author: GRIFFIN, J. SAWAYA, C.J., TORPY, J., SHARP, W., J., PLEUS, J.,

text:
    ADVENTIST HEALTH SYSTEM/SUNBELT, INC., etc., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY etc., et al., Appellees.
    No. 5D02-892.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Rehearing Denied Feb. 18, 2004.

      Robert A. Hannah, Christopher C. Curry and Robin D. Black, of Hannah, Estes & Ingram, P.A., Orlando, and Raymond T. Elligett, Jr., of Sehropp, Buell & Elligett, P.A., Tampa, for Appellant.
    Thomas E. Dukes, III, of McEwan, Martinez & Dukes, P.A., Orlando, for In-tervenors, Michael Geiling, D.O. and Mid-Florida OB/GYN Specialists, Inc.
    Pierre J. Seacord and Gregory M. Krak, of Ringer, Henry, Buckley & Seacord, P.A., Orlando, for Intervenor, Juan Ravelo, M.D.
    John Elliott Leighton, Patricia M. Kennedy, of Leesfield, Leighton, Rubio, Mah-food & Boyers, P.A., and Jay M. Levy, of Jay M. Levy, P.A., Miami, and Lora A. Dunlap, of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellees, Sandra Shoaf and James Shoaf.
    Wilbur E. Brewton and Kelly B. Plante, of Roetzel & Andress, L.P., Tallahassee, for Appellee, Florida Birth-Related Neurological Injury Compensation Association.
   ON MOTION FOR REHEARING EN BANC

GRIFFIN, J.

Upon motion of appellees, we have elected to rehear this case en banc. After consideration of the briefs and en banc oral argument, we withdraw the prior panel opinion and issue the following en banc opinion in its stead.

The Adventist Health System/Sunbelt, Inc., d/b/a Florida Hospital-Altamonte [“Florida Hospital”], and intervenors, Michael Geiling, D.O., Juan Ravelo, M.D., and Mid-Florida OB/GYN Specialists, Inc., appeal an order issuéd by an administrative law judge [“ALJ”] finding that Raven Shoaf [“Raven”] was not subject to compensation under the Florida Birth-Related Neurological Injury Compensation Plan [“the plan”], because she was not permanently and substantially “mentally impaired” within the meaning of the plan. Appellants contend that, based on certain undisputed facts, she was permanently and substantially mentally impaired as a matter of law. We disagree and affirm.

Raven was born at Florida Hospital in Altamonte Springs, Florida, on November 28, 1997. She was deprived of oxygen during birth and sustained serious injuries. Her parents, Sandra and James Shoaf [“the Shoafs”], filed an action for medical negligence in Seminole County circuit court against Florida Hospital, as well as Geiling and Ravelo, the two physicians who provided obstetrical services to Raven’s mother, and Mid-Florida OB/GYN Specialists, Inc. Both obstetricians were “participating physicians” under the plan and the hospital was a participating hospital, but the Shoafs did not file or pursue a claim for benefits under the plan.

The Florida Birth-Related Neurological Injury Compensation Association [“NICA”] intervened in the circuit court action, claiming that Raven’s injuries were subject to the plan. The circuit court abated the action and required the Shoafs to file a petition with the Division of Administrative Hearings to resolve whether Raven was covered by the plan. The NICA statute defines “birth-related neurological injury” to mean an injury which, among other things, renders the infant both “permanently and substantially mentally and physically impaired.” § 766.302(2), Fla. Stat. (1995). (Emphasis added.) The Shoafs’ position was that Raven did not meet the criteria for coverage under the plan because, although she had suffered significant physical impairments, she had not sustained a permanent and substantial mental impairment.

A two-day hearing was held before an ALJ, principally to resolve the issue of mental impairment. The evidence adduced at the hearing showed that Raven had significant and severe physical injuries due to oxygen deprivation. It was essentially undisputed that she has cerebral palsy, which refers to a group of motor disorders caused by an injury to the developing brain. Also, Raven’s CAT scans and MRI’s showed that she had sustained various permanent injuries to her brain. Her imaging studies show that she has damage to both sides of the basal ganglia and thalamus. There was also damage to the white matter surrounding the basal ganglia (which acts as insulation), the hippo-campi, both frontal lobes, both parietal lobes, the corpus callosum, and the cerebral cortex. Most witnesses testified these injuries were diffuse (Le.seleetive), as opposed to global in nature. Her physical injuries include both spasticity and stiffness; when she tries to move, her body goes in the opposite direction and she gets posturing, as well as a wiggly movement. She is unable to walk or talk and has problems holding her head up and directing her gaze. She can crawl or sit up only with assistance. She cannot reach out and hold objects. She is unable to eat by mouth and must wear a diaper. Statistically, a little less than one-half of the children who present with cerebral palsy, as Raven does, are not cognitively impaired.

The dispute in this case concerns whether Raven has a permanent and substantial “mental impairment” in addition to the cerebral palsy. The parents presented several witnesses, including several physicians, Raven’s speech therapist and an occupational therapist, who testified that, despite her physical impairments and the damage shown on the scans, Raven is of normal or above-average intelligence, and can demonstrate that intelligence in many ways. These expert witnesses all agreed that Raven was not “mentally impaired” as a result of her injuries. One witness even testified that Raven may eventually be able to attend classes in a normal classroom, although she may have to have substantial assistance with such things as going to the bathroom and using her feeding tube. These physicians explained that some children with abnormal MRI’s and scans can still be very bright, in part due to “plasticity,” which refers to the ability of the brain of a young child to rewire itself to take on functions that normally would have been assigned to another part of the brain. Witnesses testifying that Raven had normal cognitive functioning attributed her difficulties in communication to her physical problems. This testimony is outlined in detail in the final order in support of the ALJ’s finding that Raven was not “permanently and substantially mentally impaired” within the meaning of the plan. Many of these witnesses had contact with Raven on an ongoing basis, a fact important to the ALJ.

By contrast, witnesses presented by NICA and the intervenors testified that Raven has an I.Q. as low as twenty or thirty due to her injuries and that she has no understanding of the world around her. One of these experts even characterized the belief that Raven was responsive as being nothing more than her parents’ wishful thinking.

