. Ailani had increasing spontaneous respiratory effort and whole body cooling was started prior to her transfer to St. Joseph's Hospital NICU on October 29, 2015. Upon admission to St. Joseph's Hospital on October 29, 2015, Ailani was lethargic with decreased reactions to stimuli, but appeared pink and well perfused. Neurologically, she was noted to be improving; she was breathing spontaneously and moving all extremities to stimuli. After a complicated newborn hospital course, Ailani was ultimately discharged from St. Joseph's Hospital on January 6, 2016. At the time of her discharge, she was noted to be feeding by mouth and was overall gaining weight. Prior to her discharge, an EEG on October 30, 2015, showed seizures predominantly on the right side of her brain and generalized brain dysfunction. A brain MRI obtained on November 5, 2015, revealed restricted diffusion related to acute infarction in the right temporal occipital region with laminar necrosis. Additional laminar necrosis in the frontal lobes and insular cortex bilaterally was noted. An EEG on November 16, 2015, was consistent with nonspecific cerebral dysfunction with occasional sharp waves in the temporal parietal regions bilaterally with no evidence of seizures and irregular slow waves with slightly more predominance to the right. Ailani was seen for a newborn visit by her pediatrician, Dr. Bou Salvador, on January 7, 2016. Nutritionally, she was noted to be breast feeding adequately, with supplements with formula. Developmentally, she was noted to have equal movements of all extremities and follow midline. She responded to a bell and was able to lift her head while lying on her stomach. Examination of her spine, extremities, and peripheral pulses were all normal. Neurologically, she was reportedly normal, with normal strength, tone, and reflexes reported. On January 19, 2016, Ailani was evaluated at All Children's Outpatient Care upon referral by St. Joseph's Hospital secondary to hypoxic ischemia. The occupational therapist's impression included decreased bilateral coordination, decreased developmental milestones, decreased gross motor skills, decreased play skills, decreased strength, and fine motor deficits. Skilled therapy was identified to have the potential to improve her functional level in the areas of manipulation. It was recommended that Ailani undergo 30 minutes of occupational therapy once a week for six months. Her prognosis for achieving goals established by her therapist was noted to be excellent. On February 4, 2016, Ailani was evaluated for participation in, and deemed eligible for, the Early Steps Program. On February 18, 2016, Ailani was evaluated by Dr. Qureshi at Kids Neurology. Developmentally, she was noted to smile and coo and focus. It was noted that Ailani had three seizures at the age of one day old, but none since. At this time, she was taking Keppra and Phenobarbital, from which she was being weaned. A sleep deprived EEG, obtained since the last visit, was normal. She was noted to be doing very well neurologically. Her physical examination revealed she was lifting her chest and head with her arms extended. Early head control with bobbing motion was noted. She was noted to say "aah," smile, and follow pass midline. The plan noted at this time was to continue to wean and discontinue Keppra and Phenobarbital. Ailani was again seen by Dr. Bou Salvador on March 4, 2016, for her four-month well visit. Nutritionally, she was noted to be feeding with formula adequately. She had been started on solids for one to two feeds. Developmentally, she was noted to squeal and laugh. She was able to follow 180 degrees. She turned to void and was able to hold her head up 90 degrees while lying on her stomach. She was able to sit with support with her head up. She was able to pull to sit with no head lag. She could bring her hands together and had no persistent fist clenching. Her physical examination was normal. Her neurological examination was also normal, with normal strength, tone, and reflexes reported. Ailani was again seen by Dr. Bou Salvador on May 4, 2016, for her six-month well visit. Nutritionally, she was noted to be breast feeding adequately. Developmentally, she was noted to be social and smiling responsively. Adaptive equal movements of all extremities and the ability to follow midline were noted. She could respond to a bell and was able to lift her head while lying on her stomach. A physical examination was normal. A neurological examination was also normal, with normal strength, tone, and reflexes reported. On May 24, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned from her seizure medication and had had no seizures for the last three months. She was noted to be doing very well neurologically. Physically and developmentally, she was noted to have no head lag, to be rolling over, to have her chest up in a prone position, to be trying to crawl, to be lifting her head, and to be sitting briefly unsupported. She was also noted to be leaning forward on her hands, engaging in bounce activity, supporting most of her weight, reaching out and grasping large objects, transferring from hand to hand, babbling, enjoying mirror, and using polysyllable sounds. She was noted to be feeding herself. Dr. Qureshi reported that Ailani was in occupation therapy but that it was on hold since her evaluation was "pretty unremarkable." Ailani was noted to be progressing well for her age and was receiving Early Steps intervention once a week at home. She was given a prescription of Phenobarbital for use only if a seizure occurred. On June 18, 2016, Ailani was seen by Dr. Frances Arrillaga at Pediatric Cardiology Associates for a cardiology consultation secondary to a history of pulmonary hypertension, and an echocardiogram that showed a patent foramen ovale (PFO). Ailani's mother reported that since her discharge from St. Joseph's, she was doing well. Cyanosis, difficulty breathing and unexplained diaphoresis and feeding problems, were denied. An echocardiogram on this date showed a PFO, with otherwise normal anatomy. There were normal right ventricular (RV) pressures, normal left ventricular (LV) size and function. No cardiovascular restrictions were given and she was told to return in one year for further follow up. Ailani was again seen by Dr. Bou Salvador on August 4, 2016, for her nine-month well visit. Nutritionally, she was reported to be feeding adequately. She was feeding 2 to 3 varieties of solid foods with no problems and was starting with a cup for water and juice. Developmentally, she was reported to be playing pat-a-cake and looking for fallen objects. She could bang two cubes in her hand with thumb-finger grasp. She could say "dada" and "mama" and walk while holding on. She was also noted to be crawling and standing momentarily. Her physical and neurological examinations were noted to be normal, with normal strength, tone, and reflexes noted. An August 22, 2016, a progress note from Early Intervention reflects that Ailani was babbling two syllables together, was happy, pulling to a stand and cruising along furniture, and was responding to her name. Attendance at Early Intervention was noted to be consistent and once a week. Ailani was again seen by Dr. Bou Salvador on November 3, 2016, for her 12-month well visit. Nutritionally, she was noted to be eating two to three varieties of solid foods with no problems and was feeding herself finger foods. Developmentally, she was reported to be playing pat-a-cake and drinking from a cup. She was able to bang two cubes held in her hands with thumb-finger grasp. She was saying "mama" and "dada," imitated speech sounds, could say three words other than "mama" and "dada," and understood "no." She was able to walk while holding on, and was reported to stand alone and walk well. A physical examination revealed normal extremities. A neurologic examination was also normal, with normal strength, tone, and reflexes reported. On November 21, 2016, Ailani returned to Dr. Qureshi at Kids Neurology. It was noted that Ailani had been weaned off medications six months earlier and had no seizure activity since. She was noted to be doing very well. It was noted that no therapy was being provided at this time, although she was evaluated for occupational therapy but did not qualify for it. Developmentally, she was noted to be walking with one hand held, rising independently, taking several steps, getting to sitting, pulling to stand, standing for two seconds, saying a few words besides "mama" and "dada," playing ball game, making postural adjustment to dressing, waiving "bye bye," and indicating what she wants. She was noted to have pincer grasp, releasing objects to others when grabbed, and banging two things. Dr. Qureshi noted "she is doing amazing right now." A December 24, 2016, emergency room record (for a cough/choking episode after eating a piece of Dorito) from Florida Hospital Tampa reflects that Ailani had not had seizures since birth, and had been off Keppra and Phenobarbital for almost a year. A physical examination revealed an active, well- developed, and well-nourished child. Neurologically, she