COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Senior Judge Coleman∗

Argued at Richmond, Virginia 

VIRGINIA BIRTH-RELATED NEUROLOGICAL 

 INJURY COMPENSATION PROGRAM 

 OPINION BY 

v. Record No. 0827-00-2 JUDGE JERE M. H. WILLIS, JR. 

 FEBRUARY 13, 2001 

ADA F. YOUNG, MOTHER OF 

 WILLIAM T. YOUNG, JR. 

 FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION 

 John J. Beall, Jr., Senior Assistant Attorney 

General (Mark L. Earley, Attorney General; 

Frank S. Ferguson, Deputy Attorney General, 

on brief), for appellant. 

 Grady W. Donaldson, Jr. (Schenkel & 

Donaldson, P.C., on brief), for appellee. 

 ∗

 Judge Coleman participated in the hearing and decision of 

this case prior to the effective date of his retirement on 

December 31, 2000 and thereafter by his designation as a senior 

judge pursuant to Code § 17.1-401. 

 The Virginia Birth-Related Neurological Injury Compensation 

Program (Program) appeals the decision of the Workers' 

Compensation Commission (commission) awarding benefits and 

expenses to Ada F. Young, mother of William T. Young, Jr., 

(Tommy), pursuant to Code § 38.2-5009. The Program contends the 

commission erred when it found that the Program failed to rebut 

the statutory presumption contained in Code § 38.2-5008(A). For 

the reasons that follow, we affirm. 
I. THE ACT

 The Virginia Birth-Related Neurological Injury Compensation 

Act (Act) was established to provide compensation to families 

whose neonates suffer "birth-related neurological injuries." 

See Code §§ 38.2-5000 through 38.2-5021. Code § 38.2-5001 

defines a "birth-related neurological injury" as follows: 

 "Birth-related neurological injury" 

means 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. 

Code § 38.2-5008(A) provides as follows: 

A rebuttable presumption shall arise 

that the injury alleged is a birth-related 

neurological injury where it has been 

demonstrated, to the satisfaction of the 

Virginia Workers' Compensation Commission, 

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 

motorically disabled and (i) developmentally 

disabled or (ii) for infants sufficiently 

developed to be cognitively evaluated, 

cognitively disabled. 

 If either party disagrees with such 

presumption, that party shall have the 

burden of proving that the injuries alleged 

are not birth-related neurological injuries 

within the meaning of the chapter. 

There are two theories of presumptions, the "Thayer theory" 

and the "Morgan theory." The "Thayer theory," or "bursting 

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bubble theory," holds that "the only effect of a presumption is 

to shift the burden of production with regard to the presumed 

fact." City of Hopewell v. Tirpak, 28 Va. App. 100, 116, 502 

S.E.2d 161, 169 (1998) (citations omitted). Under the "Thayer 

theory," if countervailing evidence is produced by the party 

against whom the presumption operates, "the presumption is 

'spent and disappears,' and the party who initially benefited 

from the presumption still has the burden of persuasion on the 

factual issue in question." Id. The Thayer theory has been 

criticized because it gives presumptions an effect that is too 

"slight and evanescent" in view of the substantial policy 

reasons underlying their creation. See id.

The second theory, the "Morgan theory," holds that the 

"presumption should have the effect of shifting both the burden 

of production and the burden of persuasion on the factual issue 

in question to the party against whom the presumption operates." 

Id. This interpretation of the presumption's effect ensures 

that the "presumption, particularly one created to further 

public policy, has 'enough vitality to survive the introduction 

of opposing evidence which the trier of fact deems worthless or 

of slight value.'" Id. at 117, 502 S.E.2d at 169 (quoting 9 

Wigmore, Evidence § 2493g (Chadbourn rev. 1981)). 

The Program contends that Code § 38.2-5008(A) sets forth a 

"Thayer theory" presumption. The Program argues that it needed 

only produce evidence that Tommy's injury was not a 

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"birth-related neurological injury" to be relieved of paying 

compensation. Alternatively, the Program contends that even if 

Code § 38.2-5008(A) sets forth a "Morgan theory" presumption, it 

sufficiently rebutted the presumption by proving that Tommy's 

condition does not result from a "birth-related neurological 

injury." 