In the ALJ’s forty-nine page order exhaustively reviewing the evidence presented by the parties, along with the reports presented by their experts, the ALJ explained his evaluation of the evidence presented to him. He found that Dr. Du-chowny, the pediatric neurologist who opined that Raven had no awareness of the world around her, had examined Raven only for one-half an hour when she was three-and-one-quarter years of age, and his findings conflicted with observations made by her parents. Dr. Waters, who found Raven’s cognitive deficit “significantly large,” also performed a relatively cursory examination, but even she had detailed in her report some responses made by Raven to various stimuli and testing. By contrast, Dr. Brunstrom, who had found that Raven was “cognitively intact,” had examined her on three occasions for a total of nearly eight hours, and the judge quoted extensively from the report, detailing Raven’s responses. He also noted that two other pediatricians with special qualifications in child neurology and a board certified clinical neuropsychologist, expressed opinions consistent with Dr. Brun-strom’s and each had examined Raven for approximately two hours. The judge concluded that those witnesses who testified that Raven was cognitively intact were “well qualified and positioned” to evaluate Raven, while those who testified on behalf of the intervenors were not. Based on his evaluations of the evidence, the judge concluded that NICA and the intervenors had failed to sustain their burden of proving that Raven is mentally impaired within the meaning of the plan:

The medical records and other proof, including the testimony of the various healthcare providers and the videos offered by the parties have been carefully considered. So considered, it must be resolved that the proof does not permit a conclusion to be drawn, with any sense of confidence, that, more likely than not, Raven is permanently and substantially mentally impaired.

Notwithstanding the evidence adduced at the hearing and the ALJ’s factual findings, appellants’ position, simply put, is that Raven was permanently and substantially mentally impaired as a matter of law. For this contention, they rely on Florida Birth-Related Neurological Injury Compensation Ass’n v. Florida Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997) [the “Birnie ” decision].

The Birnie case involved injuries apparently similar to those sustained by Raven in this case. As a result of birth-related events causing oxygen deprivation, Eric Birnie suffered a focal injury to the basal ganglia, an area of the brain which aids the body in performing “physical functions.” Despite severe physical limitations, testing indicated that Eric was average or even above average in his cognitive skills. Eric’s parents nonetheless sought compensation under the plan, claiming that he was “mentally impaired” within the meaning of section 766.302(2), Florida Statutes (1991). NICA denied coverage, and a hearing was held to determine whether Eric’s injury was covered by the plan. Key among the findings of fact made by the Bimie ALJ was:

44. Erie is indisputably permanently and substantially physically impaired. Respondent contends, however, that Eric and his parents are not entitled to compensation under the NICA Plan because he is not substantially mentally impaired. This issue is addressed in more detail in the Conclusions of Law below. As noted above, Eric’s condition is the result of damage to his brain. As a direct result of his injury, Eric will not be able to communicate, attend school or otherwise learn and' develop intellectually without substantial accommodation. His social and vocational development have unquestionably been significantly impaired.

Id. at 1352-1353. In Birnie, the hearing officer rejected the argument that mental impairment should be equated with cognitive functioning. He instead focused on the special accommodations necessary for Eric to develop intellectually and the social and vocational limitations on the child as a result of his injury. The judge found:

61. In sum, it is concluded that, as a direct result of his brain injury and consequent physical limitations, Eric will not be able to translate his cognitive capabilities into adequate learning in a normal manner. Moreover, as a direct consequence of his injuries, Eric’s social and vocational development have been drastically impaired. 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. This interpretation furthers the legislative intent to provide compensation to a limited class of catastrophically injured infants on a no-fault basis to help alleviate the malpractice insurance crisis facing physicians practicing obstetrics.

Id. at 1353 (footnote omitted) (emphasis added). Additional findings were made by the ALJ which were omitted from the supreme court’s opinion, but which are available to this court because the Bimie case was initially decided here. See Florida Birth-Related Neurological Injury Comp. Ass’n v. Florida Div. of Admin. Hearings, 664 So.2d 1016 (Fla. 5th DCA 1995). The ALJ expressed doubt about the reliability of intelligence tests given to children under the age of five (Eric was three years and ten months old when tested), especially when the child has physical limitations as severe as Eric’s. He further noted that “it is impossible to determine whether and to what extent Eric’s level of intelligence and/or his perceptual and processing abilities have been reduced by the injury to his brain, regardless of what his test scores show at this time.” He determined that the results of the intelligence tests should not be given undue weight in deciding whether Eric is substantially mentally impaired. He explained: “Instead, the nature, extent and implications of Eric’s injury should all be taken into account in determining whether Eric has been permanently and substantially physically and mentally impaired.” He also relied on his own meeting with Eric:

60. Eric was present and testified at the hearing in this matter. While he appears to be a happy, charming little boy, it is extremely difficult to understand any of his utterances and he has to pause to gather his thoughts and/or his strength while he is attempting to communicate. Eric has virtually no independent mobility. It is obvious that Eric has suffered a catastrophic injury. The severity of Eric’s physical limitations will greatly restrict his ability to interact with others, to attend school and to otherwise develop in a normal manner. As a consequence, Eric’s ability to achieve the milestones and develop the skills that would enable him to be socially, educationally and intellectually competitive has certainly been impaired. Without question, his occupational opportunities have been drastically affected. The contention that Eric is not “mentally impaired” ignores the totality and pervasiveness of his injury. The results of an intelligence test are only a limited measure of one aspect of mental functioning. Such results should not be given conclusive weight over a consideration of the totality of the impact of the injury on the victim. While Eric’s IQ test may be within normal ranges under certain special conditions, Eric will never be able to test within the “normal” range if the tests are administered in a “normal” manner nor will he be able to develop and use his cognitive ability in a normal way.

The Bimie ALJ then noted that the term “mentally impaired” is not defined in the NICA statute nor is there any delineation of the conditions this term encompasses. He relied on cases discussing “mental impairment” or “mental inability,” that suggested various meanings, including mental weakness, deterioration or damage or any condition which weakens, diminishes, restricts or otherwise damages an individual’s mental activity, not limited solely to intellectual or educational attainment.

He concluded that the term “mentally impaired” should be interpreted in accordance with the purpose of the NICA legislation after consideration of all the circumstances involved in a case. His evaluation of all the evidence presented to him caused him to conclude that Eric was “permanently and substantially mentally impaired.”

NICA appealed the determination that Eric was entitled to compensation. This court affirmed, concluding that the plan did not intend to differentiate between mental and physical impairment, but was intended to cover an infant if there was substantial impairment, either mental or physical. Id. at 1021.

NICA then appealed to the Supreme Court of Florida, which rejected this court’s interpretation of the plan, and' found that the plain language of the statute required both mental and physical impairment. At the close of the opinion, the Supreme Court of Florida approved the hearing officer’s conclusion that Eric had sustained both mental and physical impairment within the meaning of the plan, briefly explaining:

[ 5] 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, ^ye conclude that it is supported by competent and substantial evidence. Consequently, we disapprove the opinion below to the extent that it misconstrues the plain language of the statute, but approve the result, and direct that the case be remanded to DOAH for a determination of the amount of compensation Eric is entitled to under the NICA Plan.

