ADVENTIST HLT v. BIRTH-RELATED NEURO

SAWAYA, C.J., concurring and concurring specially.

I concur in the well-reasoned majority opinion. I write to explain why I believe, based on the pertinent statutory provisions that govern awards under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan), that affirmance is required in this case. I also write to explain why I disagree with Appellant's assertion that the central issue in the instant case — whether the infant is substantially and permanently mentally impaired — is an issue of law. Additionally, I feel compelled to explain why I disagree with the argument advanced in the dissenting opinion that the courts should formulate a legal standard to be applied by the administrative law judge (ALJ) in determining whether an infant has sustained a substantial mental impairment.

Based on my analysis of the pertinent statutory provisions, I conclude that: 1) the ALJ's finding that the infant is not mentally impaired is purely a factual finding that is supported by substantial competent evidence; 2) this finding is conclusively binding on this court; and 3) the decision in Florida Birth-Related Neurological Injury Compensation Ass'n v. Florida Division of Administrative Hearings, 686 So.2d 1349 (Fla. 1997) (hereinafter "Birnie"), does not, as Appellant seems to argue, convert this issue of fact into an issue of law. Hence, in my view, this court has no alternative but to affirm the decision of the ALJ denying compensation under the Plan to the infant. Each of these conclusions shall be discussed in the following sections.

In order to obtain compensation under the Plan, the injured infant must sustain a "birth-related neurological injury." In section 766.302(2), the Legislature provides the following definition:

"Birth-related neurological injury" means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired. This definition shall apply to live births only and shall not include disability or death caused by genetic or congenital abnormality.

(Emphasis added).

In the instant case, the ALJ specifically found that the infant did not sustain a compensable injury because, although the infant was substantially physically 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.

(Emphasis added). This statute also provides that a presumption arises that the injury is a birth-related neurological injury as defined in section 766.302(2) "[i]f 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. . . ." § 766.309(1)(a), Fla. Stat. (2002) (emphasis added). In my view, these statutory provisions clearly establish that the issue whether an infant was substantially permanently physically and mentally impaired is a pure question of fact to be resolved by the ALJ. It is neither an issue of law nor a mixed issue of law and fact, contrary to the dissent's argument.

I find further support for my conclusion that this is a factual issue from decisions that have addressed the issue whether an injured plaintiff suffered an injury that satisfies the permanency threshold under section 627.737(2). This court has consistently held that the issue whether the plaintiff suffered a permanent injury is an issue of fact for the jury to resolve. See Wright v. Ring Power Corp., 834 So.2d 329, 331 (Fla. 5th DCA) ("[T]he issue of whether a plaintiff has sustained a permanent injury is generally one for the jury.") (quoting Tolivert v. Estate of Scherer, 715 So.2d 358 (Fla. 5th DCA 1998); Laberge v. Vancleave, 534 So.2d 1176 (Fla. 5th DCA 1988), review denied, 545 So.2d 1369 (Fla. 1989)), review denied, 846 So.2d 1148 (Fla. 2003). Other courts adopt the same general rule. McElroy v. Perry, 753 So.2d 121 (Fla. 2d DCA 2000);Evans v. Montenegro, 728 So.2d 270, 271 (Fla. 3d DCA) ("Permanency determinations are generally made by juries."), review denied, 741 So.2d 1135 (Fla. 1999); Kwader v. Pandolfo, 711 So.2d 1382 (Fla. 5th DCA 1998); Wolski v. Clark, 746 So.2d 466, 467 (Fla. 2d DCA 1997) ("Since reasonable minds could differ as to whether Mr. Clark sustained a permanent injury as the result of the accident, a question of fact existed which should have been submitted to the jury for its consideration.") (citation omitted); State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995); Ketchen v. Dunn, 619 So.2d 1010 (Fla. 2d DCA 1993).

In cases involving the issue of permanency under section 627.737(2), the jury is instructed to determine by "the greater weight of the evidence" whether the plaintiff suffered significant and permanent loss of an important bodily function, significant and permanent scarring or disfigurement, or a permanent injury. Fla. Std. Jury Instr. (Civ.) 6.1(d). The comments appended to this standard jury instruction indicate that definitions are not necessary because these issues are factual issues to be resolved by the jury based on the evidence presented.