 "The law of presumptions in Virginia reflects both the 

Thayer theory and the Morgan theory." Tirpak, 28 Va. App. at 

117, 502 S.E.2d at 169. In Tirpak, we concluded that "there is 

no single rule governing the effect of all presumptions; 

instead, the effect of a particular presumption on the burdens 

of production and persuasion depends upon the purposes 

underlying the creation of the presumption." Id. at 118, 502 

S.E.2d at 171. 

 The purpose of Code § 38.2-5008(A) is to implement a social 

policy of providing compensation to families whose neonates 

suffer birth-related neurological injuries. To give full effect 

to this policy, the presumption must be clothed with a force 

consistent with the underlying legislative intent. Application 

of the "Thayer theory" would be inconsistent with the policy 

objectives of Code § 38.2-5008(A). The presumption set forth in 

Code § 38.2-5008(A) must be construed according to the "Morgan 

theory." Therefore, the presumption set forth in Code 

§ 38.2-5008(A) shifts to the Program both the burden of 

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production and the burden of persuasion on the issue of 

causation. 

II. BACKGROUND

Tommy, who suffers from severe cerebral palsy, was born on 

March 30, 1989, after twenty-seven weeks gestation. Ms. Young, 

his mother, had undergone an amniocentesis on January 6, 1989, 

and began leaking amniotic fluid immediately thereafter. As a 

result, Ms. Young had a placenta previa1 and developed 

oligohydramnios2 and chorioamnionitis.3

Shortly before Tommy was born, Ms. Young arrived at 

Virginia Baptist Hospital with abdominal pains, a bloody vaginal 

discharge and frequent contractions. A fetal heart monitor was 

attached and indicated no fetal distress. Because of the 

suspected chorioamnionitis, placenta previa and prematurity of 

the pregnancy, Ms. Young was transferred to the University of 

Virginia Hospital. 

Upon arrival at the University of Virginia Hospital at 

9:03 p.m., Ms. Young was scheduled for an emergency caesarian 

section surgery. A fetal heart monitor was attached and 

indicated no fetal distress. Tommy was delivered at 10:40 p.m. 

 1

 "[A] placenta which develops in the lower uterine segment, 

in the zone of dilatation . . . ." Dorland's Illustrated 

Medical Dictionary 1023 (26th ed. 1985). 

2

 "[T]he presence of less than 300 ml. of amniotic fluid at 

term." Id. at 919. 

3

 "[I]nflammation of fetal membranes." Id. at 264. 

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The obstetrician noted that the umbilical cord was wrapped once 

around Tommy's neck. The pH of the umbilical cord was 7.30, 

described as "good, not poor." The placenta was noted to be 

"foul smelling," indicating intrauterine infection. 

Upon delivery, Tommy was not breathing and had no heart 

beat. Progress notes indicate that at birth, he was "small; 

limp & aphallic." CPR was administered. By 10:47 p.m., after 

administration of a surfactant, chest compressions, and 

"vigorous" bagging, Tommy's heart and respiratory rates 

elevated. His color improved, and he was moving. His Apgar 

scores were "0" at one minute, "1" at five minutes, and "5" at 

ten minutes. 

Tommy was transferred to the neonatal intensive care unit 

and placed on a ventilator. Dr. Robert Darnell, an attending 

physician, noted that, upon arrival in the intensive care unit, 

Tommy "decompensated." The doctors were unable to maintain 

oxygen levels above eighty percent "despite vigorous bagging." 

A right-sided pneumothorax was noted, and a chest tube was 

placed. Tommy required vigorous bagging for one to two hours. 

By 2:30 a.m., an attending physician noted that despite 

receiving the surfactant, treatment for the pneumothorax, and 

maximum ventilator pressures, Tommy's arterial blood gases were 

not satisfactory. He mentioned that withdrawal of life support 

should be considered if Tommy's condition did not improve within 

ten to twelve hours. 

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By 3:47 a.m. on March 31, 1989, blood work indicated that 

Tommy's "moderate" hypochromia should be downgraded to "slight." 

By 10:10 a.m., x-rays revealed a residual right-sided 

pneumothorax as well as a pneumomediastinum. By 12:30 p.m., the 

pneumothorax had resolved. The pneumomediastinum resolved by 

11:20 p.m. A head ultrasound taken that day was interpreted as 

"normal," with no evidence of intracranial hemorrhage. 

