Florida/Georgia Personal Injury & Workers Compensation

...A claim is compensable under the plan only if the administrative law judge determines that the infant’s injury is a “birth-related neurological injury” sustained during obstetric treatment by a “participating physician” or a certified nurse midwife under the supervision of a “participating physician.” Id. § 766.309, 766.31. The Compensation Act defines both the covered injuries and the professionals....

...or when notice is not practicable.” Id. The administrative law judge 6 assigned to review a claim under the no-fault plan has exclusive jurisdiction to determine whether the notice requirements were satisfied with respect to that claim. Id. § 766.309(1)(d)....

...Because the First District failed to read the phrase "immediate postdelivery period" as modifying "resuscitation," the First District expanded the NICA Plan to cover infants beyond the limit contemplated by the express language of the statute. Second, the First District incorrectly held that under section 766.309(1)(a), Florida Statutes (2001), the rebuttable presumption of coverage under the NICA Plan applied to *834 benefit the defendants, even though the Bennetts were not making a claim for compensation under the NICA Plan....

...Birth-Related Neuro. Injury Comp. Ass'n, 29 F.A.L.R. 3867, 3879-80 (Fla. Div. of Admin. Hrgs. Oct. 3, 2007) (emphasis added). The First District reversed the ALJ, holding that the ALJ should have applied the statutory presumption of compensability set forth in section 766.309(1)(a)....

...cal injury; (2) whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; and (3) the amount of compensation that is awardable. See § 766.309(1), Fla. Stat. (2001). In determining whether the injury is a birth-related neurological injury, section 766.309(1)(a) provides for a rebuttable presumption as follows: If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2). § 766.309(1)(a), Fla....

...The majority explicitly rejected the contention that the presumption can be invoked only by the claimant: Under this section, the presumption arises upon the presentation of evidence demonstrating the required injury. While it is true that claimants bear the initial burden of proof under section 766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law....

...If the statutory language is ambiguous and capable of different meanings, "this Court will apply established principles of statutory construction to resolve the ambiguity." Barco v. Sch. Bd. of Pinellas Cnty., 975 So.2d 1116,1122 (Fla.2008). The specific language of the statutory presumption is found in section 766.309(1), which requires the ALJ to make certain determinations based on "all available evidence." The first determination is "[w]hether the injury claimed is a birth-related neurological injury." § 766.309(1)(a), Fla....

...suscitation in the immediate postdelivery period. Under this provision, the rebuttable presumption arises in favor of a "claimant" who has demonstrated the statutory prerequisites. The term "claimant" is defined in the statutory scheme and therefore section 766.309 should be read together with the definitional section of the same statutory scheme....

...ry of the prior legislative enactments assists the court in determining legislative intent). In this case, we have the prior legislative enactment of the rebuttable presumption statute. Specifically, when the Legislature first created the NICA Plan, section 766.309(1) provided: 1....

...and substantially mentally and physically impaired. 2. If either party disagrees with such presumption, that party shall have the *845 burden of proving that the injuries are not birth-related neurological injuries within the meaning of the chapter. § 766.309(1)(a), Fla....

...Second, the Legislature deleted the paragraph that shifted the burden to the party disagreeing with the presumption. Id. Since 1989, the language of the rebuttable presumption has remained unchanged. To interpret the rebuttable presumption language in section 766.309(1)(a) to inure to the benefit of the respondent and shift the burden of proof back to the claimant would essentially return the statute to the pre-1989 language. Rejecting this interpretation is consistent with the explanation provided in Judge Kahn's dissent: It seems completely clear that the purpose of the presumption provided by 766.309(1)(a) is to aid a claimant in proving the prerequisite elements to a NICA claim....

...tantially 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. Id. § 766.309(1)(a)....

...[13] The ALJ must consider, but is not bound by, the recommendation of the medical advisory panel. § 766.308(1), Fla. Stat. (Supp.1998). Under the 1998 version of NICA, the ALJ is expressly required to make three independent findings "based upon all available evidence." § 766.309(1), Fla. Stat. (1997). First, the ALJ must determine whether the claim is a birth-related neurological injury. § 766.309(1)(a), Fla. Stat. (1997). Second, the ALJ must determine whether the injury was caused by a participating health care provider, as defined in section 766.302(7). § 766.309(1)(b), Fla. Stat. Finally, if the first and second requirements are met, the ALJ must determine the amount of the award without any regard for fault. §§ 766.309(1)(c), 766.31(1), Fla....

...nc. and Ferguson, the Second District certified conflict with O'Leary, M.A., and Behan. The conflict is based on divergent views over the scope of the ALJ's duties in the NICA claims process. [14] The Second District held that "[t]here is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine ....

...that notice under section 766.316 was or was not properly given." All Children's Hosp., Inc., 863 So.2d at 456. [15] In essence, the Second District viewed the ALJ's subject matter jurisdiction as limited to making the three determinations mandated by section 766.309(1). Under the 1998 statute, the three determinations mandated by section 766.309(1) were (a) whether the injury claimed is a birth-related neurological injury; (b) whether the obstetrical services were delivered by a health care provider that participates in the NICA Plan; and (c) the amount of any compensation....

...is the exclusive remedy for the covered injuries. The other district courts of appeal took a broader view of the ALJ's subject matter jurisdiction. Each of these courts found jurisdiction in other provisions of the NICA statutory scheme, outside of section 766.309(1)....