I, therefore, reject the arguments advanced by Appellant and the dissent that this court should formulate a definition of the term "substantial and permanent mental impairment" or that this court should promulgate a legal standard to determine whether an infant has sustained a substantial and permanent mental impairment. It is abundantly clear that the Legislature has expressed its intention that the ALJ determine this factual issue based on all of the evidence which, of necessity, includes medical expert testimony, much like juries are required to do in personal injury cases. Like the majority, I also reject the notion that the court in Birnie established a definition of, or legal standard for, substantial mental impairment that has become binding precedent in all future cases involving infants with similar injuries. Had the court done so, it certainly would have violated its own admonition that "it is a basic principle of statutory construction that courts `are not at liberty to add words to statutes that were not placed there by the Legislature.'"Seagrave v. State, 802 So.2d 281, 287 (Fla. 2001) (quoting Hayes v. State, 750 So.2d 1, 4 (Fla. 1999)); see also Woodham v. Blue Cross Blue Shield of Fla., Inc., 829 So.2d 891, 899 (Fla. 2002) (quotingSeagrave). Perhaps a definition or legal standard may be of some benefit in certain cases. However, it is the prerogative of the Legislature, not the courts, to formulate the definition or standard and incorporate it into the statutory provisions that govern awards under the Plan.

"A determination of the administrative law judge as to qualification of the claim for purposes of compensability . . . shall be conclusive and binding as to all questions of fact." § 766.311(1), Fla. Stat. (2002). An appellate court must affirm the findings of fact if they are supported by competent substantial evidence, and the court may not substitute its judgment for that of the agency as to the weight of the evidence on any disputed finding of fact. See § 120.68(7), (10), Fla. Stat. (2002); Nagy v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So.2d 155, 159 (Fla. 4th DCA 2002); Wallace Corp. v. City of Miami Beach, 793 So.2d 1134 (Fla. 1st DCA 2001); Carreras v. Florida Birth-Related Neurological Injury Comp. Ass'n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995). 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 . . . shall be conclusive and binding as to all questions of fact." § 766.311(1), Fla. Stat. (1997). An ALJ's findings of fact are reversible on appeal when they are not supported by competent substantial evidence in the record or where the agency's interpretation of the law is clearly erroneous. See § 120.68(7), (10), Fla. Stat. (1997); Carreras v. Fla. Birth-Related Neurological Injury Comp. Ass'n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995).

813 So.2d at 159.

As I have previously discussed, the issue whether an infant has sustained a substantial permanent mental impairment is a pure question of fact. Therefore, in my view, the determining factor is whether the ALJ's finding that the infant is not substantially mentally impaired is supported by substantial competent evidence in the record. If it is, then the ALJ's finding is conclusive and may not be disturbed by this court. The term "competent substantial evidence" has different meanings depending on the context in which it is used. See Florida Power Light Co. v. City of Dania, 761 So.2d 1089 (Fla. 2000); Florida Bd. of Med. v. Florida Acad. of Cosmetic Surgery, Inc., 808 So.2d 243 (Fla. 1st DCA 2002). When used in the context of fact-finding by an agency or ALJ, the term refers to a standard of proof. When used in the context of appellate review, as it is here, the term "substantial competent evidence" refers to a standard of review and equates to "legally sufficient evidence," which in essence means evidence that is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached." Florida Bd. of Med., 808 So.2d at 257 (quoting DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957)). "Pursuant to this standard, the reviewing body may not reweigh the evidence, make determinations regarding credibility or substitute its judgment for that of the agency, even if the record contains some evidence supporting a contrary view."Id. (citing Dunham v. Highlands County Sch. Bd., 652 So.2d 894, 896 (Fla. 2d DCA 1995); Panama City Hous. Auth. v. Sowby, 587 So.2d 494, 497 (Fla. 1st DCA 1991)).

I have reviewed the evidence and testimony in the instant case, which is thoroughly and succinctly discussed in the majority opinion, and, in my view, it is "sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached" by the ALJ that the infant is not substantially and permanently mentally impaired. Therefore, the ALJ's factual finding that the infant did not suffer a substantial mental impairment is supported by substantial competent evidence and is conclusive and binding on this court.