686 So.2d at 1356.

Appellants construe the above-quoted passage from the Bimie decision to create the definition of “substantial mental impairment” as this phrase is used in NICA. According to appellants: “The Bir-nie decision added to the definition of substantial mental impairment by effectively adding a requirement that the child be able to translate any cognitive capabilities into adequate learning in a ‘normal manner.’ ” It is apparent, however, that the Bimie court did not define or redefine “substantial mental impairment.” They simply said that the decision of the ALJ was supported by competent evidence. All this language in Bimie suggests is that, under NICA, the identification of a substantial mental impairment may include not only significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development.

Appellants urge that, although Raven’s brain injuries have not resulted in cognitive impairment, in the sense that they do prevent Raven from learning or thinking, they must, as a matter of law, constitute a “mental impairment” within the meaning of the plan because, like Eric Birnie, she will require substantial accommodation in order to translate normal cognitive capabilities into learning. Apart from the evidence adduced and the findings made in this case, there are many other problems with this position. First, as a definition, it is not the plain and ordinary meaning of the undefined statutory term. The Bimie court made clear that the plain and ordinary meaning of these terms should be applied. 686 So.2d at 1354. Second, it violates the definitional framework approved by the supreme court in Bimie:

‘The Statute is written in the conjunctive and can only be interpreted to require permanent and substantial impairment that has both physical and mental elements.’

Id. at 1356. To say that physical disabilities that impede the cognitive and social development of a child alone are enough to constitute a mental impairment violates the dichotomy identified by the high court in Bimie. If this were the true definition of “substantial mental impairment,” then seemingly most children with cerebral palsy would be classifiable as “substantially mentally impaired,” although the evidence indicates that cerebral palsy and mental defect are two separate injuries. There was expert testimony that children with oxygen deprivation injuries “can be physically disabled, yet be intellectually preserved.” Cerebral palsy is a motor injury which occurs when the circuits in the brain that control movement are damaged, while cognitive injury or impairment occurs when circuits relating to memory or learning are impaired. Furthermore, according to the testimony, oxygen deprivation or hypoxia first attacks those areas of the brain which control motor function, and only secondarily results in damage to mental function.

The Shoafs point out that the interpretation of “mental impairment” urged by appellants in this case contravenes the principle that:

because the [NICA] Plan, like the Worker’s Compensation Act, is a statutory substitute for common law rights and liabilities, it should be strictly construed to include only those subjects clearly embraced within its terms ... [and] a legal representative of an infant should be free to pursue common law remedies for damages resulting in an injury not encompassed within the express provisions of the Plan.

686 So.2d at 1354, quoting Humana of Florida, Inc. v. McKaughan, 652 So.2d 852, 859 (Fla. 2d DCA 1995) (citation omitted). Because the legislature chose not to define the terms used in the test for NICA qualification, these terms are to be given their ordinary meanings. Id. The legislature left the application of the terms they used to the administrative law judges designated by statute to hear these claims and to apply the expertise they develop in carrying out this task to determine from the evidence adduced in each case whether the test for NICA is met.

The dissent expresses concern that our decision condones different outcomes on identical facts. First, nothing suggests that the facts of these two cases are identical. Eric Birnie and Raven Shoaf are two very different individuals. There are certainly similarities in the injury and in the consequent physical impairments. Most important, for purposes of our decision, the Shoafs acknowledge that there was testimony below that, like Eric Birnie, Raven’s physical impairments will require accommodation for verbal communication, schooling and other life activities, even though the testimony was conflicting as to degree.

Courts have always recognized that different juries may reach a different result on similar facts. See e.g., Middleton v. Evatt, 855 F.Supp. 837, 840 (D.S.C.1994). It is common for us to see, for example, that juries have awarded significantly different sums for apparently identical injuries. We similarly see different outcomes when the fact finder is asked to determine whether a particular injury is “permanent” or “not permanent.” These differences arise not because we have an “unprincipled, incoherent system” but because such differences can arise in a principled and coherent system where every individual is guaranteed an opportunity to lay his own case before an impartial arbiter of the facts. In most cases, this is a jury. In cases such as the one before us, the ALJ, as fact finder, brings his own background, training, experience and expertise to the task of weighing and evaluating very sophisticated evidence. The child’s advocate likewise brings his own communication and strategic skills to the fact-finding process; and finally, the evidence in each case will vary in its power to persuade. This will be especially true in cases where the opinions of experts are considered. In Birnie, for example, the ALJ did not appear to be persuaded by the evidence offered to him by NICA of the level of Eric’s intellect and ability to function. We don’t know why; perhaps the evidence wasn’t very good, or perhaps it wasn’t well presented. In any event, it is clear that other facts, and other evidence, including his personal encounter with Eric, persuaded Eric’s ALJ to come to a different conclusion than the ALJ who heard the evidence offered by the Shoafs. In each case, the ALJ appears to have attempted to apply the plain and ordinary meaning of the term “substantial mental impairment” to his evaluation of the evidence. The term is broad enough to encompass more than just damage to cognitive capacity, contrary to appellees’ argument, and more than merely the inability to “translate cognitive capabilities into adequate learning in the normal manner” or “impairment of social and vocational development,” as urged by appellants. Both the ALJ in the Birnie case and the ALJ in this case appear to have understood this and to have done their job conscientiously.

Finally, as judges, we learn, early on, that there are always fact situations at the margins where it is very difficult to determine the side of a line on which a particular decision will fall. That is one reason why our review is limited to whether the decision was supported by substantial competent evidence.

The Birnie ALJ considered the evidence given to him, weighed its credibility and reached a decision about Eric. Likewise, the ALJ in this case considered the evidence given to him, weighed its credibility and made a decision about Raven. Each judge weighed the evidence he was given and reached a result that the evidence supported. The fact that they were different results, even though certain of the evidence was similar, does not make one decision wrong and the other right. Evidence that can support a fact-finder’s conclusion is far different from evidence that compels a particular conclusion.

In affirming the ALJ’s decision in this case, we have done exactly what the high court did in Birnie. We have looked to see whether competent evidence supports the ALJ’s decision. Otherwise, Raven Shoaf and all other similarly injured Florida children will have no right to an individualized determination of mental impairment, but will be bound by the work of the lawyers for Eric Birnie, whose goal was to show that he was mentally impaired. Appellants bore the burden of persuasion in this case that Raven was “substantially mentally impaired” and its evidence was not persuasive to the finder of fact.

AFFIRMED.

PETERSON, THOMPSON, PALMER, ORFINGER and MONACO, JJ., concur.

SAWAYA, C.J., concurs and concurs specially, with opinion, in which PALMER, J., concurs.

TORPY, J., concurs specially, with opinion.

SHARP, W., J., dissents, with opinion.

PLEUS, J., dissents, with opinion, in which SHARP, W., J., concurs.

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.

