Opinion
Case No. 5D02-892.
Opinion filed March 28, 2003.
Administrative Appeal from the Division of Administrative Hearings.
Robert A. Hannah, Christopher C. Curry and Robin D. Black, of Hannah, Estes Ingram, P.A., Orlando, for Appellant.
Thomas E. Dukes, III, of McEwan, Martinez Dukes, P.A., Orlando, for Intervenors, Michael Geiling, D.O., Juan Ravelo, M.D., and Mid-Florida OB/GYN Specialists, Inc.
John Elliott Leighton and Patricia M. Kennedy of Leesfield, Leighton, Rubio, Mahfood and Boyers, P.A., Miami, for Appellees, Sandra Shoaf and James Shoaf.
Kelly B. Plante, of Brewton, Plante Plante, P.A., Tallahassee, for Appellee, Florida Birth-Related Neurological Injury Compensation Association.
This is an appeal of a final order issued by an administrative law judge ("ALJ") finding that Raven Shoaf ("Raven") was not subject to compensation under the Florida Birth-Related Neurological Injury Compensation Plan ("the plan"), because she is not "mentally impaired' within the meaning of the plan. We conclude that the order conflicts with the applicable law and accordingly reverse.
Raven was born at appellant's hospital on November 28, 1997. She was deprived of oxygen during birth and sustained significant and substantial injuries.
Raven's parents (the Shoafs), filed an administrative claim to determine whether their daughter qualified for coverage under the plan. The plan is designed to alleviate obstetricians' medical malpractice insurance premiums by providing an exclusive remedy for "birth related neurological injuries." § 766.301, Fla. Stat. (1995). As applied to this case, a "birth-related neurological injury" is defined as an injury "to the brain . . . of a live infant" which is "caused by oxygen deprivation occurring in the course of labor [or] delivery," "which renders the infant permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. (1995). The Shoafs alleged that Raven did not meet the criteria for coverage under the plan insofar as she had not sustained a permanent and substantial mental impairment.
Section 766.302(2), Florida Statutes (1995), in its entirety provides:
"Birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth 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. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.
At the administrative hearing, the evidence clearly showed that Raven had sustained significant physical injuries due to oxygen deprivation at birth. It was essentially undisputed that she has cerebral palsy, which refers to a group of motor disorders caused by an injury to the developing brain. She is unable to walk or talk. She has problems holding her head up and directing her gaze. She cannot crawl or even sit up without assistance. She cannot reach out and hold objects, and will not be able to use a touch screen because of her motor difficulties. She is unable to eat by mouth and must wear a diaper. The most she is able to do on her own is roll over. In short, her physical disabilities are significant and severe.
The dispute in this case concerns whether Raven has a "mental impairment" in addition to her physical impairments. Both sides acknowledged that Raven's CAT scans and MRIs clearly show that she has sustained various severe and permanent injuries to her brain. Her imaging studies show that she has damage to the "deeper structure of the brain," which includes both sides of the basal ganglia and thalmus. There was also damage to the white matter surrounding the basal ganglia (which acts as insulation), the hippocampi, both frontal lobes, both parietal lobes, the corpus callosum, and the cerebral cortex. The witnesses agreed that these injuries have the potential for far-reaching damage.
The basal ganglia is a "motor control center." The hippocampi controls memory. The thalmus is a relay station which also controls motor functions. The frontal lobes can affect behavior, attention, social development, and personality, among other things. The parietal lobes affect sensation and the ability to integrate functions.
Raven's parents presented evidence that despite her physical impairments and brain damage shown on the CAT scans, Raven is of normal or above-average intelligence. Other witnesses testified that Raven has an I.Q. as low as 20 or 30 due to her injuries and that she has no understanding of the world around her. One expert felt that her parents' belief that Raven was responsive was nothing more than wishful thinking. Nevertheless, the ALJ concluded that, despite her extensive physical limitations, Raven was not mentally impaired within the meaning of the plan and that her claim was therefore not compensable under the plan.
On appeal, appellants argue that the ALJ erred in concluding that Raven was not mentally impaired within the meaning of the NICA statutes. The question of whether Raven is "mentally impaired" within the meaning of the plan is a mixed question of law and fact. As stated in Nagy v. Florida Birth-Related Neurological Injury Compensation Association, 813 So.2d 155 (Fla. 4th DCA 2002):
"A determination of the administrative law judge as to the qualification of the claim for purposes of compensability under s. 766.309 . . . shall be conclusive and binding as to all questions of fact." § 766.311(1), Fla. Stat. (1997). An ALJ's findings of fact are reversible on appeal when they are not supported by competent substantial evidence in the record or where the agency's interpretation of the law is clearly erroneous. See § 120.68(7), (10), Fla. Stat. (1997); Carreras v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995). An ALJ's interpretation of the Plan is reviewed de novo. See Fluet v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 788 So.2d 1010 (Fla. 2d DCA 2001).
Id. at 159.
The finding that Raven is not substantially mentally impaired is inconsistent with the Florida Supreme Court's holding in Florida Birth-Related Neurological Injury Comp. Ass'n v. Florida Division of Administrative Hearings, 686 So.2d 1349 (Fla. 1997) (hereinafter referred to as the Birnie decision). The physical and mental impairments of Raven Shoaf are strikingly similar to those of the child in that case, Eric Birnie.