...er 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...Resolving the Conflict Question Again, the narrow question we must resolve is whether the 1998 version of NICA gives the ALJ jurisdiction to determine if the notice mandated by section 766.316 was provided. As previously stated, we disagree with the Second District's holding that "[t]here is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine ....

...ter 120, as necessary to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...As established law provides, an ALJ must have jurisdiction to determine whether the ALJ has jurisdiction. See, e.g., Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958) (explaining that "a tribunal always has jurisdiction to determine its own jurisdiction"). Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...Under the specific language of NICA, a determination of compensability entails assessing: (1) whether the injury claimed is a birth-related neurological injury; (2) whether obstetrical services were delivered by a NICA participating physician; and (3) how much compensation should be awarded. See § 766.309, Fla. Stat. (1997). There is no mention whatsoever of notice in the version of section 766.309 that is applicable to the instant case. Since notice is not expressly listed as one of the issues that the ALJ must determine pursuant to section 766.309, we should not interpret NICA to remove the right of individuals to have this issue heard and decided by a circuit court. Rather, NICA should be strictly construed to limit the jurisdiction of the ALJ to those items expressly relegated under section 766.309....

...Additionally, it is not necessary under NICA for an ALJ to determine whether a party received notice pursuant to section 766.316 in order to decide whether a birth-related injury is compensable under NICA. See id. To decide the latter issue, the ALJ is only required to analyze the three elements listed in section 766.309....

...aw rights of patients to a statutory substitute. I believe that the majority has erred in concluding that the ALJ possesses jurisdiction to determine whether the notice mandated by section 766.316 was provided because there is no express language in section 766.309 dictating such....

...ion 766.316. And there is no justification under NICA for the ALJ's failure to make a determination concerning the compensability of the injury which is the subject of the underlying claim. The responsibilities of the ALJ are succinctly set forth in section 766.309. The ALJ must address the two basic questions which determine if a claim is compensable under the plan: (1) "[w]hether the injury claimed is a birth-related neurological injury," § 766.309(1)(a); and (2) "[w]hether obstetrical services were delivered by a [covered person] in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," § 766.309(1)(b)....

...(Supp.1998)—subject, of course, to the right to pursue an appeal of the ALJ's determination, see § 766.311, Fla. Stat. (1997). The issue of immunity from tort liability and the related issue of notice are an entirely different matter. There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke the immunity from tort liability provided for in section 766.303(2)....

...—the ALJ "has exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable." § 766.304. The 1998 amendments also established that "[n]o civil action may be brought until the determinations [regarding compensability] under s. 766.309 have been made by *721 the [ALJ]." Id. No change was made in the determinations the ALJ is required to make under section 766.309. In cases such as the instant one, where the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section 766.309(1), and thus "covered by [NICA]," in accord with section 766.301(1)(d) (Supp.1998). In cases where the claimant seeks compensation from the plan, once an injury is determined to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§ 766.309(1)(c), .31....

...an the majority's reasoning. First, the actual language vesting jurisdiction in the ALJ to make determinations on the compensability of a claim lists only three specific findings that the ALJ must make, none of which include the issue of notice. See § 766.309, Fla....

...2d DCA 2006), the Second District held that for claims made on or after September 15, 2003, an ALJ in a NICA proceeding has exclusive jurisdiction to determine whether the health care provider has given notice as required by section 766.316. This decision rested upon the 2003 amendments made to section 766.309 by chapter 2003-416, section 77 at 89, Laws of Florida (2003), and the September 15, 2003, effective date expressly provided for therein....

...[17] The 1998 and 2001 versions of section 766.304 are identical. [18] Our resolution of the conflict question is based upon the language of the NICA statute as it existed in 1998. However, for the sake of completeness, we note that our resolution is supported by the 2003 and 2006 amendments to section 766.309. In 2003, section 766.309 was amended to add subsection (4) which states, in applicable part, that "[t]he administrative law judge may issue a final order on compensability and notice which is subject to appeal under s....

...involving NICA claims made on or after September 15, 2003, the effective date of the 2003 amendments. See Weinstock, 924 So.2d at 984. Most recently, on May 2, 2006, chapter 2006-8, Laws of Florida, became law. Chapter 2006-8 added subsection (d) to section 766.309(1) as follows: (1) The administrative law judge shall make the following determinations based upon all available evidence: (d) Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s....

...Association are mandatory parties. §§ 766.304; 766.307. The hearing officer is charged with determining whether the injury claimed is a birth-related neurological injury and whether obstetrical services were delivered by a participating physician. § 766.309....

...He reasoned that "it would be rather anomalous to accede, as suggested by the circuit court, and accept the petition, as filed, where the petitioners have the burden of demonstrating entitlement to benefits under the Plan, but propose to prove a negative: that they are not entitled to such benefits. Section 766.309(1)(a)." The Association and the Intervenors appealed from this order....

...indings on their common law rights. Accordingly, appellants seek reversal of the final order's requirement that they make an election between remedies and that they do so before obtaining discovery on NICA's estimate of the value of their claim. [3] Section 766.309, Florida Statutes (1999) lists the three evidentiary issues that an administrative law judge is authorized to determine: (1) whether the injury claimed is a birth related neurological injury; (2) whether the obstetrical services were...