Tommy's oxygen requirement slowly decreased during his stay 

in the intensive care unit. He was discharged to Virginia 

Baptist Hospital on July 7, 1989, with oxygen being administered 

through nasal cannula. His primary diagnosis was 

bronchopulmonary dysplasia. 

Upon admission to Virginia Baptist Hospital, Tommy's 

neurological exam was "normal" except for "jitteriness." On 

August 10, 1989, Dr. Teresa Brennan of the Virginia Baptist 

Hospital Neurodevelopmental Clinic performed a "baseline 

neurodevelopmental exam." Dr. Brennan noted that Tommy was "at 

risk for developmental delay in light of extreme prematurity, 

low birth weight, initial asphyxia, and severe respiratory 

distress with subsequent bronchopulmonary dysplasia." She 

further noted that Tommy's exam was nevertheless "encouraging," 

given his degree of prematurity. 

On August 15, 1989, Tommy was discharged home from Virginia 

Baptist Hospital. Following an apneic episode on August 23, 

1989, he was readmitted. Dr. Stephen Bryant, the admitting 

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physician, noted that Tommy "has an extensive medical history 

secondary to a 28 week gestation, asphyxia, and hypoplastic 

lungs." Dr. Brennan performed a follow-up neurological exam on 

October 26, 1989, and noted "delayed motor and expressive 

language skills and borderline language skills." She noted that 

she discussed with Tommy's parents "the possibility of there 

having been some significant brain injury related to his 

perinatal problems." By March 22, 1990, Dr. Brennan diagnosed 

Tommy with cerebral palsy. 

On August 1, 1997, Dr. Mark Abel, with the Commonwealth of 

Virginia's Children's Rehabilitation Center, opined that Tommy 

had "spastic quadriparesis secondary to Cerebral Palsy (birth 

injury)." An April, 1998 Campbell County Public Schools 

diagnostic summary stated that Tommy's "intellectual abilities 

fall in the mildly mentally deficient range." 

Pursuant to the Virginia Birth-Related Neurological Injury 

Compensation Act (Act), a panel of physicians reviewed Tommy's 

medical records to determine whether his neurological condition 

was caused by the birth process. Dr. John Seeds, chairman of 

the Medical College of Virginia Hospital's Department of 

Obstetrics and Gynecology, stated in a September 25, 1998 report 

that the panel reviewing Tommy's records concluded that 

"infection or complications of extreme prematurity or both were 

the causes of this child's problems," and not the birth process. 

Dr. Seeds noted that "the neonate was described as foul 

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smelling, as was the fluid, consistent with intrauterine 

infection." He also stated that, although the Apgar scores were 

low, the umbilical cord pH was 7.30, "which is strong evidence 

against intrapartum hypoxemia." He further stated that "fetal 

heart rate monitoring does not show any pattern consistent with 

labor related fetal compromise." 

The Program requested Dr. John Partridge, an obstetrician, 

to review Tommy's medical records. In an October 2, 1998 

report, Dr. Partridge opined that "the baby's problems cannot be 

said to have been caused during the window of time around the 

delivery." At the hearing, Dr. Partridge testified that it was 

"entirely possible" Tommy had some asphyctic injury during the 

last weeks prior to birth but it was "more likely" that the 

injury was after the birth. He testified: 

 Because the baby was premature, the 

baby's air sacks could not hold air, they 

couldn't let air get in and out well. Even 

the mechanical ventilator had difficulty 

doing its job because the baby's respiratory 

system was poorly developed. The problem 

lies in that right at birth and immediately 

after birth we have the least likely 

scenario of injury. The baby had a poor 

Apgar at birth. This can certainly indicate 

a problem either before or during the 

delivery process. But with resuscitation 

the baby did perk up, and it was common -- 

is moving its extremities and having better 

color by the time it reached the nursery. 

Plus the initial acid base level that we 

call a PH level looked good, not poor. If 

the baby had really suffered inside the 

uterus or during the delivery time of the 

C-section, that acid base level or PH should 

have been poor, not good. In addition, the 

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scans that they did on the baby's head 

initially showed no hemorrhage. That 

included a CT scan, and a head ultrasound. 

He opined that if Tommy had been injured inside the uterus, 

leading to bleeding inside the brain, that bleeding should have 

been visible on one of the scans taken in the first two days 

after birth. He stated: 

 So my conclusion is that the baby's 

problem was caused by the air sack 

difficulty, the bronchial pulmonary 

hypoplasia or lack of development as we 

would phrase it [b]ecause of the prematurity 

[and] the fact that it had not had the 

normal amount of amniotic fluid around it to 

be able to develop those air sacks. 

