Florida/Georgia Personal Injury & Workers Compensation

...Birth-Related Neurological Injury Compensation Association, which administers the plan. Id. §§ 766.303, 766.305, 766.315. An administrative law judge has the exclusive jurisdiction to determine whether a claim is compensable under the plan. Id. § 766.304....

...If the administrative law judge determines that a claim is compensable under the no-fault plan, then “no civil action” for the covered injury “may be brought or continued in violation of the exclusiveness of remedy provisions” in the Compensation Act. Id. § 766.304....

...§ 766.31. If the administrative law judge determines that a claim is not compensable under the no-fault plan, then representatives of the injured infant may “pursu[e] any and all civil remedies available under common law and statutory law.” Id. § 766.304. Awards paid through the no-fault compensation plan are funded by assessments on physicians and hospitals that provide obstetric services....

...cable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery." Id. at 309. *626 In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections 766.301, 766.304, and 766.316, as follows: An act relating to medical malpractice insurance; amending s. 766.301, F.S.; clarifying legislative intent; amending s. 766.304, F.S.; providing exclusive jurisdiction of administrative law judges in claims filed under ss....

...claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault. The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding. Section 2. Section 766.304, Florida Statutes, is amended to read: 766.304 Administrative law judge to determine claims.— The administrative law judge shall hear and determine all claims filed pursuant to ss....

...requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(8)(b) or when notice is not practicable. Section 6. The amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth....

...ermine whether a claim fell under NICA. The legislature countered that conclusion by adding to section 766.301 the provision that "whether such claims are covered by this act must be determined exclusively in an administrative proceeding." Likewise, section 766.304 was amended to provide that "the administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable." The appellants urge, and we agree, that the legislature, by amending section 766.304 to grant exclusive jurisdiction to an administrative law judge to determine whether a claim filed under this act is compensable, clearly meant to correct the dual jurisdiction problem that existed after the McKaughan decision....

...The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim. Notably, the determination of the adequacy of notice is not excluded from the duties of the administrative law judge. Section 766.304 states that the administrative law judge shall hear all claims and shall exercise the full power and authority granted that is necessary to carry out the purposes of the section....

...tion in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. Id. § 766.302(2). Claims filed under the NICA plan are heard by an administrative hearing officer, id. § 766.304, who must determine whether the injury claimed is a birth-related neurological injury....

...Further, we see nothing in the legislative scheme that indicates the legislature did not intend to create a straightforward administrative system to handle claims for compensation filed by persons who assert they are entitled to NICA benefits. Petitioners also assert that the language of section 766.304, which mandates that the administrative officer "shall hear and determine all claims," reflects the legislature's intent that the administrative officer have exclusive jurisdiction to determine the nature of an infant's injury....

...First, section 766.301(2) expressly states that the NICA plan "shall apply only to birth-related neurological injuries." As is already apparent in this case, the McKaughans assert that their son has not suffered a "birth-related neurological injury," and is not entitled to NICA benefits. Second, section 766.304 provides: The hearing officer shall hear and determine all claims filed pursuant to ss....

...at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs."). A claimant may not bring or maintain a civil suit in violation of NICA's exclusive remedy provision. § 766.304, Fla....

...er NICA. Id. at 627-28. In reaching this conclusion, the Fifth District first presented the language of the 1998 amendments as follows: In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections 766.301, 766.304, and 766.316, as follows: ....

...claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault. The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding. Section 2. Section 766.304, Florida Statutes, is amended to read: 766.304 Administrative law judge to determine claims....

...requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(8)(b) or when notice is not practicable. Section 6. The amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth....

...he legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim. Notably, the determination of the adequacy of notice is not excluded from the duties of the administrative law judge. Section 766.304 states that the administrative law judge shall hear all claims and shall exercise the full power and authority granted that is necessary to carry out the purposes of the section....

...that notice under section 766.316 was or was not properly given." All Children's Hosp., Inc., 863 So.2d at 456. Instead, we agree with Judge Kahn's analysis of this question in Tabb, 880 So.2d 1253, where he wrote: The ALJ's authority derives from section 766.304, Florida Statutes (2001): [17] The administrative law judge shall hear and determine all claims filed pursuant to ss....

...If either question is answered in the negative, the injury is not compensable. Since the adoption of the 1998 amendments, NICA is very clear that the determination of whether an injury is compensable is exclusively within the province of the ALJ, see § 766.304, Fla....

...Insofar as those amendments addressed the issue of the jurisdiction of the ALJ, they simply made clear that—contrary to the holding in McKaughan —the ALJ "has exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable." § 766.304....

...If the ALJ determines that a claim is compensable but the potential claimant desires to forgo compensation under NICA and to pursue a civil action for tort remedies, a determination must then be made concerning whether that civil action is "in violation of the exclusiveness of remedy provisions of s. 766.303." § 766.304....

...ed by the filing of a NICA claim. See section 766.306, Fla. Stat. (1997). [13] See § 766.301(1)(d), Fla. Stat. (Supp.1998) ("The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding."); § 766.304, Fla....

...does not apply. . . . As established law provides, an ALJ must have jurisdiction to determine whether the ALJ has jurisdiction.") (citations omitted); see discussion of Judge Kahn's analysis in part II.B.3, infra. [17] The 1998 and 2001 versions of section 766.304 are identical....

...man rights, safety, or property." § 766.303(2). *856 Claims filed under the Plan are heard and determined by an administrative hearing officer who must schedule an expedited hearing at which the claimant and the Association are mandatory parties. §§ 766.304; 766.307....

...laims to hear and determine a claim and to "exercise the full power and authority granted to him with respect to workers' compensation claims, as necessary, to carry out the purposes of [the Plan]." Ch. 88-1, § 63, at 175, Laws of Fla. (codified at § 766.304, Fla....