...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. No civil action may be brought until the determinations under s. 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. Stat. (Supp.1998). Section 766.309, Florida Statutes (1997)—which was not affected by the 1998 amendments—sets forth the specific determinations the ALJ is required to make: (1) The administrative law judge shall make the following determinations based upon all avail...

...ion 766.316. And there is no justification under NICA for the ALJ's failure to make a determination concerning the compensability of the injury which is the subject of the underlying claim. The responsibilities of the ALJ are succinctly set forth in section 766.309. The ALJ must address the two basic questions which determine if a claim is compensable under the plan: (1) "[w]hether the injury claimed is a birth-related neurological injury," § 766.309(1)(a); and (2) "[w]hether obstetrical services were delivered by a [covered person] in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital," § 766.309(1)(b)....

...(Supp.1998)—subject, of course, to the right to pursue an appeal of the ALJ's determination, see § 766.311, Fla. Stat. (1997). The issue of immunity from tort liability and the related issue of notice are an entirely different matter. There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke the immunity from tort liability provided for in section 766.303(2)....

...—the ALJ "has exclusive jurisdiction to determine whether a claim filed under [NICA] is compensable." § 766.304. The 1998 amendments also established that "[n]o civil action may be brought until the determinations [regarding compensability] under s. 766.309 have been made by the [ALJ]." Id. No change was made in the determinations the ALJ is required to make under section 766.309. In cases such as the instant one, where the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section 766.309(1), and thus "covered by [NICA]," in accord with section 766.301(1)(d) (Supp.1998). In cases where the claimant seeks compensation from the plan, once an injury is determined to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§ 766.309(1)(c), .31....

...in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. § 766.309(1)(b), Fla....

...Moreover, the administrative law judge mistakenly concluded that the language in section 766.314(4)(c), which treats a participating nurse midwife like a participating physician, prevented a physician who supervised a nonparticipating midwife from "delivering" services during the delivery of the baby. Section 766.309(1)(b) does not define the term "delivered." The administrative law judge equated the "delivery of services" with the "delivery of a baby." In the context of the statute, however, the obstetrical services are "delivered" during an obst...

...Pitocin, the legal issue would be the same, without the confusion created by the involvement of the midwife and section 766.314(4)(c). The plan clearly intends to protect physicians who are sued for such involvement in the "course of ... delivery." § 766.309(1)(b)....

...ter 120, as necessary to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...he ALJ has *1257 jurisdiction. See, e.g., Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958) (explaining that "a tribunal always has jurisdiction to determine its own jurisdiction"). Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...See also Gugelmin v. Div. of Admin. Hearings, 815 So.2d 764 (Fla. 4th DCA 2002); Behan v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 664 So.2d 1173 (Fla. 4th DCA 1995). Appellant Tabb disagrees with these decisions and relies on language in section 766.309 [2] as well as recent decisions of the *1258 Second District Court of Appeal. See All Children's Hosp., Inc. v. Dep't of Admin. Hearings, 863 So.2d 450, 456 (Fla. 2d DCA 2004) ("There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke the immunity from tort liability provided for in section 766.303(2)."); Fla....

...Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice 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(9)(b) or when notice is not practicable. [2] 766.309 Determination of claims; presumption; findings of administrative law judge binding on participants.— (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....

...tal," which renders the infant both permanently and substantially mentally and physically impaired. § 766.302(2), Fla. Stat. (2004). If the infant's injury satisfies this statutory definition, the infant qualifies for financial benefits. Id.; see §§ 766.309, 766.31, Fla....

...If a claimant establishes that the infant sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and the infant was permanently and substantially mentally and physically impaired, a rebuttable presumption arises that the injury is a birth-related neurological injury. § 766.309(1)(a), Fla....

...The Plan is a legislatively created program that provides compensation, irrespective of fault, to parents of children found (1) to have suffered certain birth-related neurological injuries, and (2) to have been delivered by a participating physician. §§ 766.303, 766.309, Fla....

...articipating 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....

...urse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. (c) How much compensation, if any, is awardable pursuant to s. 766.31. § 766.309(1)(a)-(c)....

...uld be prohibited from raising the statute's immunity provisions as a defense. Whether the ALJ had the jurisdiction to reach these legal conclusions regarding notice is the issue presented in this case. Based on the plain and unambiguous language of section 766.309, the ALJ is authorized to determine whether the injury is a compensable injury under the statute's definition of such, whether the physician was a participating physician, and how much compensation, if any, is to be awarded....

...Accordingly, we consider any reference to the sufficiency of notice issue in Bayfront to be dicta. Affirmed in part; reversed in part; and conflict certified. SILBERMAN and COVINGTON, JJ., Concur. NOTES [1] During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...er 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...is a birth related neurological injury; (2) whether 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....

...e 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)(a) (requiring ALJ to find whether injury claimed is a "birth-related neurological injury")....

...er 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...On cross-appeal, Alexander challenges the ALJ's ruling of compensability, arguing that the ruling should be reversed because she provided sufficient competent evidence to demonstrate that Elliott's injuries did not occur during labor, delivery or resuscitation. We disagree. The ALJ recognized that, pursuant to section 766.309(1)(a) of the Florida Statutes, once it is established that a newborn suffered an injury to the brain caused by oxygen deprivation that rendered the child permanently and substantially mentally and physically impaired, then a rebuttabl...