As a premise to my discussion of the Birnie decision, I emphasize that the standard of review applicable to findings of fact is whether they are supported by substantial competent evidence in the record. Nagy. The standard of review that applies to the legal issues is whether the decision is clearly erroneous. Id. In Birnie, the Florida Supreme Court stated:

We are left with the hearing officer's finding — which is properly predicated on a reading of the statute in the conjunctive — that Eric Bernie is "permanently and substantially mentally and physically impaired and . . . has suffered a `birth-related neurological injury' within the meaning of section 766.302(2)." Having thoroughly reviewed the record and the hearing officer's final order, we conclude that it is supported by competent and substantial evidence.

686 So.2d at 1356 (emphasis added). The court in Birnie reviewed the finding that the infant suffered a substantial mental and physical impairment under the substantial competent evidence standard, which clearly indicates that the court considered this a factual finding and not an issue of law. The issue of law decided by the Birnie court was whether the infant must sustain both mental and physical impairment, and the court held that both injuries must be found in order to be compensable under the Plan.

Moreover, the Birnie court made it clear what issue it intended to resolve when it stated:

This case presents this Court with a straightforward question of statutory interpretation and construction. That is, should the word "and," as used in the phrase" substantially mentally and physically impaired" in section 766.302(2) be read in the conjunctive, or must it be replaced with the word "or" and read in the disjunctive to remain consistent with the legislature's intent in enacting the NICA statute?

689 So.2d at 1353-54. That was the sole and exclusive issue resolved by the court in Birnie, and I reject Appellant's argument that the court established a legal standard to determine whether an infant is substantially and permanently mentally impaired. Had it intended to establish such a legal standard, the court surely would have analyzed the relevant statutory provisions that I have discussed and it would have explained why and how it could convert a factual issue the Legislature clearly intended to be resolved by the ALJ, based on all of the relevant evidence, into a legal issue.

I believe that the issue whether the infant is substantially and permanently mentally impaired is a purely factual issue to be decided by the ALJ based on all of the relevant evidence. I also believe that the factual finding by the ALJ that the infant is not mentally impaired is supported by competent substantial evidence in the record. Therefore, that factual determination is conclusive and binding an all of the parties and this court. In my view, this court has no alternative but to affirm the decision of the ALJ that the infant is not entitled to compensation under the Plan.

Finally, I totally reject the argument advanced by Appellant that the court in Birnie established a legal standard to determine whether an infant is substantially and permanently mentally impaired. For the court to have done so would be tantamount to rewriting legislation, which the judiciary is not permitted to do. If a definition or legal standard relating to mental or physical impairment under the Plan is to have any effect or meaning, it must be adopted by the Legislature. Therefore, in my view, the argument advanced by Appellant that the court did so inBirnie is a gross exaggeration of the holding in that case and is nothing more than an attempt to embroider that decision with a worthless trinket.

Palmer, J., concurs.

TORPY, J., concurring specially: Case No. 5D02-892

I reluctantly concur, but not due to any disagreement that I have with Judge Griffin's well-reasoned opinion. Rather, my reticence is based upon my belief that the legislature did not intend the result reached here today. However, given the language used in the statute and the dictates of Birnie, I do not believe that we can effectuate the intent of the legislature without overstepping our bounds. I suggest that the legislature look at the Virginia Statute and determine if that provides a more workable definition consistent with its intent.

SHARP, W., J., dissenting.

Had we been free in this case to write on a clear page, I might have agreed with the majority. The AJL is the factfinder; his conclusions are supported by substantial and competent evidence. The ALJ statute appears to require both permanent and substantial mental and physical impairment. § 766.302(2), Fla. Stat. The statute is clearly written in the conjunctive.