...aring officer's jurisdictional power, flow exclusively from the statutes creating the Plan. See Travelers Ins. Co. v. Sitko, 496 So.2d 920 (Fla. 1st DCA 1986). In that regard, the Plan clearly contemplates that a hearing officer's jurisdiction under section 766.304 is limited to determining and hearing all claims filed pursuant to the Plan....

...circumstances, casualty insurance companies. § 766.314(5)(b)(c). [3] In 1993, the Plan was amended to repose this authority in an administrative hearing officer. Ch. 93-251, §§ 2, 3, at 2477, Laws of Fla. (codified as amended at §§ 766.302(4), 766.304, Fla....

...Appellees respond that the ALJ did not exceed his authority in deciding the consequences of appellants' acceptance of Plan benefits on their right to obtain a civil recovery in their medical malpractice action. Arguing that the ALJ did nothing more than recite the applicable law, appellees cite section 766.304, Florida Statutes (1999), which provides: If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provision of s....

...tion outside the range of discretion delegated to it by law. Appellants argue that the ALJ exceeded his authority by concluding in his final order that their acceptance of Plan benefits would prohibit them from pursuing their civil action. [4] While section 766.304 grants exclusive jurisdiction to the ALJ to determine whether a claim is compensable under the Plan, there is nothing in this statutory scheme that gives the ALJ authority to determine the impact of its compensability findings upon a claimant's common law rights and remedies. In O'Leary v. Florida Birth-Related Neurological Injury Compensation Ass'n, 757 So.2d 624, 627-28 (Fla. 5th DCA 2000), the fifth district explained that the legislature, by amending section 766.304, expressed its clear intent that the administrative law judge is to "determine all matters relative to a claim." Id....

...ve law judge determined whether the claim was compensable under the Florida Birth-Related Neurological Injury Compensation Act [NICA], sections 766.301-.316, Florida Statutes (Supp.1998). We grant the petition. Pursuant to sections 766.301(1)(d) and 766.304, Florida Statutes (Supp.1998), [1] *1000 an administrative law judge, not the circuit court, has exclusive jurisdiction to determine whether a claim filed under NICA is compensable....

...Accordingly, we grant the petition for writ of certiorari quashing the order denying the motion to abate. We remind the trial court that it was obligated to follow O'Leary because neither the Supreme Court of Florida nor this Court had decided this precise issue subsequent to the 1998 amendments of sections 766.301(1)(d) and 766.304....

...Anderson, 746 So.2d 525, 526 (Fla. 2d DCA 1999), review granted, 760 So.2d 945 (Fla.2000). As a result of our decision, we do not address the alternative petition filed by the petitioners. Petition for writ of certiorari granted. NOTES [1] In 1998, sections 766.301(1)(d) and 766.304, Ch. 98.113, were amended. Section 766.301(1)(d) was amended to add the following language: "The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding." Section 766.304 was amended, in part, to add the following language: The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable....

...8, 1988. See §§ 766.301-.316, Fla. Stat. (Supp.1988). The version of the plan applicable here is found in sections 766.301 through 766.316, Florida Statutes (1997), and in amendments to the 1997 provisions *452 as set forth in sections 766.301 and 766.304, Florida Statutes (Supp.1998)....

...Statutory Provisions Governing the Authority of ALJs Under NICA From its inception, NICA was designed to provide compensation for covered injuries through an administrative process. NICA has always provided that an ALJ "shall hear and determine all claims filed pursuant to" its provisions. § 766.304, Fla....

...ition of this statement: "The issue of whether such [birth-related neurological injury] claims are covered by this act must be determined exclusively in an administrative *455 proceeding." § 766.30(1)(d), Fla. Stat. (Supp.1998). The 1997 version of section 766.304 was also amended by the addition of language including the following: The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable....

...766.309 have been made by the administrative law judge. If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303. § 766.304, Fla....

...If either question is answered in the negative, the injury is not compensable. Since the adoption of the 1998 amendments, NICA is very clear that the determination of whether an injury is compensable is exclusively *456 within the province of the ALJ, see § 766.304, Fla....

...Insofar as those amendments addressed the issue of the jurisdiction of the ALJ, they simply made clear that—contrary to the holding in McKaughan —the ALJ "has exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable." § 766.304....

...If the ALJ determines that a claim is compensable but the potential claimant desires to forgo compensation under NICA and to pursue a civil action for tort remedies, a determination must then be made concerning whether that civil action is "in violation of the exclusiveness of remedy provisions of s. 766.303." § 766.304....

...as required by law and in conformance with this opinion. Reversed and remanded; conflict certified. NORTHCUTT and STRINGER, JJ., concur. NOTES [1] As will be discussed in more detail later in this opinion, the 1998 amendments to sections 766.301 and 766.304 added language emphasizing that a determination as to the compensability of a NICA claim is a matter within the exclusive jurisdiction of an administrative law judge....

...CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000) ("Subject matter jurisdiction may not be conferred upon the court by the consent of the parties, and the lack of subject matter jurisdiction may be raised for the first time on appeal."). The ALJ's authority derives from section 766.304, Florida Statutes (2001): The administrative law judge shall hear and determine all claims filed pursuant to ss....

...NOTES [1] Sections 766.301-.316, Florida Statutes (1998) establish NICA, a limited no-fault administrative compensation system for some birth-related neurological injuries pursuant to section 766.302(2). A proceeding under the Act forecloses a tort action unless the injury is found to be non-compensable according to section 766.304, and it allows a form of immunity from suit for participating providers in some circumstances under section 766.303(2)....