A comparison of the effects of the injuries between the two infants is most revealing. In both, there was damage to the basal ganglia including the surrounding white matter. In both, the child exhibited poor head control, inability to sit or stand independently, severely limited control of body movements, difficulty talking or communicating, difficulty expressing knowledge except through eye movements, facial and emotional gestures, and significantly large cognitive delays which will increase with age. In both cases, special accommodation within the class room will be required resulting in impaired intellectual development. The only positive with both Eric Birnie and Raven Shoaf is that they may have normal to above normal intellect.
Eric Birnie was deemed mentally impaired within the meaning of the NICA plan despite normal intelligence test scores because the evidence established there, as here, that as a result of his injuries, the child would: (1) not be able to translate his cognitive capabilities into adequate learning in a normal manner, and (2) suffer from drastic impairment in social and vocational development. Birnie rejects a narrow interpretation of the legislation which equates mental impairment with cognitive functioning as measured by intelligence tests irrespective of the need for special accommodations or the serious social and vocational limitations inflicted on the child as a result of the injury.
The final order in this case failed to include any justification for deviating from the legal standard approved in the Birnie decision and is entirely inconsistent with the legislative intent to provide compensation to infants who suffer birth-related neurological injuries on a no-fault basis. The test for substantial mental impairment is not whether cognitive reduction exists, but rather whether substantial accommodations are required for the exercise of cognitive functions. Mental impairment, in its plain and simple meaning, exists where, as here, the child will experience abnormal difficulties in developing and using her cognitive abilities.
It is conceivable that one can have substantial physical impairment without any mental impairment such as a person paralyzed from the waist down. In our view, the substantial accommodations must relate to the development of one's cognitive functions and not simply accommodations for physical impairments. To conclude that Raven is not mentally impaired because she has some degree of cognitive ability is absurd. Mental impairment should not be limited to impairment of cognitive functioning as measured by intelligence tests.
Examination of the undisputed facts as to the condition of Raven Shoaf leads to only one conclusion. This child is both physically and mentally impaired, and her mental impairment is substantial.
REVERSED.
COBB, W., Senior Judge, concurs.
GRIFFIN, J., dissents.
I respectfully dissent because I do not believe the Supreme Court of Florida intended in the Birnie decision to establish a narrow legal definition of "permanent and substantial mental impairment" applicable to all victims of birth-related neurological injuries. After all, the issue in Birnie was whether the NICA statute required both mental and physical impairment, or only one of the two. After arriving at its answer to the certified question, the court only briefly considered whether the administrative hearing officer's conclusion that the Birnie child was both mentally and physically impaired was supported by competent evidence. In support of his conclusion that Eric Birnie was permanently and substantially impaired, the hearing officer referenced evidence that Eric Birnie could not communicate, attend school or otherwise learn and develop intellectually without substantial accommodation and that his social and vocational development were impaired. 686 So.2d at 1353. The supreme court merely sought to determine whether the evidence adduced in that case could support the administrative law judge's conclusion that the Birnie child had suffered a permanent and substantial mental impairment as well as physical impairment. Evidence that can support a fact-finder's conclusion is far different from evidence that compels a particular conclusion. Although, in the case before us, there was evidence similar to the evidence adduced concerning Eric Birnie, the same conclusion is not fore-ordained. The majority errs in saying that it is.
Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Div. of Admin. Hearings, 686 So.2d 1349 (Fla. 1997).
Under the rule established by the majority in this case, any child whose physical injuries cause the child "not to be able to translate [normal or above normal] cognitive capabilities in a normal manner" or who is drastically impaired in social or vocational development, the factors identified by the Birnie court, are, ipso facto, permanently and substantially mentally impaired, as a matter of law. A hearing has no purpose beyond determining if the child at issue is like the Birnie child in these respects.
What this means is that Raven Shoaf and all other similarly injured Florida children have no right to an individualized determination of mental impairment but are bound by the work of the lawyers for Eric Birnie, whose goal was to show that he was mentally impaired.
In this case, a two-day hearing was held before an administrative law judge. Each party offered testimony from expert and lay witnesses and documentary and videotaped evidence. The administrative law judge issued a thorough final order, forty-nine pages in length, setting forth detailed findings and ultimately concluding that:
The medical records and other proof, including the testimony of the various healthcare providers and the videos offered by the parties have been carefully considered. So considered, it must be resolved that the proof does not permit a conclusion to be drawn, with any sense of confidence, that, more likely than not, Raven is permanently and substantially mentally impaired.
Although the injuries in this case share similarities with the injury suffered by the child in the Birnie case, the administrative law judge in this case was not bound to find mental impairment. The judge was entitled to weigh the evidence presented, to believe or disbelieve any or all of it and to reach a decision, so long as supported by competent evidence. The NICA plan is in derogation of the common law; it must be narrowly construed. 686 So.2d at 1354. The legislature did not, as it could have done, define "substantial mental impairment" nor did it identify any physical limitations characteristic of such injuries that would cause or equate to mental impairment. NICA bore the burden of persuasion in this case that Raven was "substantially mentally impaired" and its evidence was not persuasive to the administrative hearing officer. I would affirm.