He agreed that "certainly in the first day there was a struggle 

trying to get good ventilation, and it was a profound struggle, 

even in that first 24 hours." He noted, however, that during 

the first half hour to forty-five minutes, the doctors performed 

immediate resuscitation efforts and the baby seemed to show some 

response: "The baby was moving its extremities and seemed to 

improve in color." During the next few hours, Tommy took a turn 

for the worse and his condition deteriorated from there. Dr. 

Partridge concluded that Tommy had difficulty ventilating within 

the first week of birth and that his brain injury developed 

during that first week. Despite his attending physicians' 

efforts during that time, they could not overcome the basic 

deficiency of his small airways. 

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 The deputy commissioner ruled that the Program had overcome 

the rebuttable presumption set forth in Code § 38.2-5008(A), 

holding that the pre-delivery fetal heart monitoring and 

post-delivery pH reading along with the first CT scan and 

ultrasound together with the opinions of Drs. Seeds and 

Partridge, overcame the rebuttable presumption and proved that 

Tommy's condition resulted from injuries that took place other 

than during labor, delivery and resuscitation. Upon review, the 

full commission reversed the deputy commissioner's decision, 

noting that "[Tommy] was not breathing when he was born, the 

umbilical cord was wrapped around his neck, and he required 

seven minutes of CPR to resuscitate him." The commission 

further noted: 

Dr. Brennan, a neurologist, and Dr. Bryant, 

who treated Tommy shortly after he was born, 

both attributed his problems in part to 

asphyxia. Dr. Brennan specifically referred 

to "initial asphyxia" as contributing to his 

neurological condition. Dr Wells, another 

treating physician, simply described Tommy's 

cerebral palsy as a "birth injury." Dr. 

Partridge's report indicates that he was 

trying to discern the "asphyxia causation." 

The commission held that the program had "failed to provide 

sufficient evidence to rebut the statutory presumption [of Code 

§ 38.2-5008(A)]." 

III. CREDIBLE EVIDENCE NECESSARY TO REBUT THE PRESUMPTION OF 

CODE § 38.2-5008(A)

The Program contends that it produced sufficient evidence 

to overcome the rebuttable presumption set forth in Code 

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§ 38.2-5008(A). Because the presumption of Code § 38.2-5008(A) 

shifts to the Program both the burden of production and the 

burden of persuasion on the issue of causation, whether the 

Program rebutted the presumption is a question to be determined 

by the commission as fact finder after weighing the evidence 

produced by both parties. 

 The determination whether the employer 

has [rebutted the presumption and carried 

its burden of proof] is made by the 

Commission after exercising its role as 

finder of fact. In this role, the 

Commission resolves all conflicts in the 

evidence and determines the weight to be 

accorded the various evidentiary 

submissions. "The award of the Commission 

. . . shall be conclusive and binding as to 

all questions of fact." 

Bass v. City of Richmond Police Dep't, 258 Va. 103, 114, 515 

S.E.2d 557, 562 (1999) (quoting Code § 65.2-706(A)). "On appeal 

from this determination, the reviewing court must assess whether 

there is credible evidence to support the commission's award." 

Id. at 115, 515 S.E.2d at 563 (citations omitted). 

In ruling that the Program had failed to rebut the 

presumption, the full commission found as follows: 

 We are persuaded that the Program has 

not carried its burden. Notwithstanding the 

opinions of Dr. Seeds, writing on behalf of 

the panel, and Dr. Partridge, it is clear 

that Tommy suffered from oxygen deprivation 

during the birth-process -- he was not 

breathing when he was born, the umbilical 

cord was wrapped around his neck, and he 

required seven minutes of CPR to resuscitate 

him. Although his condition improved for a 

few moments after resuscitation, he 

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immediately decompensated in intensive care 

and for several hours the doctors were 

unable to obtain acceptable oxygen levels. 

As to the contribution of this oxygen 

deprivation to his disability, Dr. Brennan, 

a neurologist, and Dr. Bryant, who treated 

Tommy shortly after he was born, both 

attributed his problems in part to asphyxia. 