...[2] ECMO is a treatment method for critically ill newborns whose lungs are unable to provide sufficient oxygenation of the blood. ECMO therapy acts as an artificial heart and lung to oxygenate the baby's blood. [3] An ALJ is not required to consider expert testimony on any issue if it amounts to a conclusion of law. Section 766.304 grants an ALJ exclusive jurisdiction to determine whether a claim is compensable under the Plan....

...Braniff, 696 So.2d 308, 309 (Fla.1997); see also § 766.316 ("Each hospital with a participating physician on its staff and each participating physician ... shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries."). Pursuant to section 766.304, the ALJ "shall hear and determine all [NICA] claims." Section 766.309 more specifically provides: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a) Whether the injury claimed is a birth-related neurological injury....

...cluded from obtaining NICA benefits because they had settled a medical malpractice claim against the doctor and hospital involved in Loren's birth. The sole issue on appeal is whether it was error to retroactively apply the July 1, 1998 amendment to section 766.304, Florida Statutes, barring the recovery of NICA benefits where, as here, there has previously been a civil recovery....

...Therefore, we reverse the administrative law judge's summary order dismissing the petition for benefits under the Plan and remand for the resolution of factual issues which will determine NICA's liability. Gilbert, 724 So.2d at 690-92. In an effort to prevent the recurrence of the Gilbert situation, the Legislature amended section 766.304 in 1998 to preclude both a civil and a NICA claim recovery: The administrative law judge shall hear and determine all claims filed pursuant to ss....

...(emphasis added). [5] In doing so, the Legislature *153 expressed its clear intent that the amendment be retroactively applied to any NICA claim filed on or after July 1, 1998, regardless of when the child was born: Section 6. The amendments to section 766.301 and 766.304, Florida Statutes, shall take effect July 1, 1998, and shall apply only to claims filed before or after that date and to that extent shall apply retroactively regardless of the date of birth. Ch. 98-113, § 6, at 525, Laws of Fla. The 1998 amendment to section 766.304, if applicable to the Romines' claim, significantly changes their ability to recover under NICA....

...See Gilbert, 724 So.2d at 690. However, the 1998 amendment, if applicable, bars the Romines from receiving NICA benefits because they recovered a settlement in their medical malpractice case. The Romines argue that a retroactive application of the 1998 amendment to section 766.304 would materially alter their substantive rights to receive benefits under NICA. NICA asserts that the ALJ correctly applied the 1998 amendment to section 766.304 because it is clear that the Legislature intended the amendment to section 766.304 to be retroactive....

...[6] See *154 Chase Fed., 737 So.2d at 500 ("Of course, where the language of a statute contains an express command that the statute is retroactive, there is no need to resort to these canons of statutory construction."). Our task is only to determine if retroactive application of section 766.304 is constitutionally permissible....

...benefits. See Brevda, 420 So.2d at 891. We conclude that the amendment is more than *155 a mere change in procedure; rather, it changes the right itself. [7] For the foregoing reasons, we conclude that the ALJ erred in applying the 1998 amendment to section 766.304, Florida Statutes (1998), to bar the Romines' claim....

...ether the obstetrical services were delivered by a participating physician during the course of labor, delivery, or resuscitation, and (3) the amount of compensation, if any, awardable under the statute. § 766.309, Fla. Stat. (1999). Thus, although section 766.304 grants exclusive jurisdiction to the ALJ to determine whether a claim is compensable under NICA, there is nothing in the statutory scheme that gives the ALJ authority to determine the impact of those findings on a claimant's common law rights and remedies....

...se, if we find that the ALJ's interpretation of the NICA statute is erroneous. See § 120.68(7), Fla. Stat. (1998). We, therefore, have authority to address the issue of law before us. [5] For purposes of clarity, this statute was later amended. See § 766.304, Fla....

...Relying on this case, NICA argues that the 1998 amendment could be read as clarifying the original legislative intent regarding the operation of NICA. In O-Leary v. Florida Birth-Related Neurological Injury Compensation Association, 757 So.2d 624, 626-27 (Fla. 5th DCA 2000), we held that the Legislature, by amending section 766.304 to grant exclusive jurisdiction to an administrative law judge to determine whether a claim filed under this act is compensable, clearly meant to correct the dual jurisdiction problem that existed under Florida case law. We believe that NICA is correct when it argues that the Legislature amended section 766.304 to provide an exclusive no-fault benefit in lieu of traditional common law tort rights. However, that does not address whether the July 1, 1998 amendment to section 766.304 can be retroactively applied to a child born earlier to preclude NICA benefits when there has previously been a civil recovery....

...e intensive care unit at the *312 hospital after delivery. The parents also sued the delivering doctor and hospital. Under NICA, an administrative law judge (ALJ) is to make the initial determination of whether a claim is compensable under the plan. § 766.304, Fla....

...cept the NICA no-fault benefits or to pursue a civil action against any non-covered persons or entities. The remedies are mutually exclusive. The plain language of section 766.303(2) bars double recovery for a compensable injury under NICA. See also § 766.304, Fla....

...eriod and, therefore, NICA would not be their exclusive remedy. The question of whether the claim against Pediatrix is compensable under the plan may need to be referred to the ALJ for a determination if that determination has not already been made. § 766.304 (explaining that ALJ has exclusive jurisdiction to determine whether claim is compensable and that "[n]o civil action may be brought until the determinations under § 766.309 have been made by the administrative law judge"); § 766.309(1)(...

...nders 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. § 766.302(2), Fla. Stat. (2003). Section 766.304 outlines the exclusive nature of NICA's relief: 766.304....

...If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available *585 under common law and statutory law. § 766.304, Fla....

...ORHS responded by filing a motion for summary judgment. In the motion, ORHS asserted that, since Alexander received the rights and remedies pursuant to the NICA plan, no civil action against ORHS could be continued because of the exclusiveness of the NICA remedy. See § 766.304, Fla....

