Tabb V. Florida Birth-Related Neurological Injury Compensation Association

Appellant Clarice Tabb challenges a final order of an administrative law judge (ALJ) on her claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan) contained in sections 766.301-.316, Florida Statutes (2001). As a threshold matter, Tabb challenges the subject matter jurisdiction of the ALJ to determine whether she received the required notice, pursuant section 766.316, that appellee Memorial Healthcare Group (Memorial) participated in the Plan.*fn1 Tabb also argues that the ALJ erred in applying a presumption that the NICA Plan brochure was delivered to her because Memorial introduced evidence of a routine of providing such brochures to patients at pre-registration. We find that the ALJ did have subject matter jurisdiction to determine the notice issue, but because we agree, as Tabb argues, the ALJ erroneously applied a presumption, we reverse and remand this case for further proceedings.