The Finding That the Infant is Not Substantially and Permanently Mentally Impaired is a Factual Finding Supported by Substantial Competent Evidence

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(l)(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(l)(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, 2003 WL 21310687 (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 Bimie 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) (quoting Seagrave). 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.

Findings of Fact Supported by Substantial Competent Evidence are Conclusively Binding on This Court

“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.

The Birnie Decision

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?

686 So.2d at 1353-54. That was the sole and exclusive issue resolved by the court in Bimie, 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.

Conclusion

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 Bimie 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 in Bimie 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:

I reluctantly concur, but not due to any disagreement that I have with Judge Griffin’s wellreasoned 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 Bimie, 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 ALJ is the factfinder; his conclusions are supported by substantial and competent evidence. The NICA 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 Compensa tion 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 Bimie 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 Bimie 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 Bir-nie, 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 Bimie, 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 Bimie 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.

Adventist Health System v. Florida Birth-Related Neurological Injury, 865 So.2d 561, 566, 2004 WL 19485, *15 (Fla. 5th DCA Jan. 2, 2004).

The initial panel opinion, when read together with Bimie, 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 Bimie 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 Diotionaey, 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 consideratiomthe 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 Bimie.

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 Bimie 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.

      .Section 766.302(2), Florida Statutes (1995), in its entirety provides:
      "Birth-related neurological injury” means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdeliveiy 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.

      . The parties stipulated that Mrs. Shoaf was provided with notice of the plan by her obstetricians. The ALJ also found that proper notice was provided by the hospital.

      . One witness described the difference in reference to New York City. Diffuse injuries occur when specific structures within the city of New York are destroyed, while global injury means all parts of the city sustain damage.

      . Florida and Virginia appear to be the only two states which currently have such plans in place. In its original form, the Virginia statutes defined “birth-related neurological injury” to mean: "an injury that rendered the child nonambulatory, aphasic, incontinent, and in need of assistance in all phases of daily living.” Gibson v. Riverside Hospital, Inc., 250 Va. 140, 458 S.E.2d 460, 462 (1995). The statute was amended in 1990, and again in 2003, to redefine a "birth-related neurological injury” to mean:
      injury to the brain or spinal cord of an infant caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital which renders the infant permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled. In order to constitute a "birth-related neurological injury” within the meaning of this chapter, such disability shall cause the infant to be permanently in need of assistance in all activities of daily living.
      Va.Code Ann. § 38.2-5001 (Michie 2003) (emphasis added).

      . Appellees point out in their brief that Rule 4J 6.001(2)(f)2, Florida Administrative Code, promulgated by the Department of Insurance in June 2000 to govern the method and procedure the NICA medical advisory panel was to use in reviewing NICA claims, defined "substantial mental impairment” to be:
      For a mental neurological impairment to be substantial, the infant must exhibit a severe mental impairment such that the infant has or would score, within a reasonable degree of medical probability, 50 or below on the mental component of the Bayley Scales of Infant Development (between 12-14 months) or the Stanford Binet Intelligence Test (between ages 4-5).
      (emphasis added). Fla. Stat. § 766.308, which established and provided for the medical advisory panel, was part of the NICA statute until its repeal in July 2001.

      . Section 766.302, Florida Statutes, refers to the Plan as established under section 766.303. The statutory provisions that I refer to are found in sections 766.301 — .316, Florida Statutes (2002).

      . The provisions of chapter 120, Florida Statutes, are made applicable by section 766.304, Florida Statutes, which provides:
      The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 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.

      . To quote Dickens' character, Mr. Bumble, commenting on the law: if that be the law, "the law is an ass-an idiot ..." Charles Dickens, Oliver Twist, Ch. 51.

      . 766.301 Legislative findings and intent.-
      (1) The Legislature makes the following findings:
      (a) Physicians practicing obstetrics are high-risk medical specialists for whom malpractice insurance premiums are very costly, and recent increases in such premiums have been greater for such physicians than for other physicians.
      (b) Any birth other than a normal birth frequently leads to a claim against the attending physician; consequently, such physicians are among the physicians most severely affected by current medical malpractice problems.
      (c) Because obstetric services are essential, it is incumbent upon the Legislature to provide a plan designed to result in the stabilization and reduction of malpractice insurance premiums for providers of such services in Florida.
      (d)The costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault. The issue of whether such claims are covered by this act must be determined exclusively in an administrative hearing.
      (2) It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries.

      . Dr. Duchowny testified Raven was mentally and physically impaired. Dr. Waters testified that Raven’s cognitive deficit was "significantly large” or substantial.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    Steven Eugene ISELEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-120.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2004.
    Rehearing Denied Feb. 18, 2004.
    Nathan G. Dinitz, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

The defendant appeals from his conviction for “aggravated assault with a firearm” and the mandatory minimum sentence of three years imprisonment that was imposed. There was evidence at trial establishing that the defendant threatened another motorist with a gun during a traffic confrontation.

The defendant argues he was improperly convicted of aggravated assault with a firearm because: (1) the information charged aggravated assault with a deadly weapon and aggravated assault with a firearm is a greater offense, and (2) the trial court erroneously declined to instruct the jury on aggravated assault with a deadly weapon or to allow it as either a lesser included offense or as an alternative charge on the verdict form. The contention that aggravated assault with a firearm is a greater offense than aggravated assault with a deadly weapon is predicated on the fact that the firearm aspect carries a minimum mandatory sentence of three years imprisonment. See § 775.087(2)(a)(l), Fla. Stat.

During the charge conference the defendant objected to instructing the jury on aggravated assault with a firearm claiming he had been charged with aggravated assault with a deadly weapon. The defendant urged that aggravated assault with a firearm is not the same crime as aggravated assault with a deadly weapon and should not be presented to the jury. The defendant alternatively sought an instruction on aggravated assault with a deadly weapon as a lesser included offense. The verdict form offered three alternatives, guilty of aggravated assault with a firearm, guilty of assault, or not guilty.

The State counters that the jury was properly instructed, that the thrust of the defendant’s position, that aggravated assault with a deadly weapon and aggravated assault with a firearm are separate, distinct offenses, is flawed. The State maintains that aggravated assault with a deadly weapon and aggravated assault with a firearm are sentencing variants of the offense of aggravated assault, not separate and distinct offenses.

Aggravated assault is defined in section 784.021, Florida Statutes, as follows:

(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill; or
(b) With an intent to commit a felony.
(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.088, or s. 775.084.

Aggravated assault as charged here was not based on an assault with an intent to commit a felony. Rather, the gist of the crime of aggravated assault as charged here is found in the character of the weapon with which the assault is made and a deadly weapon must be charged and proved. A firearm is not essential to the offense of aggravated assault with a deadly weapon. However, an information charging and a special verdict finding that the defendant committed an aggravated assault with a firearm, while not enhancing the offense from a third degree felony, does implicate the three year minimum mandatory sentence for use of a firearm found in section 775.087(2), Florida Statutes. State v. Hargrove, 694 So.2d 729 (Fla.1997); Bass v. State, 739 So.2d 1243 (Fla. 5th DCA 1999).