was noted to be awake, alert, and interacting with family and staff. She was also noted to be active and playful. An Early Intervention progress note from February 15, 2017, reflects Ailani had age-level play skills, could communicate using vocalizations and some single words, could follow routine directions, and was independent with walking and floor transfers. Good progress was noted to be made, many goals were reported met, and the parents decided to reduce services to one time per month. On January 30, 2017, Ailani was reevaluated for participation in Early Steps. It was noted that Ailani's mother had no concerns at this time. The report notes that Ailani liked the slide, liked to kick the ball, liked to play with her siblings and cousins, and that she is very curious. No hearing or vision concerns were noted. It was reported that many of her goals had been met, and that Ailani was using a variety of vowels and consonants, identifying at least three family members when named, that she was saying a variety of words, and was using a sign for "more food." Ailani was noted to still be eligible for Early Steps secondary to her diagnosis of hypoxic ischemic encephalopathy. Ailani was seen by Dr. Bou Salvador on March 28, 2017, for her 16-month well visit. She was noted to have good eating habits and a good appetite. No mealtime problems were reported, and she was noted to be eating solid foods with no problems. She was noted to have socially appropriate behavior for her age. She was talking well and was able to balance on one foot for five seconds, could throw a ball overhead, and pedal a tricycle. Her orthopedic and neurologic examinations were normal, with normal strength, tone, and reflexes reported. At the request of NICA, Donald C. Willis, M.D., who specializes in obstetrics and gynecology and maternal-fetal medicine, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G. In his report dated August 2, 2017, which was admitted into evidence without objection, Dr. Willis noted in pertinent part that Ailani's mother was cramping when she presented to the hospital, and was three centimeters dilated with suspected amniotic membranes ruptured. Contractions were noted to be occurring occasionally. Medical records indicated the presence of late decelerations on admission, which progressed to bradycardia, for which an immediate Cesarean section was recommended. Dr. Willis observed that Ailani was depressed at birth with Apgar scores of 2/4/4, and that cord blood gas was abnormal with a pH of only 6.97. He further noted that Ailani was floppy, pale, and had poor perfusion; that bag and mask ventilation was initiated, followed by intubation for continued respiratory distress; that hypotension was present and required IV fluids; that the initial blood count was low; and that Ailani remained acidotic after birth with a pH of 6.7 and a base excess of -27 at 90 minutes after birth. Dr. Willis further noted Ailani's hospital course consistent with her medical records and ultimately opined that “there was an obstetrical event that resulted in loss of oxygen to the baby's brain during labor, delivery and continuing into the immediate post delivery period. The oxygen deprivation resulted in brain injury.” Dr. Willis was unable to comment about the severity of the injury, however. At the request of NICA, Laufey Y. Sigurdardottir, M.D., who is board certified in neurology and specializing in pediatric neurology, reviewed the medical records included in the Stipulated Record as Joint Exhibits A through G, and performed a thorough examination of Ailani on October 18, 2017. Dr. Sigurdardottir's summary of Ailani's medical history, along with her findings upon a full physical and neurological examination, is documented within her written report, which was admitted into evidence without objection. Dr. Sigurdardottir noted that Ailani was a non-dysmorphic, interactive toddler with normal facial features and apparently intact vision. No abnormalities in Ailani's extremities were noted other than occasional toe walking. Neurologically, Ailani was noted to be interactive, curious, and exhibiting normal joint attention. Ailani exhibited pretend play with a stethoscope, said the word "mom" a few times, pointed to her mouth when asked to do so, enjoyed playing with a tablet computer, shook her head for "no," exhibited understandable words, and exhibited no autistic features. Cranial nerves were intact, facial grimacing was symmetric and normal, and hearing seemed intact. No drooling was noted. Muscle tone was noted to be normal, strength