However, in my view, the Florida Supreme Court's opinion in Florida Birth-Related Neurological Injury Compensation Ass'n. V. Fla. Div. Of Adm. Hearings, 686 So.2d 1349 (Fla. 1977), the "Birnie" decision, added meat to the bones of that definition by affirming the conclusion of the ALJ in that case — that the infant in question was "both mentally and physically impaired" within the meaning of the statute. As noted in the majority opinion and Judge Pleus' dissenting opinion in this case, the child in that case, Eric Bernie, was brain damaged in a birth-related injury in a manner almost identical to Raven, the child in this case. Given the facts found in both cases, Eric was less severely damaged than Raven.

In spite of experts' testimony, which was accepted by the ALJ in Birnie, that Eric had average or above cognitive skills, the judge concluded that because of the physical damage to his brain resulting in severe physical limitations, "Eric will not be able to translate his cognitive capabilities into adequate learning in a normal manner," and that "Eric's social and vocational development have been drastically impaired." That, he concluded, amounts to a child who is "permanently and substantially mentally and physically impaired," under the NICA statutory definition. 686 So.2d at 1353. The Florida Supreme Court approved this interpretation of the statute. In my view, we are bound to follow this interpretation until either the Legislature or the Supreme Court changes the definition of a "birth-related neurological injury." § 766.302(2), Fla. Stat.

Equal justice under the law. That is a goal for which courts must strive. That is a goal missed here by this court's conclusion that Eric is a NICA baby, but Raven is not. Such disparity of treatment under the NICA law will, I agree with Judge Pleus, lead to a lack of uniformity of application, lack of guidance and precedent, and ultimately lack of respect for "the law." Clearly, help is needed here. I hope it will come by the Florida Supreme Court's additional guidance and clarification, or by the Legislature taking another look at the definition of what they intended to cover as "birth-related neurological injuries" under the NICA statute. Right now, it is up for grabs.

PLEUS, J., dissenting.

The overall result of the majority decision will be to eliminate any meaningful standards in determining whether mental impairment exists under section 766.302(2), Florida Statutes. I therefore dissent.

It goes without citation that an administrative law judge's (ALJ) factual findings are to be sustained where supported by substantial competent evidence. However, that principle does not control the outcome of this appeal which instead concerns the application of a legal standard to the factual findings made by the ALJ. Thus, the ALJ's interpretation of the Plan must be reviewed de novo. Nagy v. Florida Birth-Related Neurological Injury Comp. Ass'n, 813 So.2d 155 (Fla. 4th DCA 2002); Fluet v. Florida Birth-Related Neurological Injury Comp. Ass'n, 788 So.2d 1010 (Fla. 2d DCA 2001).

The premise of the majority opinion is that application of the Act is purely a factual determination. This case does not involve solely findings of fact as the majority opinion would have you believe. The error lies in the application of an incorrect standard to factual findings. Because of this, I disagree. I also disagree that the sole test to be applied is whether the decision is supported by substantial competent evidence. That test is irrelevant if the ALJ applied the wrong legal standard.

The failure of the Legislature to define "substantial mental impairment" in Chapter 766 does not mean that is entirely up to each ALJ to develop a definition of the term applicable to their particular case. Such a scheme results in an unprincipled, incoherent system in which some children fall within NICA, while other very similarly situated children are deemed to fall outside the Plan, solely because the ALJ in their particular case elected to believe one expert who opines the child was not substantially mentally impaired as that expert understood the term.

This case provides a glaring example of this incoherence. Both the en banc majority and the dissent in our initial panel opinion correctly recognized that the evidence in the instant case was virtually identical to that involved in Florida Birth Related Neurological Injury Comp. Ass'n v. Florida, Division of Admin. Hearings, 686 So.2d 1349 (Fla. 1997) ( Birnie decision) concerning substantial mental impairment. How the majority can suggest otherwise is beyond comprehension. The ALJ in Birnie found the child suffered a substantial mental impairment and the supreme court affirmed. The ALJ here, on strikingly similar evidence, found otherwise, and the dissent to the initial panel opinion and now the en banc majority believes this court has no option but to affirm, given that expert testimony was adduced that young Raven did not suffer a substantial mental impairment. Thus, similarly situated, seriously injured children are deemed to have entirely different remedies based entirely on the ALJ's decision of which expert witness' concept of substantial mental impairment to accept in the case before them. The majority of this court now places its imprimatur of approval on this system.