...ORHS responds, arguing that further amendment to Alexander's complaint to add claims against ORHS is not authorized because the factual issue relating to Elliott's injury was tried before the ALJ and his determination that Elliott's injury was a birth-related neurological injury compensable under NICA was affirmed on appeal. Section 766.304, Florida Statutes (2005), states that, if the ALJ determines that the claimant is entitled to receive compensation under the NICA plan, no civil action may be brought or continued....

...ents. In most cases, the maximum amount is awarded to the parents jointly. In those rare cases in which the award is split between the mother and father, it can be done so based on articulable economic reasons supported by detailed factual findings. Section 766.304, Florida Statutes, affords the ALJ all powers authorized under the APA, including conducting an evidentiary hearing to determine the proper amount, division and distribution of the parental award....

...In April 2011, UM filed a motion for summary final judgment claiming immunity from suit under section 766.303 of NICA (“NICA’s Immunity 2 The ALJ has “exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable.” § 766.304, Fla....

...sistent herewith. NOTES [1] See § 766.302(1), Fla. Stat. (1991). [2] At the time of the proceedings below, the statute provided that "[t]he judge of compensation claims shall hear and determine all claims filed pursuant to ss. 766.301-766.316... ." § 766.304, Fla....

...e intensive care unit at the *312 hospital after delivery. The parents also sued the delivering doctor and hospital. Under NICA, an administrative law judge (ALJ) is to make the initial determination of whether a claim is compensable under the plan. § 766.304, Fla....

...ept the NICA no-fault benefits or to pursue a civil action against any non-covered persons or entities. The remedies are mutually exclusive. The plain language of section 766.303(2) bars double recovery for a com-pensable injury under NICA. See also § 766.304, Fla....

...riod and, therefore, NICA would not be their exclusive remedy. The question of whether the claim against Pe-diatrix is compensable under the plan may need to be referred to the ALJ for a determination if that determination has not already been made. § 766.304 (explaining that ALJ has exclusive jurisdiction to determine whether claim is compensable and that “[n]o civil action may be brought until the determinations under § 766.309 have been made by the administrative law judge”); § 766.309...

...The petitioners filed a motion to abate with their answer and affirmative defenses. In the motion to abate, the petitioners alleged that George Houvardas had a birth-related neurological injury and his exclusive remedy for damages was under NICA. The petitioners further alleged that pursuant to section 766.304 no civil action may be brought until the determinations under section 766.309 have been made by the ALJ, who has exclusive jurisdiction to determine all claims....

...ding." § 766.301(1)(d), Fla. Stat. (Supp.1998). This leads us to conclude that the legislature did not intend that the ALJ and the courts have dual jurisdiction over any issue where the Act provides the ALJ with the authority to rule on that issue. Section 766.304, Florida Statutes (2003), states: "The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable....

...eed with a civil action against the Hospital. To phrase our conclusion in terms of the Hospital's suggested analogy, the Andersons need not stop to weigh the proverbial bird in their hands before they release it to pursue multiple birds in the bush. Section 766.304 provides the ALJ with exclusive jurisdiction to determine whether a claim is compensable under the Plan....

...Houvardas, 924 So.2d 982, 985 (Fla. 2d DCA 2006) (holding "that under the 2003 Act, the ALJ has exclusive jurisdiction to determine whether notice of a health provider's participation in NICA was properly given in accordance with section 766.316"). [2] We note that section 766.304 provides that "[n]o civil action may be brought until the determinations under s....

...(Emphasis added.) Thus the authorization in section 766.309(4) for the bifurcation of the proceedings suggests that the ALJ is not required to make a determination of the amount of an award unless and until such a determination becomes necessary. The Hospital argues that section 766.304 requires the ALJ to make the necessary determinations under section 766.309, including the amount of any award, before the claimant may proceed with a civil action....

...ght under the Florida Birth-Related Neurological Injury Compensation Act (the Act), sections 766.301-766.316, Florida Statutes (1988). While judges of compensation claims had jurisdiction over claims originally brought under the Act, an amendment to section 766.304 transferred jurisdiction over such claims to the Division of Administrative Hearings....

...diction over the claim, and we grant the writ. In 1991, Mary E. Thomas brought a claim under the Act on behalf of her son. A final hearing was held before JCC Michael J. DeMarko in January of 1993, but a final order was not entered. The amendment to section 766.304 transferred jurisdiction over such claims to the Division of Administrative Hearings effective May 15, 1993....

...If the aim is to destroy a tribunal or to take away cases from it, there is no basis for finding saving exceptions unless they are made explicit. Here the statute was amended, not repealed, but we believe the rule of law announced in State ex rel. Arnold controls. Because section 766.304 contains no explicit savings clause, the judge of compensation claims has lost jurisdiction over the cause and jurisdiction now lies with the Division of Administrative Hearings....

...Plante of Roetzel & Andress, L.P.A., Tallahassee, for Appellee Florida Birth-Related Neurological Injury Compensation Association. WEBSTER, J. Appellant, a certified nurse midwife, seeks review of a final order entered by an administrative law judge following a hearing held pursuant to section 766.304, Florida Statutes (2000), to determine compensability from the Florida Birth-Related Neurological Injury Compensation Association for a "birth-related neurological injury." We have jurisdiction....

...Our standard of review is de novo. See, e.g., Racetrac Petroleum, *273 Inc. v. Delco Oil Inc., 721 So.2d 376, 377 (Fla. 5th DCA 1998) ("judicial interpretation of Florida statutes is a purely legal matter and therefore subject to de novo review"). Section 766.304, Florida Statutes (2000), states that "[t]he administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable." The next sentence of that section directs the reader to section 766.30...