was full and symmetric and deep tendon reflexes were symmetric and within normal limits. Gross and fine motor skills were noted to be within normal limits for age. Overall, Dr. Sigurdardottir determined that despite her initial abnormal neurological examination, and delays in early development, Ailani's current neurologic and developmental functioning is age-appropriate. She went on to opine in relevant part that, Ailani is not found to have substantial delays in motor and mental abilities at this time . . . . In review of available documents, there is evidence of impairment consistent with a neurologic injury to the brain or spinal cord acquired due to oxygen deprivation . . . . The prognosis for full motor and mental recovery is excellent and the life expectancy is full In light of evidence presented I believe Ailani does not fulfill criteria of a substantial mental and physical impairment at this time. I do not feel that Ailani should be included in the NICA program. Neither Petitioner nor Intervenor submitted or introduced into evidence any expert reports rebutting the opinions of Dr. Willis and/or Dr. Sigurdardottir.
Findings Of Fact Bentley Bragg was born on May 9, 2013, at Winnie Palmer Hospital located in Orlando, Florida. Bentley weighed 4,233 grams at birth. Donald Willis, M.D. (Dr. Willis), was requested by NICA to review the medical records for Bentley. In a medical report dated July 23, 2015, Dr. Willis opined as follows: Delivery was complicated by a shoulder dystocia, resulting in about a one minute delay in delivery. The baby was eventually delivered after extension of an episiotomy and rotation of the posterior arm. Birth weight was 4,233 grams (9 lbs 5 oz’s). This would be large-for-gestational age (LGA). Apgar scores were 3/8. Bag and mask ventilation was given for about 80 seconds. The baby had no movement of the left arm. Left brachial plexus injury was diagnosed. Newborn exam and hospital course were otherwise benign. The baby had significant bruising and was evaluated by Hematology and monitored for bilirubin levels. There were not EEG’s or imaging studies of the brain. In summary, delivery of the LGA baby was complicated by a shoulder dystocia which resulted in a brachial plexus injury. Hospital and medical records did not suggest oxygen deprivation or brain injury. MRI of the cervical spine after hospital discharge was reported as a “normal cervical spine.” 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 post delivery period. NICA retained Laufey Y. Sigurdardottir, M.D. (Dr. Sigurdardottir), a pediatric neurologist, to examine Bentley and to review his medical records. Dr. Sigurdardottir examined Bentley on September 2, 2015. In a medical report regarding her independent medical examination of Bentley, Dr. Sigurdardottir opined as follows: Overall assessment, here we have a 2-year 4- month-old male with a severe upper brachial plexus injury, which has required muscle and tendon transfer surgery because of an increasing deformity of shoulder and shoulder contraction. He does have fairly sustained functional abilities, although not complete. Bentley also has an expressive language delay that is not felt to relate to his physical brachial plexus injury which definitely is birth related. Mild depression at birth with an Apgar score of 3 did show prompt recovery and a cord pH that was within normal limits. Result as to question 1: The child is found to have a permanent physical impairment, but no obvious mental impairment. His mild expressive language delay does not substantiate a profound mental impairment. * * * Due to the fact that Bentley’s disability only relates to physical impairment and no clear mental impairment related to birth- related neurologic injury can be found, I am not recommending Bentley to be included into the Neurologic Injury Compensation Association (NICA) program and would be happy to answer additional questions. 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 or spinal cord during labor, delivery or the immediate post-delivery period. Dr. Willis’ opinion is credited. There have been no expert opinions filed that are contrary to Dr. Sigurdardottir’s opinion that Bentley is not found to have a substantial mental impairment. Dr. Sigurdardottir’s opinion is credited. Moreover, in response to an interrogatory served to Petitioner by NICA, Petitioner acknowledged that she does not contend that Bentley suffers from a permanent and substantial mental impairment.
The Issue At issue is weather Tyler Anthony Carter, a minor, qualifies for coverage under the Florida Birth-Related Neurological Injury Compensation Plan (Plan).