In Fernandez v. State, 570 So.2d 1008 (Fla. 2d DCA 1990), rev. denied, 581 So.2d 167 (Fla.1991), which involved a reversal of an aggravated assault with a firearm conviction because the court failed to instruct on the permissible lesser included offense of discharging a firearm in public, the court analyzed the offense of aggravated assault. Fernandez was charged with aggravated assault “with a deadly weapon, to wit: a firearm.” The State sought the minimum mandatory sentence found in section 775.087(2), Florida Statutes. In discussing the appropriate jury instructions, the Second District observed:

Regarding the assault, the trial court instructed the jury on aggravated assault with a firearm, aggravated assault with a deadly weapon, and assault. The jury instructions and the verdict form logically treated aggravated assault with a deadly weapon as the next less-included offense of aggravated assault with a firearm. The penalty for aggravated assault with a firearm mandated that Mr. Fernandez receive at least three years’ imprisonment, while the penalty for an aggravated assault with any other deadly weapon would have permitted Mr. Fernandez to receive any nonstate prison sanction.

570 So.2d at 1010.

The court ultimately reversed, finding that discharge of a firearm in public, while not a necessarily lesser included offense of aggravated assault with a deadly weapon, was a permissive lesser included based on the language of the charging document and the evidence adduced at trial. Id. The court then explained why the failure to give the instruction could not be deemed harmless error:

Assuming aggravated assault with a deadly weapon is the primary offense and that the firearm merely increases the sentence, then discharge of a firearm in public is the next lesser offense. Since the omitted offense is only “one step” removed from the primary offense, the trial court’s error is per se reversible.[FN2] State v. Abreau, 363 So.2d 1063 (Fla.1978).
FN2. This approach treats the verdict on aggravated assault with a firearm as a special verdict in which the jury first finds the defendant guilty of aggravated assault with a deadly weapon, and next decides that the weapon was a firearm. Technically, the statutory offense of aggravated assault does not make any distinction between assault with a firearm or any other deadly weapon. This distinction is created by section 775.087(2), Florida Statutes (1987). The supreme court apparently anticipates that the state will generally accomplish this result with such a special verdict form. See generally State v. McKinnon, 540 So.2d 111 n. 1 (Fla.1989).

Id.

Fernandez makes clear that the offense at issue in the instant case was aggravated assault with a deadly weapon and that the use of a firearm is a sentencing factor which must be alleged and expressly found by the jury in order to implicate the minimum mandatory found in section 775.087(2), Florida Statutes. As the Fernandez court explained, the distinction between aggravated assault with a deadly weapon and aggravated assault with a firearm is the sentencing consideration found in section 775.087(2).

The jury in this case should have been instructed on aggravated assault with a deadly weapon and then been asked to make a special finding as per the charging document and evidence adduced at trial as to whether that weapon was a firearm. The effect of the instructions given and the verdict form was to bypass the “deadly weapon” aspect and go directly to the firearm aspect. Was it harmful error for the trial court to refuse the defendant’s request for an instruction on aggravated assault with a deadly weapon? The answer is yes. The trial court believed such an instruction was unnecessary because both offenses are third degree felonies punishable by up to five years imprisonment. See § 784.021, Fla. Stat. The trial court noted that under Florida law, “No offense is deemed to be a lesser offense if it carries the same penalty as the crime under consideration.” Standard Jury Instructions in Criminal Cases, 723 So.2d 123, 124 (Fla.1998). See also, Ray v. State, 403 So.2d 956 (Fla.1981). As Fernandez implicitly recognizes, however, the offenses here, while both third degree felonies, do not carry the “same penalty” because aggravated assault with a firearm, unlike with a deadly weapon, carries an enhanced sanction, a minimum mandatory term of three years imprisonment.

While it could be argued that the jury here was merely permitted to eliminate a step in its analysis and verdict and to directly reach the firearm aspect, this streamlining or “short cut” deprived the jury of a fair opportunity to exercise its inherent “pardon” power by returning a verdict of guilt as to the less onerous offense of aggravated assault with a deadly weapon. See State v. Abreau, 363 So.2d 1063 (Fla.1978).

The trial court committed reversible error in failing to instruct on aggravated assault with a deadly weapon. A new trial is required.

PETERSON and ORFINGER, JJ., concur.

      . As our opinion will illustrate, the offense is more accurately labeled aggravated assault with a deadly weapon with the use of a firearm being a sentencing enhancer.

      . See State v. Overfelt, 457 So.2d 1385 (Fla.1984).


author: DAVIS, Judge.

text:
    Jack Carlyle SAWYER, Appellant, v. Scot D. GOLDBERG, Appellee.
    No. 2D03-1440.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2004.
    Rehearing Denied Feb. 17, 2004.
    Jack Carlyle Sawyer, pro se.
    No appearance for Appellee Scot D. Goldberg.
   DAVIS, Judge.

Jack Carlyle Sawyer, a state prisoner, challenges the interlocutory circuit court order denying his insolvency status in his civil suit against Scot Goldberg. Because the court’s order denying insolvency does not fall into one of the categories of ap-pealable nonfinal orders enumerated in Florida Rule of Appellate Procedure 9.130(a)(3)(C), we elect to treat this case as a petition for writ of certiorari under rule 9.030(b)(2)(A).

The trial court entered an order directing the clerk of court not to issue a certificate of indigency to Sawyer in the underlying cause of action, finding that he was not entitled to such benefits under section 57.081, Florida Statutes (2002). Although this particular indigency statute specifically excludes state prisoners, section 57.085 does contain the procedure by which a prisoner may proceed in court without charge.

Based on the record before us, which does not include Sawyer’s affidavit of indi-gency, we cannot determine under which statute Sawyer filed that affidavit. Since the trial court’s order is a proper reading of section 57.081, and since Sawyer has not furnished this court with an adequate record, we cannot conclude that the trial court departed from the essential requirements of law by applying the incorrect statute. We therefore deny Sawyer’s petition for writ of certiorari; however, we do so without prejudice to any right Sawyer may have to file with the trial court an affidavit of indigency under the proper statute.

Denied.

ALTENBERND, C.J., and SILBERMAN, J., Concur.


author: PER CURIAM.

text:
    Cynthia VALENCIC, Petitioner, v. DEPARTMENT OF ENVIRONMENTAL PROTECTION and Sarasota County Utilities, Respondents.
    No. 1D02-3389.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Rehearing Denied Feb. 12, 2004.
    David A. Ludder and Scott A. Randolph, Legal Environmental Assistance Foundation, Inc., Tallahassee, for Petitioner.
    Rory C. Ryan, of Holland & Knight, LLP, Orlando; and Gary K. Oldehoff, Office of Sarasota County Attorney, Sarasota, for Respondents.
   PER CURIAM.