...See § 766.303(2), Fla. Stat. Furthermore, the Plan indicates that no civil action may be pursued until determinations are made under the Plan as to whether there is a birth-related neurological injury, as well as to other matters affecting compensability. See § 766.304, Fla....

...An administrative law judge determined that the child sustained a qualifying birth-related neurological injury, but that the settlement of the medical negligence claim against the hospital precluded an award of benefits under the Plan. That ruling was made in accordance with section 766.304, which precludes a Plan award if there has been recovery by settlement or judgment in a civil action....

...In ruling for the defendants the court observed that the appellants' complaint had not used the "willful and wanton" language, which the court described as an "obtuse" pleading requirement. The court concluded that, in light of the statutory proscriptions in sections 766.303(2) and 766.304, such an express allegation should have been made before the administrative determination of no award under the Plan became binding, in order for the appellants to rely on the willful and wanton exception to the exclusivity in section 766.303(2)....

...not pertain when there is clear and convincing evidence of willful and wanton disregard, if the civil action is filed prior to and in lieu of payment of an award under the Plan (or before an award becomes conclusive and binding). And as indicated in section 766.304, an award should not be made under the Plan if there has been a settlement or final judgment in a civil action....

...See § 766.303(2), Fla. Stat. Furthermore, the Plan indicates that no civil action may be pursued until determinations are made under the Plan as to whether there is a birth-related neurological injury, as well as to other matters affecting compensability. See § 766.304, Fla....

...An administrative law judge determined that the child sustained a qualifying birth-related neurological injury, but that the settlement of the medical negligence claim against the hospital precluded an award of benefits under the Plan. That ruling was made in accordance with section 766.304, which precludes a Plan award if there has been recovery by settlement or judgment in a civil action....

...In ruling for the defendants the court observed that the appellants’ complaint had not used the “willful and wanton” language, which the court described as an “obtuse” pleading requirement. The court concluded that, in light of the statutory proscriptions in sections 766.303(2) and 766.304, such an express allegation should have been made before the administrative determination of no award under the Plan became binding, in order for the appellants to rely on the willful and wanton exception to the exclusivity in section 766.303(2)....

...not pertain when there is clear and convincing evidence of willful and wanton disregard, if the civil action is filed prior to and in lieu of payment of an award under the Plan (or before an award becomes conclusive and binding). And as indicated in section 766.304, an award should not be made under the Plan if there has been a settlement or final judgment in a civil action....

...nst any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs.”). A claimant may not bring or maintain a civil suit in violation of NICA’s exclusive remedy provision. § 766.304, Fla....

...r NICA. Id. at 627-28 . In reaching this conclusion, the Fifth District first presented the language of the 1998 amendments as follows: In 1998, after the McKaughan and Braniff decisions, the legislature, in chapter 98-113, amended sections 766.301, 766.304, and 766.316, as follows: [[Image here]] Be It Enacted by the Legislature of the State of Florida: Section 1....

...claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault. The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding. Section 2. Section 766.304, Florida Statutes, is amended to read: 766.304 Administrative law judge to determine claims.— The administrative law judge shall hear and determine all claims filed pursuant to ss....

...requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(8)(b) or when notice is not practicable. Section 6. The amendments to sections 766.301 and 766.304, Florida Statutes, shall take effect July 1,1998, and shall apply only to claims filed on or after that date and to that extent shall apply retroactively regardless of the date of birth....

...he legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim. Notably, the determination of the adequacy of notice is not excluded from the duties of the administrative law judge. Section 766.304 states that the administrative law judge shall hear all claims and shall exercise the full power and authority granted that is necessary to carry out the purposes of the section....

...that notice under section 766.316 was or was not properly given.” All Children’s Hosp., Inc., 863 So.2d at 456 . Instead, we agree with Judge Kahn’s analysis of this question in Tabb, 880 So.2d 1253 , where he wrote: The ALJ’s authority derives from section 766.304, Florida Statutes (2001): 17 The administrative law judge shall hear and determine all claims filed pursuant to ss....

...led by the filing of a NICA claim. See section 766.306, Fla. Stat. (1997). . See § 766.301(l)(d), Fla. Stat. (Supp.1998) ("The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.”); § 766.304, Fla....

...te does not apply.... As established law provides, an ALJ must have jurisdiction to determine whether the ALJ has jurisdiction.”) (citations omitted); see discussion of Judge Kahn’s analysis in part II.B.3, infra. . The 1998 and 2001 versions of section 766.304 are identical....

heard by an administrative hearing officer, id. § 766.304, who must determine whether the injury claimed

...Taranco, and each doctor’s professional association, seeking damages for the wrongful death of their baby, Sam-er Abifaraj, and for physical injury to Ray-ya Abifaraj caused by the rupture of her uterus. The circuit court entered an order abating appellees’ claims until the necessary determinations under section 766.304, Florida Statutes, were made by the ALJ....

...he was without jurisdiction to decide the willful and wanton issue. This appeal followed. We review an ALJ’s interpretation of the NICA plan de novo. Schur v. Fla. Birth-Related Neurological, 832 So.2d 188 (Fla. 1st DCA 2002). As amended in 1998, section 766.304, Florida Statutes, grants the ALJ exclusive jurisdiction to determine whether a claim for NICA plan benefits is compensable and references section 766.309 for a list of issues that the ALJ must decide in determining compensability....

...im with respect to such injury.... § 766.303(2), Fla. Stat. (1993). In 1998, the legislature substantially amended NICA’s exclusive remedy provisions. While the above-cited language of section 766.303(2) remained the same, the legislature amended section 766.304, vesting the administrative law judge with exclusive jurisdiction to determine whether the child had suffered a birth-related neurological injury. See § 766.304, Fla....