...does not provide compelling proof that Ms. Alexander was not in active labor, and any opinion that Ms. Alexander was not in active labor, based on the absence of clinical evidence in the records, is inadequate to rebut the presumption established by section 766.309(1)(a), Florida Statutes....

...ent substantial evidence in the record. Nagy v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So.2d 155 (Fla. 4th DCA 2002). Here, the record supports the ALJ's findings. Alexander also argues that the statutory presumption set forth in section 766.309(1)(a) is unconstitutional, both on its face and as applied to her....

...l for the ALJ to apply the presumption against her in this case. For the reasons set forth above with regard to the sufficiency of the evidence, we reject this argument as meritless. As for her "on its face" challenge, Alexander claims that sections 766.309 and 766.302 of the Florida Statutes are unconstitutional because the statutes contain vague terms, specifically citing to the terms "labor", "substantial impairment", and "permanent injury"....

...claim is covered, NICA frequently offers a lump sum payment of a parental award totaling $100,000, regardless of whether there are one or two parents involved in the claim. Such offer is subject to the subsequent approval of the ALJ. (2) Pursuant to Section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to Section 766.31(1)(b)1., Florida Statutes....

...We therefore conclude that the ALJ erred in holding that Bayfront's failure to give notice precluded All Children's from invoking the statutory exclusive remedy provision and being shielded from tort liability. On remand, the ALJ shall make the required determination concerning compensability under section 766.309....

...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(l)(a) (requiring ALJ to find whether injury claimed is a “birth-related neurological injury”)....

...plan for the year in which the injury occurred. (Emphasis added.) Thus a physician's right to assert the exclusive remedies of the Plan turns on whether he or she qualified as a "participating physician" at the time of the injury. See id.; see also § 766.309(1)(b)....

...We concluded that the statute delegated to the ALJ only the authority to determine the issue of compensability, which includes (1) whether the child suffered a neurological injury as defined by the Plan; and (2) whether the child was delivered by a participating physician. See § 766.309....

...tion" of the case by this court was approved by the Florida Supreme Court in Florida Birth-Related Neurological Injury Compensation Ass'n v. McKaughan, 668 So.2d 974 (Fla.1996). [2] During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...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....

...They are not within the jurisdiction of the ALJ." Id. at 456-57. We concluded that the ALJ has the authority to "address [only] the two basic questions which determine if a claim is compensable under the plan: (1) `[w]hether the injury claim is a birth-related neurological injury,' § 766.309(1)(a); and (2) `[w]hether obstetrical services were delivered by a [covered person] in the course of labor, delivery, or resuscitation in the immediate post-delivery period in a hospital,' § 766.309(1)(b)." Id....

...Florida Department of Administrative Hearings, 913 So.2d 596 (Fla.2005), again interpreting NICA in 1997, relied on All Children's Hospital in holding that the circuit court had exclusive jurisdiction to determine issues of notice. However, we stated: During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...Ass'n, 893 So.2d 636, 638 n. 1 (Fla. 2d DCA 2005). In the present case, the child was delivered on September 29, 2003, and the notice of intent to initiate litigation was mailed on October 5, 2004. Both of these events occurred after the effective date of the amendment to section 766.309. The question for this court to decide is whether, in any case arising after the effective date of the amendment, the ALJ has exclusive jurisdiction to determine issues of notice. Pursuant to subsection (4) of section 766.309, the ALJ has the authority to hold a hearing to determine whether notice was properly given....

...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. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge." Section 766.309(4) provides the ALJ with the jurisdiction to resolve issues of notice....

...failure to provide the statutorily-required notice. Although the new paragraph did not specify the impact, the observation that the failure could not be deemed harmless was beyond the scope of his authority as limited by our prior decision. See also § 766.309, Fla....

...as compensable under the Act. [2] See All Children's Hosp., 863 So.2d 450. Further, this court determined that neither the giving of notice nor the failure to give notice is an element of compensability as defined by the statute: There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke immunity from tort liability provided for in section 766.303(2)....

...uthority to determine issues related to notice in NICA proceedings. *639 Reversed and remanded with instructions; conflict certified. NORTHCUTT and KELLY, JJ., Concur. NOTES [1] § 766.301-.316, Fla. Stat. (1997 and Supp.1998). [2] We recognize that section 766.309 also provides for the ALJ to determine if the child was delivered by a participating physician and to determine the amount of compensation to be awarded....

...M.A., 793 So.2d 999 (Fla. 3d DCA 2001); O'Leary v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 757 So.2d 624 (Fla. 5th DCA 2000); Behan v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 664 So.2d 1173 (Fla. 4th DCA 1995). [4] The Florida Legislature amended section 766.309 during the 2003 session....

...gh 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. In making that determination, section 766.309(1) requires the ALJ to make the following findings: (a) Whether the injury claimed is a birth-related neurological injury.......

...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. 766.309 have been made by the administrative law judge." However, the Plan's provisions also permit the ALJ to bifurcate the proceedings. Section 766.309(4) provides as follows: If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31. (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. To be sure, section 766.309(1)(c) directs the ALJ to determine the amount of compensation awardable. Nevertheless, section 766.309(4) allows the ALJ to bifurcate the administrative proceedings to make an initial determination of compensability and notice before determining the amount of any award....