Dr. Brennan specifically referred to 

"initial asphyxia" as contributing to his 

neurological condition. Dr. Wells, another 

treating physician, simply described Tommy's 

cerebral palsy as a "birth injury." Dr. 

Partridge's report indicates that he was 

trying to discern the "asphyxia causation." 

"Medical evidence is not necessarily conclusive, but is 

subject to the commission's consideration and weighing." 

Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401 

S.E.2d 213, 214 (1991). In its role as fact finder, the 

commission was entitled to weigh the medical evidence. The 

commission did so and accepted the opinions of a treating 

physician, Dr. Bryant, and of Dr. Brennan, a neurologist, while 

rejecting the contrary opinions of Drs. Seeds and Partridge. 

"Questions raised by conflicting medical opinions must be 

decided by the commission." Penley v. Island Creek Coal Co., 8 

Va. App. 310, 318, 381 S.E.2d 231, 236 (1989). 

From this record, we find credible evidence supporting the 

commission's decision. "The fact that there is contrary 

evidence in the record is of no consequence if there is credible 

evidence to support the commission's finding." Wagner Enters., 

Inc. v. Brooks, 12 Va. App. 890, 894, 407 S.E.2d 32, 35 (1991). 

- 13 -
Accordingly, we affirm the judgment of the commission. 

 Affirmed.

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Annunziata, J., dissenting. 

 I respectfully dissent from the majority opinion. Although 

the evidence fully establishes that the infant suffered oxygen 

deprivation and injury, it fails to establish that the injury 

was caused by oxygen deprivation occurring in the course of 

labor, delivery or resuscitation in the immediate post-delivery 

period. Thus, the evidence presented by the Program, all of 

which established that the injury was caused by conditions 

occurring prenatally, remained uncontroverted and was sufficient 

to rebut the statutory presumption arising under Code 

§ 38.2-5008(A)(1). 

 The commission found that the infant "suffered from oxygen 

deprivation during the birth process [because] he was not 

breathing when he was born, the umbilical cord was wrapped 

around his neck, and he required seven minutes of CPR to 

resuscitate him." In addition, the commission noted that 

several physicians attributed the infant's neurological 

disabilities to the asphyxia the infant suffered. However, 

there is no finding that the asphyxia causing the injury 

occurred during labor, delivery or in the immediate 

post-delivery time frame. Nor is there evidence to support such 

a finding. 

While there is little dispute that the infant's problems 

are attributable at least in part to asphyxia at birth, asphyxia 

alone is insufficient to support an award under Code 

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§§ 38.2-5001, -5008, -5009. In addition to the express words 

used in the statute which limit compensation to neonates who 

suffer an "injury to the brain or spinal cord . . . caused by 

the deprivation of oxygen or mechanical injury occurring in the 

course of labor, delivery or resuscitation in the immediate 

post-delivery period," the Virginia legislature specifically 

excluded neonates who suffer "disability . . . caused by genetic 

or congenital abnormality, degenerative neurological disease, or 

maternal substance abuse" from the compensation scheme. Code 

§ 38.2-5001 (emphasis added); see also Code § 38.2-5014. Thus, 

in the absence of evidence showing that the asphyxia occurred in 

the course of "labor, delivery, or resuscitation in the 

immediate post-delivery period," and that it caused the 

resultant injury, no award may be made. 

In proving a compensable injury in this case, the claimant 

relied solely on the statutory presumption which arises under 

Code § 38.2-5008(A)(1). The presumption arises upon proof of 

brain injury caused by oxygen deprivation; proof that the oxygen 

deprivation caused the injury is not necessary to give rise to 

the presumption. Id.

As noted by the majority opinion, whether the Program 

rebutted the presumption is a question to be determined by the 

commission as fact finder after weighing the evidence produced 

by both parties. Although claimant presented evidence of the 

two foregoing elements, she presented no evidence which 

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established that the oxygen deprivation which occurred in the 

course of labor, delivery or resuscitation in the immediate 

post-delivery period caused the infant's injury. 

At best, the claimant's medical evidence cited by the 

commission in support of its conclusion that the Program failed 

to rebut the statutory presumption is limited to a description

of the infant's condition at the time of delivery and in the 

immediate post-delivery period. The evidence clearly showed 

that the infant was oxygen deprived, but nothing more. 