APPEAL DISMISSED. See Fla. R. Civ. P. 1.230; Env. Confederation of Southwest Florida, Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 210 (Fla. 1st DCA 2003) (stating “the rights of an inter-venor are subordinate to the rights of the parties”); Colucci v. Greenfield, 547 So.2d 224 (Fla. 3d DCA 1989); Humana of Florida, Inc. v. Dep’t of Health & Rehabilitative Servs., 500 So.2d 186 (Fla. 1st DCA 1986).

ERVIN, BOOTH, and BROWNING, JJ., concur.


author: TORPY, J. PALMER, J.

text:
    Lynn MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3101.
    District Court of Appeal of Florida, Fifth District.
    Jan. 9, 2004.
    Rehearing Denied Feb. 19, 2004.

      Steven G. Mason, of Law Office of Steven G. Mason, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

The issue in this case is whether Appellant’s actions in stopping, talking to police, permitting police to enter her home and in surrendering a small quantity of drugs were objectively voluntary acts or mere acquiescence to police authority. The lower court determined that Appellant’s acts were voluntary and denied her motion to suppress the drugs. We conclude, based upon the totality of the circumstances, that a reasonable person would have felt compelled to comply with the officers’ requests, and that Appellant’s encounter with police amounted to an unlawful seizure within the contemplation of the Fourth Amendment to the United States Constitution. Therefore, we reverse the order that denied Appellant’s motion to suppress.

We accept the trial court’s findings of fact because there is substantial competent evidence to support them. However, our application of the law to the facts, including our determination of whether Appellant’s consent was objectively voluntary, is de novo. State v. Glatzmayer, 789 So.2d 297 (Fla.2001); Taylor v. State, 848 So.2d 1191 (Fla. 5th DCA 2003).

On February 24, 2001, the Orange County Sheriffs Office received via telephone an anonymous tip that unnamed individuals at 3812 Edland Drive were involved in narcotics activity. The tip was referred to a special “tip squad,” which is assigned to investigate such complaints using a tactic known as “knock and talk.” This is a tactic used when information about a suspect is not sufficient to support the issuance of a search warrant. Instead of simply ignoring the complaint, the “tip squad” goes to the location of the alleged criminal activity, in this case a house, and attempts to obtain consensual entry and permission to search.

It was not until March 14, 2001, that officers from the “tip squad” commenced to perform a “knock and talk” upon Appellant’s residence at 3812 Edland Drive. No new information was received in the three weeks since the tip was received. Shortly after noon on the 14th, three agents arrived simultaneously at Appellant’s home. They approached her just as she and a male companion were leaving the residence to run some errands. The officers were wearing gun belts and black smocks that displayed the words “Orange County Sheriff’ in conspicuous letters. One of the officers, Deputy Alvarado, encountered Appellant and her companion, who by this time were halfway between the house and Appellant’s car. The other officers positioned themselves at the edge of the driveway in the street where their presence could be observed by Appellant. After displaying his credentials, Alvarado told Appellant that he was there to investigate a complaint and asked her if she lived at the residence. Appellant replied “yes,” but told Alvarado that she was leaving. Alvarado then told Appellant that his inquiry would not take long but that he “needed to speak with her reference some possible drug activity.” Alvarado also told Appellant it would be better if she went inside so that neighbors would not see the investigation taking place. She acquiesced. Although Alvarado told Appellant that he did not have a search warrant, he never told her that she had a right to refuse to cooperate.

Alvarado and another agent followed Appellant inside the residence. The third agent suggested that her companion wait outside with him. Once inside the residence, Alvarado asked Appellant for her identification, which he retained in his possession throughout the ensuing colloquy. He then told her that he was there to investigate narcotics activity, that he had information that cannabis had been smoked in the house, and he asked her if there were drugs in the house. She replied in the affirmative. He then asked her to retrieve the drugs. She escorted the deputies to the bedroom where she retrieved a small amount of marijuana, a small piece of crack cocaine and a pipe from her purse. At that time, she began to cry, explaining to deputies how recent deaths in her family had led her to use the drugs. The deputies confiscated the drugs, searched no further, and left the residence without effecting an arrest. Appellant was later charged by information.

Although expressing some concern with the tactics of the police, especially with the failure of police to inform Appellant that she had the right to refuse their requests, the trial court denied the motion to suppress, expressing the belief that his decision was mandated by our decision in Hosey v. State, 627 So.2d 1289 (Fla. 5th DCA 1993). Although Hosey bears some similarity with the instant case, we do not find Hosey determinative of the instant case.

The state concedes that the officers here did not have reasonable suspicion or probable cause, and a warrant could not have issued. The state further concedes that, had Appellant been driving away in her vehicle upon the arrival of police, the police could not have lawfully stopped her. Because Appellant was encountered prior to reaching her vehicle, however, the state urges that the recovery of the drugs was the product of a mere “consensual encounter,” wherein no reasonable suspicion or probable cause is required, citing Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). For the reasons stated herein we find the state’s argument to be untenable.

The state is correct that not every encounter with the police constitutes a seizure within the contemplation of the Fourth Amendment. Id. at 434, 111 S.Ct. 2382. Rather, a seizure only occurs when the police, “by means of physical force or show of authority, [have] restrained the liberty of a citizen.” Id. Here, no physical force was used by police. Therefore, we must determine if a seizure occurred based on a “show of authority.” This determination is made by consideration of the “totality of the circumstances” of the encounter. Id. at 439, 111 S.Ct. 2382. If the circumstances would cause a reasonable person to conclude that he or she is “not free to decline the officers’ requests or otherwise terminate the encounter,” then the encounter is a seizure requiring, at a minimum, reasonable suspicion as a prerequisite. Id.

Among the factors that the court should consider in its analysis are the place and time of the encounter, the number of officers, and the words and actions of the officers. United States v. Broomfield, 201 F.3d 1270, 1274 (10th Cir.2000); United States v. Glass, 128 F.3d 1398,1406 (10th Cir.1997). No one factor is disposi-tive. Id. Rather, it is the court’s responsibility to consider all factors in the amalgam and reach the conclusion suggested by the “totality of the circumstances.” Bostick, 501 U.S. at 439, 111 S.Ct. 2382. Here, our review of the relevant factors leads us to the conclusion that a reasonable person would not have felt free to decline the officer’s requests.