...Florida Division of Administrative Hearings, 948 So.2d 705 (Fla. 2007): [W]here the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section 766.309(1).... [W]here the claimant seeks compensation from the plan, once an injury is determined to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§ 766.309(1)(c),.31. Thus we agree with the Andersons' argument that section 766.309(4) allows the ALJ to decline as unnecessary a determination of the amount of compensation awardable if the claimant decides to reject *1100 all benefits under the Plan after a determination of compensability and notice....

...(2004) (providing for "compensation, on a no-fault basis, for a limited class of catastrophic[, birth-related neurological] injuries" and establishing "the Florida Birth-Related Neurological Injury Compensation Association" (NICA) to administer the Plan). [2] Effective May 2, 2006, the legislature amended section 766.309(1) to add subsection (d), which specifically provides that the ALJ shall determine "[w]hether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s....

...ovo 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 766.309 for a list of the issues that must be resolved by the administrative law judge to reach a determination regarding compensability. Section 766.309, in turn, directs the administrative law judge to decide (1) "[w]hether the injury claimed is a birth-related neurological injury," as that term is defined in section 766.302(2); (2) "[w]hether obstetrical services were delivered by a...

...a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital"; and (3) "[h]ow much compensation, if any, is awardable pursuant to s[ection] 766.31." § 766.309(1)(a)-(c), Fla. Stat. (2000). Here, the administrative law judge decided each of the three issues listed in section 766.309(1)....

...However, finding nothing in the act permitting him to rule on appellant's claim that she is immune from a civil action for damages by virtue of the provisions of section 766.303(2), the administrative law judge declined to do so. Appellant acknowledges that section 766.309(1) directs the administrative law judge to make findings as to the three issues listed there....

...Both the Second and the Fourth Districts have held that the act does not give administrative law judges jurisdiction to decide claims of immunity. All Children's Hosp., Inc. v. Dep't of Admin. Hearings, 863 So.2d 450, 456 (Fla. 2d DCA 2004) ("[t]here is nothing in section 766.309 or elsewhere in [the act] that gives the [administrative law judge] any responsibility or authority to determine ......

...See § 766.304, Fla. Stat. Although the appellants did not want to seek recovery under the Plan, they were compelled to do so before they could resume their civil action. They therefore filed an administrative petition seeking the necessary determinations under section 766.309, Florida Statutes, regarding the applicability of the Plan for the injuries sustained by the child....

...See § 766.304, Fla. Stat. Although the appellants did not want to seek recovery under the Plan, they were compelled to do so before they could resume their civil action. They therefore filed an administrative petition seeking the necessary determinations under section 766.309, Florida Statutes, regarding the applicability of the Plan for the injuries sustained by the child....

...13 The ALJ must consider, but is not bound by, the recommendation of the medical advisory panel. § 766.308(1), Fla. Stat. (Supp.1998). Under the 1998 version of NICA, the ALJ is expressly required to make three independent findings “based upon all available evidence.” § 766.309(1), Fla. Stat. (1997). First, the ALJ must determine whether the claim is a birth-related neurological injury. § 766.309(l)(a), Fla. Stat. (1997). Second, the ALJ must determine whether the injury was caused by a participating health care provider, as defined in section 766.302(7). § 766.309(l)(b), Fla. Stat. Finally, if the first and second requirements are met, the ALJ must determine the amount of the award without any regard for fault. §§ 766.309(l)(c), 766.31(1), Fla....

...and Ferguson , the Second District certified conflict with O’Leary, M.A., and Behan . The conflict is based on divergent views over the scope of the ALJ’s duties in the NICA claims process. 14 The Second District held that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine ......

...that notice under section 766.316 was or was not properly given.” All Children’s Hosp., Inc., 863 So.2d at 456 . 15 In essence, the Second District viewed the ALJ’s subject matter jurisdiction as limited to making the three determinations mandated by section 766.309(1). Under the 1998 statute, the three determinations mandated by section 766.309(1) were (a) whether the injury claimed is a birth-related neurological injury; (b) whether the obstetrical services were delivered by a health care provider that participates in the NICA Plan; and (c) the amount of any compensation....

...s the exclusive remedy for the covered injuries. The other district courts of appeal took a broader view of the ALJ’s subject matter jurisdiction. Each of these courts found jurisdiction in other provisions of the NICA statutory scheme, outside of section 766.309(1)....

...r 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compen-sable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...Resolving the Conflict Question Again, the narrow question we must resolve is whether the 1998 version of NICA gives the ALJ jurisdiction to determine if the notice mandated by section 766.316 was provided. As previously stated, we disagree with the Second District’s holding that “[tjhere is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or authority to determine ......

...er 120, as necessary to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compen-sable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...the ALJ has jurisdiction. See, e.g., Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958) (explaining that “a tribunal always has jurisdiction to determine its own jurisdiction”). Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes: If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...2d DCA 2006), the Second District held that for claims made on or after September 15, 2003, an ALJ in a NICA proceeding has exclusive jurisdiction to determine whether the health care provider has given notice as required by section 766.316. This decision rested upon the 2003 amendments made to section 766.309 by chapter 2003-416, section 77 at 89, Laws of Florida (2003), and the September 15, 2003, effective date expressly provided for therein....

...The 1998 and 2001 versions of section 766.304 are identical. . Our resolution of the conflict question is based upon the language of the NICA statute as it existed in 1998. However, for the sake of completeness, we note that our resolution is supported by the 2003 and 2006 amendments to section 766.309. In 2003, section 766.309 was amended to add subsection (4) which states, in applicable part, that "[t]he administrative law judge may issue a final order on compensability and notice which is subject to appeal under s....