...Accordingly, the order on appeal is AFFIRMED. STONE and WARNER, JJ., concur. . The current version of the statute provides that "[a]n award may not be made or paid under ss. 766.301-766.316 if the claimant recovers under a settlement or a final judgment is entered in a civil action.” § 766.304, Fla....

...clusive remedy of the NICA plan as an affirmative defense.” Fla. Birth-Related. Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974, 980 (Fla.1996). It was the supreme court’s decision in McKaughan that prompted the. 1998 amendments to section 766.304, Florida Statutes....

...and in lieu of payment of an award under ss. 766.301-766.316.” 5 (Emphasis added). The ALJ has “exclusive jurisdiction to determine whether a claim filed under NICA is compensable.” §§ 766.301(1)(d), 766.304, and 766.311(1), Fla....

...(establishing a five-year limitation on claim). Otherwise, I concur with Judge Lewis’s conclusion on the notice issue. Finally, I agree with Judge Tanenbaum’s observation at this juncture that nothing stops Appellant from filing an action in circuit court. See § 766.304, Fla....

...performing exclusively quasi-judicial functions within the executive branch 3—must first determine that a claim under the Plan is compensable. See § 766.305(1), Fla. Stat. (requiring that claim for compensation under the Plan be filed with DOAH); § 766.304, Fla....

...becomes the exclusive remedy, barring the claimant from subsequently filing a civil suit. See § 766.303(2), Fla. Stat. (“The rights and remedies granted by this plan on account of a birth- related neurological injury shall exclude all other rights and remedies . . . .”); § 766.304, Fla....

...branch to make final and conclusive determinations”). The Legislature’s provision for the ALJ’s exercise of “exclusive jurisdiction to determine” both compensability of a claim and compliance with the Plan’s notice requirements (see §§ 766.304, 766.309, Fla....

...not “admissible in any civil suit” and can have no preclusive effect (through either “collateral estoppel” or “res judicata”) in the claimant’s subsequent pursuit of “any and all civil remedies available under common law and statutory law.” § 766.304, Fla. Stat....

...Braniff, 696 So.2d 308, 309 (Fla.1997); see also § 766.316 (“Each hospital with a participating physician on its staff and each participating physician ... shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries.”). Pursuant to section 766.304, the ALJ “shall hear and determine all [NICA] claims.” Section 766.309 more specifically provides: (1) The administrative law judge shall make the following determinations based upon all available evidence: (a)Whether the injury claimed is a birth-related neurological injury....

...Among other changes, the legislature reduced the time to file a Plan petition from seven years to five years. However, the legislature did not incorporate an election of remedies clause like Virginia’s statute. In 1998, however, the legislature did amend section 766.304 to provide: 766.304 Administrative law judge to determine claims....

...[1] Section 766.302, Florida Statutes, refers to the Plan as established under section 766.303. The statutory provisions that I refer to are found in sections 766.301-.316, Florida Statutes (2002). [2] The provisions of chapter 120, Florida Statutes, are made applicable by section 766.304, Florida Statutes, which provides: The administrative law judge shall hear and determine all claims filed pursuant to ss....

...exclusive remedy for injuries found to be compensable under NICA. Further, UM argued that because it is not a participating hospital or doctor, it was not required 2 The ALJ has “exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable.” § 766.304, Fla....

...BRNI are exclusive of “all other rights and remedies . . . against any person or entity directly involved” that arise of or relate to medical negligence, except in some limited circumstances. 5 § 766.303(2), Fla. Stat.; see also § 766.304, Fla....

...The Legislature taps the Division of Administrative Hearing (“DOAH”)—part of the Department of Management Services in the executive branch—to administer these “claims” against the Plan’s funds, which is done through its ALJs, appointed hearing officers. § 766.304, Fla....

...petition approves that acceptance. § 766.305(7), Fla. Stat. If NICA does not accept the claim, or the ALJ does not approve NICA’s acceptance, the ALJ will “hear and determine” the claim, using “the full power and authority granted to her or him in chapter 120.” § 766.304, Fla....

...Stat. (requiring ALJ to determine how much compensation is awardable under section 766.31, Florida Statutes). 3 If, however, the ALJ determines that the claim is not compensable, the determination has no legal effect outside the executive branch. See § 766.304, Fla. Stat....

...That is, they declared in their DOAH case that they no longer were pursuing a claim for compensation against the Plan, effectively taking a voluntary dismissal of their “claim.” Absent a claim, there was no authority for the ALJ to issue an order on compensability. See § 766.304, Fla....

...(“The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 . . . .”); Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So. 2d 974, 978 (Fla. 1996) (observing that this specific “statutory language [in section 766.304] clearly limits the jurisdiction of the hearing officer to determining the nature of an infant’s injury only when a claim for benefits under section 766.305(1) is filed alleging that the infant has suffered a NICA injury” (first e...

...The law added a sentence to section 766.301(1)(d), Florida Statutes, that provided: “The issue of whether [BRNI] claims are covered by this act must be determined exclusively in an administrative proceeding.” Ch. 98-113, § 1, Laws of Fla. It added similar text to section 766.304, Florida Statutes: “The administrative law judge has exclusive jurisdiction to 4 Just a few days following oral argument, Shands and UF— perhaps sensing from the questioning that an unfavorable opinion would be forthcoming—attempted to take a voluntary dismissal of their appeal....

...intend to create a straightforward administrative system to handle claims for compensation filed by persons who assert they are entitled to NICA benefits.” Id. Next, the court rejected an argument that the text in a third statutory provision, section 766.304—mandating the hearing officer “hear and determine all claims”—meant that the officer had “exclusive jurisdiction to determine the nature of an infant’s injury.” Id....