This court's en banc decision ignores the result in Birnie and then compounds the error by failing to articulate an adequate legal standard to assist ALJs in their analysis of the evidence of substantial mental impairment presented to them.

In Birnie, the ALJ found that, despite having normal intelligence test scores, the child could not communicate, attend school or otherwise learn and develop intellectually without substantial accommodations, and that the child's social and vocational development were impaired. In affirming the ALJ's conclusion that the child suffered a permanent and substantial mental impairment, the supreme court's opinion necessarily holds that such evidence constitutes a substantial mental impairment. To suggest, let alone hold, that another ALJ could come along, and on strikingly similar evidence conclude that no substantial mental impairment was established, and that this court is duty bound to affirm, seems incomprehensible. Yet that is precisely what has occurred. I instead believe we are duty bound to give Birnie a common sense reading and to apply the legal standard set out therein to this case.

Even if the en banc majority is unwilling to ascribe this precedential value to Birnie, it should, at the very least, offer a legal standard to ALJs charged with determining substantial mental impairment. The legislature's failure to define the term does not mean that there are no legal standards applicable to such a determination. Rather, this court must consider the objectives of NICA and adopt the commonly-accepted meaning of the term. The majority opinion fails to do so.

The initial panel opinion, consistent with Birnie, did exactly this, explaining that a substantial mental impairment exists where the child, despite normal intelligence scores, will experience abnormal difficulties in developing and using his or her cognitive abilities:

The final order in this case failed to include any justification for deviating from the legal standard approved in the Birnie decision and is entirely inconsistent with the legislative intent to provide compensation to infants who suffer birth-related neurological injuries on a no-fault basis. The test for substantial mental impairment is not whether cognitive reduction exists, but rather whether substantial accommodations are required for the exercise of cognitive functions. Mental impairment, in its plain and simple meaning, exists where, as here, the child will experience abnormal difficulties in developing and using her cognitive abilities.

It is conceivable that one can have substantial physical impairment without any mental impairment such as a person paralyzed from the waist down. In our view, the substantial accommodations must relate to the development of one's cognitive functions and not simply accommodations for physical impairments. To conclude that Raven is not mentally impaired because she has some degree of cognitive ability is absurd. Mental impairment should not be limited to impairment of cognitive functioning as measured by intelligence tests.

The initial panel opinion, when read together with Birnie, creates a workable framework for ALJs to apply in analyzing evidence of mental impairment. This framework is consistent with the purpose of NICA to provide a limited system of compensation irrespective of fault for those infants which suffer birth-related neurological injuries. § 766.301, Fla. Stat. As Judge Altenbernd noted in Fluet:

The purpose of the statutory plan is to limit a participating physician's exposure to civil liability in cases where the doctor's professional involvement could make him or her a defendant in a lawsuit.

788 So.2d at 1012.

The Legislature has provided an exclusive no-fault benefit in lieu of the traditional common law tort remedy. It is not for this court to second guess the wisdom of this legislative decision, nor to thwart the purpose of the legislation. The majority opinion in this case ignores the ordinary meaning of mental impairment and thwarts the purpose of the Legislature.

By failing to adopt a meaningful standard for "substantial mental impairment," the majority allows skillful lawyers and "expert" witnesses to make an end run around NICA by giving them free reign to convince an ALJ that an injured child is not eligible for NICA simply because the child has a "normal cognitive function." Then, at trial, surely as the sun will rise tomorrow, those lawyers will turn around and argue to a jury that the child's brain damage is severe and permanent in the sure hope of hitting the proverbial "home run" on pain and suffering damages. Such a result does not limit physicians' exposure to civil liability or ensure that their malpractice insurance premiums will be "stabilized or reduced."

In the instant case, the evidence is undisputed that Raven sustained severe and significant physical injuries due to oxygen deprivation at birth. She has cerebral palsy, is unable to walk or talk and has problems holding her head up and directing her eyes. She cannot crawl or even sit up without assistance, and cannot reach out and hold objects. She is unable to eat by mouth.