...nvolving NICA claims made on or after September 15, 2003, the effective date of the 2003 amendments. See Weinstock, 924 So.2d at 984 . Most recently, on May 2, 2006, chapter 2006-8, Laws of Florida, became law. Chapter 2006-8 added subsection (d) to section 766.309(1) as follows: (1) The administrative law judge shall make the following determinations based upon all available evidence: (d) Whether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s....

claimed is a birth-related neurological injury. Id. § 766.309(l)(a). If the hearing officer finds that the statutory

...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. 1 Section 766.309(1), Florida Statutes (1997), provides that the ALJ must make the following determinations: (a) “[w]hether the injury claimed is a birth-related neurological injury,” (b) “[wjhether obstetrical services were delivered by a partic...

...f Robert and Tammy Bennett, appellees, did not qualify for coverage by the Florida Birth-Related Neurological Injury Compensation Association (NICA). Because the ALJ erred as a matter of law in failing to apply the rebuttable presumption provided by section 766.309(1)(a), Florida Statutes (2001), we reverse and remand for further proceedings....

...ich in turn caused the acute pulmonary arrest suffered several days later. Further, appellants argued that neurological injury occurred before or at delivery. Below, appellants requested the ALJ to apply the presumption of compensability provided by section 766.309(1)(a), Florida Statutes....

...not supported by competent, substantial evidence. § 120.68(7) and (10), Fla. Stat.; see Nagy, 813 So.2d at 159; Carreras v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995). The Rebuttal Presumption under Section 766.309(1)(a) The NICA Plan was established by the Legislature to provide no-fault compensation for birth-related neurological injuries to infants....

...he infant both "permanently and substantially mentally and physically impaired." § 766.302(2), Fla. Stat. If the infant's injury satisfies this statutory definition, the infant qualifies for financial benefits under the NICA Plan. See §§ 766.303, 766.309, and 766.31, Fla. Stat. When considering whether a claimed injury is a "birth-related neurological injury" for the purpose of the plan, an ALJ must consider "all available evidence." § 766.309(1), Fla. Stat. The appellants, the various medical providers, argue that, given the presumption created by section 766.309(1)(a), the injury to Tristan is within the scope of the NICA Plan....

...The Bennetts conceded in the stipulation that currently "Tristan is permanently and substantially mentally and physically impaired," but they claim that her "current condition occurred outside of labor, delivery and immediate post-delivery resuscitation...." Thus, they submit, her injuries fall outside the scope of the Plan. Section 766.309(1)(a), Florida Statutes, 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....

...There was no dispute below concerning whether Tristan has sustained a neurological injury. Given the stipulation and the ALJ's findings of fact, we hold that the ALJ erred as a matter of law in not applying the presumption of compensability. Under section 766.309(1)(a), the rebuttable presumption does not expressly require a showing that the neurological injury occurred during labor, delivery or in the immediate post-delivery period....

...injury in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant both "permanently and substantially mentally and physically impaired." Importantly, neither section 766.302(2) nor section 766.309(1)(a) requires that neurological damage be manifest during "labor, delivery, or resuscitation in the immediate postdelivery period." It is "oxygen deprivation or mechanical injury" which must occur during "labor, delivery, or resuscitation in the immediate postdelivery period" under the statutory scheme....

...That is, as the ALJ further found, "Tristan's metabolic acidosis and multi-organ system failure support the conclusion that she suffered a hypoxic ischemic insult [i.e., oxygen deprivation] before, during, and likely immediately following delivery." Based upon these findings, the section 766.309(1)(a) presumption is triggered....

...Under these facts, the time between Tristan's delivery by caesarean section and the events through October 3 constituted the "immediate postdelivery period in the hospital" for purposes of the NICA Plan. We are not persuaded that legal representatives of an injured claimant can ignore or waive the presumption under section 766.309(1)(a). Under this section, the *71 presumption arises upon the presentation of evidence demonstrating the required injury. While it is true that claimants bear the initial burden of proof under section 766.309(1)(a) and under the act generally, it is also true that the NICA Plan is intended to reduce malpractice claims brought under traditional tort law....

...aused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall arise that the injury is a birth-related neurological injury.... § 766.309(1)(a), Fla. Stat. It seems completely clear that the purpose of the presumption provided by 766.309(1)(a) is to aid a claimant in proving the prerequisite elements to a NICA claim....

...ice was appropriate. The ALJ agreed that Appellant’s claim was compensable under the NICA Plan but time-barred pursuant to section 766.313 and explained in part: Before compensation may be awarded under the NICA Plan, in addition to section 766.309(1), the ALJ must determine in section 766.316 whether: Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns...

...exclusive remedy provision, thereby entitling the patient to proceed with a medical malpractice lawsuit against the physician for damages arising out of the birth of a child with birth-related neurological injuries.”) (Emphasis added). Pursuant to section 766.309(1)(d), Florida Statutes (2015), ALJs “ha[ve] the exclusive jurisdiction” to make “factual determinations regarding the notice requirements in s....

...The administrative law judge rejected Appellant’s claim under the Birth-Related Neurological Injury Compensation Plan, § 766.301, Fla. Stat. et seq., because it was filed too late and was time-barred. But Appellant also raised the notice issue, which the statute allowed her to do. § 766.309(1), Fla....