...which expressly makes the Plan applicable “only to birth-related neurological injuries” (that is, BRNIs); and noted that the parents had already asserted their child did not suffer a BRNI and was not entitled to benefits under the Plan. The court also considered the portion of section 766.304 providing that the hearing officer/ALJ may “exercise the full power and authority granted to [her or] him in chapter 120 [the Administrative Procedure Act], as necessary, to carry out the purposes of [sections 766.301 through 766.316]”— that is, of the Plan....

...766.305(1) is filed alleging that the infant has suffered a NICA injury.” Id. (first emphasis supplied). Pulling this all together, we see the supreme court relied on a close textual treatment of the four statutory provisions just mentioned, sections 766.301(2), 766.302(3), 766.304, and 766.305(1); and its conclusion that these provisions limit the Plan and the ALJ’s authority thereunder to “claims” by parents affirmatively seeking compensation; to hold that an administrative hearing officer/ALJ does not have “exclusive jurisdiction ....

...asserted as an affirmative defense, and we do not read the 1998 amendments as attempting to do so. 6 Indeed, the 1998 amendments, remarkably, left untouched the exact text on which the McKaughan Court relied for its holding: all four provisions (sections 766.301(2), 766.302(3), 766.304, and 766.305(1)) limiting the Plan’s application to claims for compensation based on a BRNI. 6 To be sure, we are not passing on the constitutionality of any of these 1998 amendments....

...For instance, the addition to section 766.301(1)(d) refers to a birth- related neurological injury claim and the issue whether it is covered under the Plan, which “must be determined exclusively in an administrative proceeding.” The addition to section 766.304 also speaks in terms of “a claim filed under this act” and a determination of whether “the claimant is entitled to compensation” under the Plan. These modifications speak to the ALJ’s jurisdiction, to be sure, but none...

...Instruction of Alachua Cnty., 278 So. 2d 260, 262 (Fla. 1973) (noting that an 8 An ALJ’s order determining that a claim affirmatively seeking compensation under the Plan is not compensable cannot have preclusive effect, by operation of statute (if nothing else). See § 766.304, Fla....

...claims for compensation under the plan” to DOAH giving ALJs (rather than judicial officers) the exclusive authority to determine whether a claimant asserting a public right to compensation in fact meets the statutory criteria for enforcement of that right. §§ 766.304, 766.305(1), Fla....

...(limiting the immunity waiver to liability for payment on any claim or 27 facts associated with the claim, the ALJ has the authority to conduct a formal evidentiary hearing and make findings of fact and conclusions of law bearing on that claim. See § 766.304, Fla....

...2d at 210 (explaining 29 that “the rights of an intervenor are subordinate to the rights of the parties,” even in an administrative proceeding, and “that an intervenor may not inject a new issue into the case”). Section 766.304 (providing that the ALJ “has exclusive jurisdiction to determine” the compensability of a claim under NICA) and section 766.309 (giving the ALJ “exclusive jurisdiction” to make certain “factual determinations”), then, did...

...exercise—a government function associated with it. Without a “claim” affirmatively seeking compensation under the Plan, though, there was no such government function requiring the ALJ’s exercise of that power. The “exclusive jurisdiction” provisions in sections 766.304 and 766.309 simply cannot operate to give the ALJ authority independently—outside the context of a claim under the Plan—to decide conclusively the nature of G.C.’s injury in the way advanced by Shands and UF....

...18 In fact, if the ALJ’s order finding no BRNI had been entered in connection with the Chavezes’ original petition (affirmatively seeking compensation), it would have had no preclusive effect in the Chavezes’ subsequent civil suit, if they chose to pursue one. See § 766.304, Fla....

5 § 766.303(2), Fla. Stat.; see also § 766.304, Fla. Stat. (precluding a recipient of compensation

...n regarding a BRNI are exclusive of “all other rights and remedies . . . against any person or entity directly involved” that arise out of or relate to medical negligence, except in some limited circumstances. § 766.303(2), Fla. Stat.; see also § 766.304, Fla....

...The Legislature taps the Division of Administrative Hearings (“DOAH”)—part of the Department of Management Services in the executive branch—to administer these “claims” against the Plan’s funds, which is done through its ALJs, appointed hearing officers. § 766.304, Fla....

...If NICA does not accept the claim, or the ALJ does not approve NICA’s acceptance, the ALJ will “hear and determine” the claim, using “the full power and authority granted to her or him in chapter 120”—the formal, statutory dispute at all times being between NICA and the claimant. § 766.304, Fla....

...Stat. 8 (requiring ALJ to determine how much compensation is awardable under section 766.31, Florida Statutes). 3 If, however, the ALJ determines that the claim is not compensable, the determination has no legal effect outside the executive branch. See § 766.304, Fla. Stat....

...That is, they declared in their DOAH case that they no longer were pursuing a claim for compensation against the Plan, effectively taking a voluntary dismissal of their “claim.” Absent a claim, there was no authority for the ALJ to issue an order on compensability. See § 766.304, Fla....

...(“The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 . . . .”); Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So. 2d 974, 978 (Fla. 1996) (observing that this specific “statutory language [in section 766.304, Florida Statutes,] clearly limits the jurisdiction of the hearing officer to determining the nature of an infant’s injury only when a claim for benefits under section 766.305(1) is filed alleging that the infant has suffered a NICA...

...The law added a sentence to section 766.301(1)(d), Florida Statutes, that provided: “The issue of whether [BRNI] claims are covered by this act must be determined exclusively in an administrative proceeding.” Ch. 98-113, § 1, Laws of Fla. It added similar text to section 766.304: “The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable.” Id....

...ntend to create a straightforward administrative system to handle claims for compensation filed by persons who assert they are entitled to NICA benefits.” Id. Next, the court rejected an argument that the text in a third statutory provision, section 766.304—mandating the hearing officer “hear and determine all claims”—meant that the officer had “exclusive jurisdiction to determine the nature of an infant’s injury.” Id....