On the issue of mental impairment, both sides acknowledge that Raven's CAT scans and MRI clearly show that she sustained various severe and permanent injuries to her brain at birth, including both sides of the basal ganglia and thalamus. There is also damage to the white matter surrounding the basal ganglia, the hippocampi, both frontal lobes, both parietal lobes, the corpus callosum and the cerebral cortex. All the witnesses agreed that these catastrophic injuries have the potential for far-reaching, permanent brain damage.

The only testimony that Raven is not mentally impaired is the opinion testimony of Dr. Brunstrom that Raven is of normal intelligence. That conclusion is in dispute on this issue but we are bound to accept the findings of fact of the ALJ that Raven is of normal intelligence.

Based upon Dr. Brunstrom's conclusion that Raven has normal intelligence, the ALJ found that Raven is educable and can function in a school environment with "adaptive technology and assistance." As a matter of law, the ALJ erred because he failed to take into account the reality that Raven will experience abnormal difficulties in developing and using her cognitive abilities.

The initial panel opinion likewise does not stand for the proposition that a child with substantial physical disabilities automatically possesses the mental impairment required by the statute. Indeed, the opinion expressly recognizes that a child can have a substantial physical impairment without having a substantial mental impairment.

Our initial panel opinion and the Birnie decision provide a solid framework for analyzing the concept of "permanent and substantial mental impairment." The test for substantial mental impairment is not whether any cognitive ability exists, but rather whether substantial accommodations are required for the exercise of cognitive functions. Mental impairment exists when a child will experience abnormal difficulties in developing and using his or her cognitive abilities. The substantial accommodations must relate to the development of one's cognitive function, and not to accommodations for physical impairment. This is a reasonable test and one which conforms with both the clear language of the statute and the announced intent of the Legislature.

Conversely, the ALJ's analysis in this case and the majority opinion offer no real guidelines and suggest that the determination of substantial mental impairment is solely dependent on I.Q. or "cognitive ability." This is an absurd result. Today's en banc decision purports to give effect to the well-settled rule of statutory construction that courts should rely on the common meaning of terms used but not defined by the Legislature. In reality, however, it does just the opposite. If this principle were truly applied, the common meaning of "substantial mental impairment" would be offered.

For instance, "mental" may be defined as "of or relating to the total emotional and intellectual response of an individual to his environment." WEBSTER'S NINTH NEW COLLEGIATE DICTIONARY, p. 742 (1989). The term "impairment" means "to damage or make worse by or as if by diminishing in some material respect." Id. p. 603. The common meaning of these terms contemplates that substantial mental impairment exists where a person's emotional and intellectual response to his or her environment is diminished in a material respect. Where, as here, substantial accommodations are necessary before a person can exercise their cognitive functions, a substantial mental impairment exists.

The majority's effort to equate the result of this case to that of a civil jury trial where different juries may reach different results on similar facts omits a critical consideration: the fact finder reaches its decision after being instructed on the applicable law which is uniform throughout the jurisdiction. In this case, the ALJ applied his own definition of the statutory term "substantial mental impairment," a definition at odds with logic, the intent behind the Plan and the decision in Birnie.

Factually similar cases should result in similar results where there is no justification for deviating from a rule of law which was adopted with reasoned consideration. Reliance on prior decisions is an essential part of the judicial system. At the very least, this court should certify as a question of great public importance whether the supreme court in Birnie established a legal standard applicable in analyzing whether a substantial mental impairment exists.

It is difficult to overstate the deleterious effect of the en banc decision. Those sympathetic to a litigant's ability to pursue his or her common law remedies may applaud today's decision. However, what happens in the next case when we find ourselves duty-bound to affirm an ALJ who, in reliance on today's en banc decision, finds that a child who has suffered devastating brain damage identical to Raven's, but whose common law claims may be barred by the statute of limitations, is not within NICA because an expert witness says the child seems to be "cognitively intact"?

Let's turn the tables and consider another example. Assume no negligent act caused brain damage at birth. Raven desperately needs to participate in the Plan. NICA allows entry into the program on a no-fault basis so negligence is not an issue. By failing to announce any standard, today's en banc decision permits the ALJ to exclude the mentally impaired child with some cognitive function from participating in the Plan. This would leave Raven with no resources to treat her injuries.

SHARP, W., J., concurs.