...In turn, the ALJ issued a straightforward order concluding that “Petitioner’s Petition is time-barred pursuant to section 766.313 but is otherwise compensable under the NICA Plan.” This is an appealable “final order on compensability and notice” that Appellant had an explicit statutory right to appeal. § 766.309(4), Fla....

...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. Stat. (“No civil action may be brought until the [compensability] determinations under s. 766.309 have been made by the administrative law judge.”)....

...Stat. (“Upon determining that an infant has sustained a birth-related neurological injury and that obstetrical services were delivered by a participating physician at the birth, the administrative law judge shall make an award providing compensation. . . .”); see also § 766.309(4), Fla....

...two paragraphs from Exposito; both misreading the relevant Plan statutory provisions and misunderstanding the limited reach of quasi-judicial power vis-à-vis that of the courts’ judicial power. A Take the statutory provisions first. Section 766.309(1), Florida Statutes, indeed directs the ALJ to make “the following determinations based upon all available evidence:” a) whether the claimed injury meets the definition of BRNI; b) whether the delivering provider was a “partici...

...as a patient’s exclusive remedy, health care providers must, when practicable, give their obstetrical patients notice of their participation in the plan a reasonable time prior to delivery”). Enter the fourth determination the ALJ may make under section 766.309(1): whether “the notice requirements in s....

...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....

...is covered, NICA frequently offers a lump sum payment of a parental award totaling $100,000, regardless of whether there are one or two parents involved in the claim. Such offer is subject to the subsequent approval of the ALJ. *915 (2) Pursuant to section 766.309, Florida Statutes, the ALJ must make all NICA Awards, which includes the parental award pursuant to section 766.31(l)(b)l., Florida Statutes....

...The Plan is a legislatively created program that provides compensation, irrespective of fault, to parents of children found (1) to have suffered certain birth-related neurological injuries, and (2) to havé been delivered by a participating physician. §§ 766.303, 766.309, Fla....

...pating 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....

...urse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital. (c) How much compensation, if any, is awardable pursuant to s. 766.31. § 766.309(l)(a)-(c)....

...d be prohibited from raising the statute’s immunity provisions as a defense. Whether the ALJ had the jurisdiction to reach these legal conclusions regarding notice is the issue presented in this case. Based on the plain and unambiguous language of section 766.309, the ALJ is authorized to determine whether the injury is a compensable injury under the statute’s definition of such, whether the physician was a participating physician, and how much compensation, if any, is to be awarded....

...Accordingly, we consider any reference to the sufficiency of notice issue in Bayfront to be dicta. Affirmed in part; reversed in part; and conflict certified. SILBERMAN and COVINGTON, JJ„ Concur. . During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads: (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s....

...Ojeda, and this *465 finding is required under Weeks . 1 Therefore, we reverse that part of the Order under review relating to the notice issue raised by Dr. Ojeda in his cross-appeal and remand this case for further proceedings to determine when that relationship was formed. See § 766.309(l)(d), Fla....

...The administrative law judge has the exclusive jurisdiction to make these factual determinations.”); Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705 , 717 n. 18 (Fla.2007) (noting that the 2006 amendment to section 766.309, Florida Statutes, “ ‘clarifies that since July 1,1998, the administrative law judge has had the exclusive jurisdiction to make factual determinations as to whether the notice requirements in s....

...ccede, as suggested by the circuit court, and accept the petition, as filed, where the petitioners have the burden of demonstrating entitlement to benefits under the Plan, but propose to prove a negative: that they are not entitled to such benefits. Section 766.309(l)(a)....

...r 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compen-sable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...Consequently, it is concluded that Eric is permanently and substantially mentally and physically impaired and that Eric has suffered a "birth-related neurological injury," within the meaning of Section 766.302(2), Florida Statutes. Accordingly, the subject claim is compensable under the NICA Plan. Sections 766.302(2), 766.309(2), and 766.31(1), Florida Statutes....

...ysically impaired, the infant was not substantially mentally impaired. In my view, the pertinent statutory provisions that make up the Plan clearly establish that this is a finding of fact to be determined by the ALJ. I find of particular importance section 766.309(1)(a), which provides in pertinent part that: The administrative law judge shall make the following determinations based upon all available evidence: Whether the injury claimed is a birth-related neurological injury....

...the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired ...." § 766.309(1)(a), Fla....

...Florida Birth-Related Neurological Injury Comp. Ass'n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995). [2] In Nagy, the court explained: "A determination of the administrative law judge as to the qualification of the claim for purposes of compensability under s. 766.309 ......

...petition for NICA benefits with prejudice. On appeal, Appellant contends the ALJ failed to apply a statutory presumption that relieves NICA claimants from having to prove when an injury occurred if they show the other elements of a “birth-related neurological injury.” See § 766.309(1)(a), Fla. Stat....

...3d at 837. When a claimant demonstrates the existence of elements (1), (2), and (4) “to the satisfaction of the administrative law judge,” then a rebuttable presumption arises in the claimant’s favor as to the existence of element (3). See § 766.309(1)(a), Fla....

...aimed” in fact meets the definition of a BRNI, but also whether “obstetrical services” were provided by or under the supervision of a physician who had paid an assessment into the Plan (or was exempted) for the year in which the BRNI occurred. § 766.309(1), Fla....