The first factor, the place of the encounter, the front yard of Appellant’s home, rather than a public place, militates against the state. United States v. Griffin, 7 F.3d 1512, 1518-19 (10th Cir.1993). When confronted by police in a public place, a citizen may simply choose to ignore the police, secure in the belief that further intrusion is unlikely because his or her identity is unknown by police. When the encounter occurs at a citizen’s own residence, conversely, the citizen does not enjoy the anonymity of a random street encounter. Thus, the intrusion into the citizen’s life involves not only a physical intrusion on the citizen’s property but also the likely realization by the citizen that the government knows who he or she is and where he or she lives. This unsettling revelation is further exacerbated when, as here, the officers make clear to the citizen that he or she is the suspect in a specific criminal investigation. See Royer v. State, 389 So.2d 1007, 1018 (Fla. 3d DCA 1979), (indication that criminal investigation had focused upon defendant “provided another clear sign that he had in fact been taken into custody”), aff'd, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983). See also Glass, 128 F.3d at 1406-07 (statements by police that indicate a particularized focus on individual as suspect in crime is factor suggesting seizure rather than consensual encounter). Although somewhat mitigated by the time of day, these circumstances certainly foster a more intimidating atmosphere in the mind of a reasonable person.

As to the number of officers, three, the State argues that three officers are necessary in these situations to ensure officer safety. We are not insensitive to this concern, but the issue is not the validity of the police purpose in choosing its manpower commitment. Rather, we must determine how a reasonable person would perceive three officers arriving at one’s home, simultaneously, dressed as these officers were dressed. See Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 1847, 155 L.Ed.2d 814 (2003) (under objective test, “officer’s motivation of self-protection does not speak to how their actions would reasonably be understood”). Obviously, this considerable show of authority was sufficient to create the perception that a major criminal investigation was underway. We think this circumstance would cause a reasonable person to feel less inclined to rebuff the officers’ requests. U.S. v. Mendenhall, 446 U.S. 544, 554-555, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980) (presence of “several officers” is circumstance that might indicate a seizure).

The final and perhaps most significant factor in this case, the words and actions of the officers, convinces us that the encounter was not objectively consensual. Although Appellant indicated that she was leaving when first approached, the officer persisted by stating that he “need[ed] to speak with her” regarding drugs and that it would not take long. Certainly, in this context, a reasonable person could conclude that the agent’s “need” was based upon some bona fide authority to detain her, rather than a mere desire to follow up on a three-week-old, vague, anonymous tip. See Kaupp, 123 S.Ct. at 1847, 123 S.Ct. 1843 (where youth was roused from sleep, statement by police that “we need to go and talk” left no option but “to go”). Furthermore, after having dissuaded Appellant from leaving, the officer suggested that she accompany him into her home (allegedly out of concern for her, even though no neighbors were present). Thereafter, she was separated from her companion, who remained under observation by the third officer, and the officer retained her identification throughout the ensuing interrogation. See Golphin v. State, 838 So.2d 705 (Fla. 5th DCA 2003) (retention of license by police, although not per se seizure, is factor to be considered). We think that these words and acts by the police, together with the other circumstances of the encounter, would clearly lead a reasonable person to believe that compliance with the “requests” of the officers was required.

As a final point, we wish to address a concern expressed by the trial judge. Had the officer told Appellant that she had the right to decline his requests, a different case might have been made by the state. Although the officer had no obligation to advise Appellant of her right to refuse, a simple warning might have eliminated any ambiguity caused by the officers’ other words and acts. See Broomfield, 201 F.3d at 1274 (failure to advise of right to refuse is factor that court can consider in consensual encounter determination).

REVERSED.

PETERSON, J., concurs.

PALMER, J., dissents, with opinion.

PALMER, J.

I respectfully dissent.

Although the majority indicates that they accept the trial court’s findings of fact because there is substantial competent evidence in the record to support them (as we are required to do), in reversing the trial court’s suppression ruling the majority actually either disregards certain of those findings of facts or places an interpretation on testimony different from that placed by the trial court, thereby improperly reevaluating the credibility of the witnesses giving such testimony.

The most significant factual finding made by the trial court relates to the consensual nature of the initial encounter between the police officer and Ms. Miller. In that regard, the trial court factually found the following:

But I do find, from the evidence, that they encountered Ms. Miller. She was coming out of her home, they walked up, can we talk to you, she, according to the first witness, apparently said yes.

Given the court’s other factual findings, including that no weapons were drawn, the police officer’s tone was conversational, the officers did not block Ms. Miller’s egress, and the officer told Ms. Miller that they did not have a warrant to search her home, the trial court’s findings that Ms. Miller’s actions were objectively voluntary, and not mere acquiescence to police authority, must be affirmed.

In Taylor v. State, 855 So.2d 1 (Fla.2003), our Supreme Court recognized the consensual nature of an encounter which showed far greater evidence of acquiescence to police authority than that which occurred in this case. In Taylor, deputies knocked on the door of Taylor’s mobile home and someone answered the door and invited the officers to come in. After the officers entered the home, Taylor appeared and was observed removing something from his pocket and shoving it under the cushion of the chair where he was sitting. Taylor was handcuffed, placed in a squad car, and then asked for his consent to search the mobile home and his car. Taylor gave his consent and advised the police where they could find what they were looking for. Under those circumstances, the Supreme Court found that the consent given by Taylor was valid and therefore the evidence seized was not subject to suppression. The court noted:

... the initial contact Taylor had with the police on December 30, 1997 constituted a consensual encounter. We have recognized that “[t]he United States Supreme Court has defined a consensual encounter as one in which a reasonable person would feel free to disregard the police and go about the person’s business.” Voorhees v. State, 699 So.2d 602, 608 (Fla.1997).

Id. at 15. The court in Taylor went on to state:

In Denehy v. State, 400 So.2d 1216, 1217 (Fla.1980), we held that “[u]nder ordinary circumstances the voluntariness of the consent to search must be established by a preponderance of the evidence.” In analyzing whether a defendant’s consent to a search is voluntary, a court should consider the totality of the circumstances around the granting of consent to the search. See Norman v. State, 379 So.2d 643, 646-47 (Fla.1980). When the validity of a search rests on consent, the State has the burden of proving that the necessary consent was obtained and that it was freely and voluntarily given. See [Reynolds v. State, 592 So.2d 1082 (Fla.1992)]. In a situation where there is neither an illegal detention nor other illegal conduct by the plaintiff, as we have concluded in the instant case, the State must establish the voluntariness of the consent by a preponderance of the evidence. See Id. Here, the record reflects the State met its burden.

Id. at 17.

Similarly, here, the trial court had sufficient evidence before it to find that the State met its burden of establishing the voluntariness of Ms. Miller’s consent. Accordingly, I would affirm.

      . The encounter in Hosey occurred on a public conveyance, not at the citizen's home. More importantly, in Hosey, the words and actions of the police were clearly less coercive.