Findings Of Fact Stipulated facts Victoria Knight Carter and Roy Carter are the natural parents of Tyler Anthony Carter, a minor. Tyler was born a live infant on February 7, 2005, at North Shore Medical Center, a licensed hospital located in Miami, Florida, and his birth weight exceeded 2,500 grams. Obstetrical services were delivered at Tyler's birth by Ramon Hechavarria, 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 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. Here, the proof demonstrated that Tyler's delivery was complicated by a shoulder dystocia, which caused a brachial plexus injury, that resulted in a weakness (an Erb's palsy) in the left upper extremity. Otherwise, Tyler was not shown to suffer any injury at birth. To address the nature and significance of Tyler's injury, NICA offered the testimony of Michael Duchowny, M.D., a physician board-certified in pediatrics, neurology with special competence in child neurology, and clinical neurophysiology.1 (Respondent's Exhibit 1, deposition of Dr. Duchowny). Dr. Duchowny evaluated Tyler on October 17, 2007, and reported the results of his physical and neurological evaluation, as follows: PHYSICAL EXAMINATION reveals an alert, cooperative 2 1/2-year-old, well-developed and well-nourished toddler. Tyler[] weighs 29 pounds. His skin is warm and moist. There are no dysmorphic features or neurocutaneous stigmata. Head circumference measures 49.2 centimeters, which is within standard percentiles for age. The fontanels are closed. There are no cranial or facial anomalies or asymmetries. The neck is supple without masses, thyromegaly or adenopathy. The cardiovascular, respiratory, and abdominal examinations are unremarkable. Tyler's NEUROLOGICAL EXAMINATION reveals an alert and sociable toddler. His speech is fluent and appropriately articulated. He maintains an age appropriate stream of attention. His social skills are appropriately developed for age. Cranial nerve examination is unremarkable. The extraocular movements are fully conjugate in all planes and the pupils are 3 mm and briskly reactive to direct and consensually presented light. A brief funduscopic examination is unremarkable. There are no significant facial asymmetries. The uvula is midline and the pharyngeal folds are symmetric. The tongue is moist and papillated. Motor examination reveals an asymmetry of the upper extremities. There is slightly diminished muscle bulk in the distal left upper extremity. Tyler is unable to raise the left arm past neutrality. He tends to posture the left arm with flexion at the elbow and wrist. Tyler cannot fully supinate the left hand. He can build a tower with using either hand and has bimanual dexterity. However, he demonstrates a consistent right hand preference. There are no fixed contractures. The deep tendon reflexes are 2+ in the lower extremities and the right upper extremity but 1+ at the [left] biceps. The sensory examination is intact to withdrawal of all extremities to stimulation. The neurovascular examination reveals no cervical, cranial or ocular bruits and no temperature or pulse asymmetries. In SUMMARY, Tyler's neurological examination reveals a mild left Erb's palsy, which was likely acquired during delivery due to traction on the brachial plexus. In contrast, there are no abnormalities referable to the right upper extremity or the lower extremities. Tyler's mental functioning is appropriate for age level. (Joint Exhibit 1, Report of Dr. Duchowny, dated October 17, 2007; Respondent's Exhibit 1, pp. 15 and 16). An Erb's palsy, as evidenced by Tyler, is a weakness of an upper extremity due to damage to the nerve roots of the left brachial plexus, a peripheral nerve injury, and does not represent an injury to the brain or spinal cord (the central nervous system). (Respondent's Exhibit 1, pp. 10 and 11).2 Moreover, the physical impairment Tyler suffers is mild, as opposed to substantial, and there is no compelling evidence of mental impairment, much less substantial mental impairment. (Respondent's Exhibit 1, pp. 8-10). Ackley v. General Parcel Service, 646 So. 2d 242, 245 (Fla. 1st DCA 1994)("The determination of the cause of a non-observable medical condition, such as a psychiatric illness, is essentially a medical question."); 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."). Consequently, while Tyler may have suffered a mechanical injury, permanent in nature (to his left brachial plexus) during the course of birth, he does not qualify for coverage under the Plan.