...ecified past and future expenses out of the Plan’s funds. § 766.31(1), Fla. Stat.; see also id. (2) (“The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.”); § 766.309(1)(c), Fla....

....”). 3 The ALJ may also have to adjudicate whether the providers complied with the notice requirement set out in section 766.316, Florida Statutes—if the claimant contests the exclusivity of the award once the claim is determined to be compensable. See § 766.309(1)(d), Fla....

...court correctly construed the term “immediate postdelivery period in a hospital” as used in the Plan’s definition of a BRNI (section 766.302(2)); and whether the district court correctly applied the “rebuttable presumption” provided for in section 766.309(1)(a), Florida Statutes, even though the parents were not making a claim for compensation....

...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. Stat. (providing the ALJ “the full power and authority granted” by chapter 120); § 766.309(1), Fla....

...be compensable, he or she also has legislative authorization to determine any dispute over whether statutorily compliant notice was given, such proper notice being a prerequisite for the public benefit awarded by the ALJ under the Plan to be the exclusive remedy. Cf. § 766.309(1)(d), Fla....

...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 not change the claim’s status as terminated (it having been withdrawn), nor the intervenors’ status as divested of any entitlement to proceed (there no longer being a claim for them to dispute)....

...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....

exempted) for the year in which the BRNI occurred. § 766.309(1), Fla. Stat.; see also § 766.302(7), Fla. Stat

...aimed” in fact meets the definition of a BRNI, but also whether “obstetrical services” were provided by or under the supervision of a physician who had paid an assessment into the Plan (or was exempted) for the year in which the BRNI occurred. § 766.309(1), Fla....

...ecified past and future expenses out of the Plan’s funds. § 766.31(1), Fla. Stat.; see also id. (2) (“The award shall require the immediate payment of expenses previously incurred and shall require that future expenses be paid as incurred.”); § 766.309(1)(c), Fla....

...as provided 3 The ALJ may also have to adjudicate whether the providers complied with the notice requirement set out in section 766.316, Florida Statutes—if the claimant contests the exclusivity of the award once the claim is determined to be compensable. See § 766.309(1)(d), Fla....

...court correctly construed the term “immediate postdelivery period in a hospital” as used in the Plan’s definition of a BRNI (section 766.302(2)); and whether the district court correctly applied the “rebuttable presumption” provided for in section 766.309(1)(a), Florida Statutes, even though the parents were not making a claim for compensation....

...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. Stat. (providing the ALJ “the full power and authority granted” by chapter 120); § 766.309(1), Fla....

...compensable, he or she also has legislative authorization to determine any dispute over whether statutorily compliant notice was given, such proper notice being a prerequisite for the public benefit awarded by the ALJ under the Plan to be deemed the exclusive remedy. Cf. § 766.309(1)(d), Fla....

...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 not change the claim’s status as terminated (it having been withdrawn), nor the intervenors’ status as divested of any entitlement to proceed (there no longer being a claim for them to dispute)....

...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....

...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. Stat. (2016) (“No civil action may be brought until the determinations under s. 766.309 have been made by the [ALJ].”). Pursuant to NICA, an ALJ has exclusive jurisdiction to determine whether a claimed injury is compensable under the plan....

...The ALJ must determine whether a birth-related neurological injury is claimed and “[w]hether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.” § 766.309(1)(b), Fla....

...A plaintiff may not bring suit until an ALJ has made these determinations and, when contested, whether the participating physician, and hospital with the participating physician on its staff, provided the notice to obstetrical patients required by sections 766.316 and 766.309(1)(d) of the Florida Statutes. Before filing suit, plaintiffs served notice of intent to initiate litigation and named other medical providers in a NICA petition....

...The ALJ found that the claims were compensable as to the other medical providers. Plaintiffs, however, did not name Dr. Siegfried in the NICA petition. Dr. Siegfried was not served and did not participate in the administrative proceedings. The ALJ has not made the findings required by section 766.309 as to the claim against Dr....

...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. 766.309 have been made by the administrative law judge.” Plaintiffs did not file a new NICA petition naming Dr....

...Siegfried when they filed the NICA petition. Dr. Siegfried was not served or given an opportunity to participate in the NICA proceedings. Before plaintiffs may proceed with a suit based on Dr. Siegfried’s conduct, an ALJ must make the required determinations under section 766.309. Plaintiffs’ other arguments have no merit and do not warrant discussion....

...r 120, as necessary, to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensa-ble. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge....

...ivil action against [the defendants] would be dismissed.” The motions for leave to intervene were granted. Expósito moved the DOAH to enter a summary final order of dismissal, asserting that the ALJ should find her claim was not compensable under section 766.309, because (as Expósito candidly conceded in her petition for benefits) baby Stephanie weighed less than 2,000 grams at birth and thus could not qualify for compensation under the NICA Plan....

...previously-filed civil cause of action. 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....

...Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311. § 766.303, Fla. Stat. (2010). . The ALJ is required to make additional determinations (not relevant to our discussion) in order for a claim to be compensable under the NICA Plan. See § 766.309(l)(a)-(d), Fla....

...th her civil cause of action. See § 766.304, Fla. Stat. (2010) ("The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 [which include the determination of compensability] have been made by the administrative law judge.'') (Emphasis added)....