...which expressly makes the Plan applicable “only to birth-related neurological injuries” (that is, BRNIs); and noted that the parents had already asserted their child did not suffer a BRNI and was not entitled to benefits under the Plan. Id. The court also considered the portion of section 766.304 providing that the hearing officer/ALJ may “exercise the full power and authority granted to [her or] him in chapter 120 [the Administrative Procedure Act], as necessary, to carry out the purposes of [sections 766.301 through 766.316]”—that is, of the Plan....

...uffered a NICA injury.” Id. (first emphasis supplied). Pulling this all together, the reader can see that the supreme court relied on a close textual treatment of the four statutory provisions just mentioned, sections 766.301(2), 766.302(3), 766.304, and 766.305(1)—and its conclusion that these provisions limit the Plan and the ALJ’s authority thereunder to “claims” by parents affirmatively seeking compensation—to hold that an administrative hearing officer/ALJ does not have “exclusive jurisdiction ....

...se, so the 1998 amendments should not be read as attempting to do so. 7 Indeed, the 1998 amendments, remarkably, left untouched the exact text on which the McKaughan Court relied for its holding: all four provisions (sections 766.301(2), 766.302(3), 766.304, and 766.305(1)) limiting the Plan’s application to claims for compensation based on a BRNI. For instance, the addition to section 766.301(1)(d) refers to a BRNI claim and the issue of whether it is covered under the Plan, which “must be determined exclusively in an administrative proceeding.” The addition to section 766.304 also speaks in terms of “a claim filed under this act” and a determination of whether “the claimant is entitled to compensation” under the Plan....

...ALJs and judges of compensation claims 10—are members of the 9 An ALJ’s order determining that a claim affirmatively seeking compensation under the Plan is not compensable cannot have preclusive effect, by operation of statute (if nothing else). See § 766.304, Fla....

...claims for compensation under the plan” to DOAH—giving ALJs (rather than judicial officers) the exclusive authority to determine whether a claimant asserting a public right to compensation in fact meets the statutory criteria for enforcement of that right. §§ 766.304, 766.305(1), Fla....

...items relative to such injury. . . .”). 13 In the event of controverted facts associated with the claim, the ALJ has the authority to conduct a formal evidentiary hearing and make findings of fact and conclusions of law bearing on that claim. See § 766.304, Fla....

...and “that an intervenor may not inject a new issue into the case”). In this context, an ALJ’s determination whether someone has a “right to sue”—absent a claim for a public benefit—could have no effect outside the executive branch. Section 766.304 (providing that the ALJ “has exclusive jurisdiction to determine” the compensability of a claim under NICA) and section 766.309 (giving the ALJ “exclusive jurisdiction” to make certain “factual determinations”), then, did...

...exercise—a government function associated with it. Without a “claim” affirmatively seeking compensation under the Plan, though, there was no such government function requiring the ALJ’s exercise of that power. The “exclusive jurisdiction” provisions in sections 766.304 and 766.309 simply cannot operate to give the ALJ authority independently—outside the context of a claim under the Plan—to decide conclusively the nature of G.C.’s injury in the way advanced by Shands and UF....

...19 In fact, if the ALJ’s order finding no BRNI had been entered in connection with the Chavezes’ original petition (affirmatively seeking compensation), it would have had no preclusive effect in the Chavezes’ subsequent civil suit, if they chose to pursue one. See § 766.304, Fla....

...In July 2022, the trial court properly granted Dr. Siegfried’s motion to abate the action until plaintiffs filed a petition under NICA as to Dr. Siegfried and until plaintiffs obtained a final order from an Administrative Law Judge (ALJ). 1 See § 766.304, Fla....

...requirements of law in failing to abate an action where an ALJ had not determined whether the claim was compensable under NICA). The ALJ’s letter advising plaintiffs that a motion to reopen could not be filed in the closed 2019 case does not satisfy the requirements of section 766.304, Florida Statutes (2016), which states: “No civil action may be brought until the determinations under s....

originally brought under the Act, an amendment to section 766.304 transferred jurisdiction over such claims to

...as time-barred. For the reasons which follow, we affirm, holding that, despite the untimely nature of Expo-sito’s administrative claim for compensation, the ALJ was vested with exclusive jurisdiction to determine the issue of com-pensability under section 766.304, Florida Statutes (2010)....

...If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law. § 766.304, Fla....

...If the ALJ determines a claim is compen-sable, no action may be maintained in circuit court, and the only remedies which may be sought are those administrative remedies provided under the NICA Plan. If the ALJ determines the claim is not compensable, a cause of action may be maintained in circuit court. § 766.304, Fla....

...Second, the ALJ is granted “exclusive jurisdiction to determine whether a claim filed under this act is compensable,” and “[n]o civil action may be brought until the [compensability] determinations under s. 766.309 have been made by the administrative law judge.” § 766.304 Fla....

...striction of, access to the courts. Id. at 901 ; Swain v. Curry, 595 So.2d 168, 174 (Fla. 1st DCA 1992). We conclude that “the administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable,” section 766.304, Fla....

...f the NICA claim. More importantly, the "defense of compensa-bility” is a misnomer. Under the NICA statute, without the ALJ's determination of com- *809 pensability, Expósito would be prohibited from proceeding with her civil cause of action. See § 766.304, Fla....

...ctice, since exclusive jurisdiction was with the administrative law judge and the appeal from that decision was timely filed. The NICA Plan provides the exclusive remedy for birth-related neurological injuries. See § 766.303(2), Fla. Stat. Further, section 766.304, Florida Statutes, provides that the administrative law judge has exclusive jurisdiction to determine whether a claim filed under the act is compensable as a birth-related neurological injury. §§ 766.304; 766.309(1)(a), Fla....