      . Appellant calls this a “knock and talk” case. The parties, accordingly, expend much argument on this issue by providing decisions from federal and state courts of other jurisdictions that have addressed the propriety of the so-called “knock and talk” tactic. Appellant urges that we declare this procedure to be a per se violation of the Fourth Amendment. Although no binding authority has been cited by either party, we have found no case, nor have the parties cited any to us, in which such a per se rule was adopted. Because we do not view this as a "knock and talk” case, we find it unnecessary to resolve this issue at this time.

      . Appellant labels this area "curtilage” and suggests that entry upon this area without a warrant is a per se violation of the Fourth Amendment. We disagree. The area in question was readily visible from the adjacent public street. Although private property, it was not designated as such. Therefore, it was an area open to entry by salespersons, postal workers, meter readers and the like. Mere entry upon this portion of the property, at least during daylight hours when entry by such strangers would not be unexpected, did not therefore require a warrant. See Oliver v. United States, 466 U.S. 170, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984) (whether exterior of home constitutes "curtilage” for Fourth Amendment protection depends upon factors that determine if reasonable expectation of privacy exists). See also, Davis v. United States, 327 F.2d 301 (9th Cir.1964) (absent express orders against possible trespass, no per se Fourth Amendment violation for officers to approach front door of house during daytime). C.f. Rogers v. Pendleton, 249 F.3d 279 (4th Cir.2001) (remaining in yard after speaking with homeowner violated Fourth Amendment).

      . In this case, there was no "search” of the home since Miller voluntarily handed over the illegal drugs to the police officer when they asked whether she had any. Accordingly, the majority’s comments about the retaining of her identification once inside the house are irrelevant.


text:
    Roger ARTHUR, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-607.
    District Court of Appeal of Florida, Fifth District.
    Jan. 13, 2004.
    Rehearing Denied Feb. 13, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Lloyd v. State, 524 So.2d 396 (Fla.1988).

GRIFFIN, PLEUS and ORFINGER, JJ., concur.


author: KELLY, Judge.

text:
    AMERISURE INSURANCE COMPANY, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 2D02-4757.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
    Rehearing Denied Feb. 17, 2004.

      K. Mitch Espat of Smith Clark Delesie Bierley Mueller & Kadyk, Tampa, for Appellant.
    David B. Kampf and Sonya S. Hammac of Ramey, Ramey & Kampf, P.A., Tampa, for Appellee.
   KELLY, Judge.

Amerisure Insurance Company appeals a final summary judgment in favor of State Farm Mutual Automobile Insurance Company in an action in which State Farm sought reimbursement under section 627.7405, Florida Statutes (2001), for personal injury protection (“PIP”) benefits it paid to its insured. We affirm.

Kelly Edman, accompanied by her five children, was driving a commercial vehicle owned by Wright Construction Corporation and insured by Amerisure. A southbound automobile crossed the median and struck Mrs. Edman’s automobile. Mrs. Edman received PIP payments from her personal insurer, State Farm, for the injuries she and her children sustained in the accident. State Farm then sought reimbursement from Amerisure pursuant to section 627.7405. Amerisure refused, arguing that in the absence of fault on the part of Mrs. Edman or Wright Construction Corporation, it was not obligated to reimburse State Farm for the PIP payments it made to Mrs. Edman.

Section 627.7405 provides:

Notwithstanding any other provisions of ss. 627.730-627.7405, any insurer providing personal injury protection benefits on a private passenger motor vehicle shall have, to the extent of any personal injury protection benefits paid to any person as a benefit arising out of such private passenger motor vehicle insurance, a right of reimbursement against the owner or the insurer of the owner of a commercial motor vehicle, if the benefits paid result from such person having been an occupant of the commercial motor vehicle or having been struck by the commercial motor vehicle while not an occupant of any self-propelled vehicle.

Amerisure argues that this statute must be interpreted to require fault on the part of the commercial owner as a prerequisite to reimbursement; otherwise, the statute would violate the equal protection clauses of the United States and Florida Constitutions. Amerisure contends that affording reimbursement to private vehicle insurers without regard to fault on the part of the commercial vehicle owner creates an arbitrary distinction between insurers and owners of private vehicles and insurers and owners of commercial vehicles.

An equal protection challenge to a statute that does not involve a fundamental right or suspect classification is evaluated by the rational basis test. Fla. High Sch. Activities Ass’n v. Thomas, 434 So.2d 306 (Fla.1983). If the classification bears a rational relationship to a legitimate governmental objective, this court must uphold the statute. Id. at 308. Amerisure rightly concedes that section 627.7405 serves a legitimate governmental purpose. That provision was added to the PIP statute in 1978 at the same time the legislature amended the statute to require owners of commercial vehicles to carry PIP coverage. The legislative history indicates that the amendments were designed in part to reduce overall automobile insurance rates.

Thus, the issue becomes whether it is conceivable that the legislative classification bears some rational relationship to that objective. See id. The party challenging the statute has the burden to establish that there is no conceivable factual predicate that would rationally support the classification. Id. Amerisure has failed to satisfy this burden. In fact, Amerisure’s argument recognizes that the effect of the statute is to redistribute some of the risk of loss from insurers providing coverage for private vehicles to insurers providing coverage for commercial vehicles which, in turn, could be expected to reduce premium rates, at least for owners of private vehicles. Amerisure’s real complaint is that this is an “inequitable” way for the legislature to achieve its objective of lowering insurance rates, not that is has no relationship to that objective. However, the rational relationship test does not focus on whether the method chosen by the legislature is the wisest or most effective means of accomplishing its objective. Id. at 309.

We also note that although the constitutionality of section 627.7405 has never been addressed by this court, two other district courts have addressed the issue and reached opposite conclusions. In Florida Farm Bureau Mutual Insurance Co. v. Tropicana Products, Inc., 456 So.2d 549 (Fla. 3d DCA 1984), the Third District held, without discussion, that to construe the statute as providing for reimbursement without regard to fault “would be unconstitutional as it would create two classifications of owners and insurers of vehicles, i.e., owners and insurers of commercial vehicles and owners and insurers of all other vehicles, without a rational basis for such classification.... ” The Fifth District in Dealers Insurance Co. v. Jon Hall Chevrolet Co., 547 So.2d 325 (Fla. 5th DCA 1989), held that the plain language of the statute provided for reimbursement without regard to fault and that the statute bore a reasonable relationship to the legitimate state interest of regulating insurance. We agree with the Fifth District’s reasoning in Dealer’s Insurance and certify conflict with Florida Farm Bureau. Accordingly, we affirm the summary judgment in favor of State Farm.

Affirmed; conflict certified.

SALCINES and DAVIS, JJ., Concur.

      . We have jurisdiction in this case pursuant to Florida Rule of Appellate Procedure 9.030(b)(4)(A).

      . Ch. 78-374, § 7, Laws of Fla.