In reaching its decision, the commission specifically 

relied on the records provided by the infant's treating 

physicians, Drs. Brennan, Bryant and Wells. The medical 

documents relate the child's medical history, but contain no 

opinion, either express or implied, with respect to whether 

asphyxia occurring during labor, delivery, or post-delivery in 

the course of resuscitation caused the disabilities described. 

A physician's notation of the child's condition at birth, 

without more, cannot provide the nexus required by statute, 

which calls for evidence relating the neurological disability to 

an event occurring during labor, delivery or resuscitation 

post-delivery. 

 Dr. Brennan, who conducted a neurological exam of the 

infant at approximately four months of age, simply noted the 

infant's medical history at birth, and the fact that the infant 

was "at risk for developmental delay in light of extreme 

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prematurity, low birth weight, initial asphyxia, and severe 

respiratory distress with subsequent bronchopulmonary 

dsyplasia." She does not state expressly or implicitly that the 

developmental delay which ultimately occurred was caused by "the 

deprivation of oxygen . . . occurring in the course of labor, 

delivery or resuscitation in the immediate post-delivery 

period." Indeed, she identified multiple factors which might

cause the developmental delay in question, and the developmental 

delay she references at the time of her note itself remained 

only a possibility. Although after a follow-up neurological 

exam Dr. Brennan states in her medical report that she discussed 

with the infant's parents "the possibility of . . . some 

significant brain injury related to his perinatal problems," the 

use of the term "perinatal" does not indicate that the infant's 

injury was caused at birth. The term "perinatal" refers to "the 

period beginning after the 28th week of pregnancy through 28 

days following birth." Taber's Cyclopedic Medical Dictionary

1282 (Clayton L. Thomas, M.D. ed., 15th ed. 1985). Thus, the 

term "perinatal" refers to a much broader period of time than 

that required by the statute and, in fact, encompasses a period 

of time that is not covered by the statute. Code §§ 38.2-5001, 

-5014 (problems occurring before birth are not compensable under 

the statute). Finally, I note that Dr. Brennan's opinion, 

couched as it is in terms of a "possibility" is not relevant 

evidence of the cause of the infant's injury. "It is well 

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established that '[a] medical opinion based on a "possibility" 

is irrelevant [and] purely speculative.'" Circuit City Stores, 

Inc. v. Scotece, 28 Va. App. 383, 388, 504 S.E.2d 881, 884 

(1998) (quoting Spruill v. Commonwealth, 221 Va. 475, 479, 271 

S.E.2d 419, 421 (1980)). 

Dr. Bryant, who examined the infant upon a hospital 

admission for an apneic episode, also only noted the infant's 

"medical history secondary to a twenty-eight week gestation, 

asphyxia and hypoplastic lungs." He does not state that the 

infant's injury was caused by oxygen deprivation occurring in 

the course of labor, delivery or post-delivery resuscitation. 

Furthermore, neither Dr. Bryant nor Dr. Brennan states that the 

resulting injury was caused by asphyxia resulting from the 

umbilical cord wrapped around the infant's neck, a fact relied 

upon by the commission in its findings, and neither stated that 

the neurological injury was caused by the post-delivery 

resuscitation efforts, an alternative basis for awarding 

compensation under the statute. 

 The only evidence in the case which arguably links the 

asphyxia and resulting injury to the period from labor to the 

immediate post-delivery time frame is that of Dr. Wells, a 

treating physician who, eight years after the infant's birth, 

described the child's disability as "Cerebral Palsy (birth 

injury)." However, nothing in the record supports a conclusion 

that Dr. Wells used the term "birth injury" as a surrogate for 

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an opinion that the injury in question was caused by oxygen 

deprivation occurring in the course of labor, delivery or during 

immediate post-delivery resuscitation period. 

In short, I find no evidence in the record which supports 

the commission's findings of fact that the injury suffered by 

the infant was caused by "oxygen deprivation occurring in the 

course of labor, delivery or resuscitation in the immediate 

post-delivery period," as required by Code §§ 38.2-5001, -5008, 

-5009. The only evidence relating to an explanation of the 

issue of how the injury occurred was presented by the Program. 

Its evidence showed that the injuries in question occurred in 

utero before labor commenced.4 The commission's conclusion that 

the Program failed to carry its burden of proof and persuasion 

to rebut the statutory presumption is thus not sustained by the 

record. For these reasons, I would reverse the commission's 

decision. Morris v. Badger Powhatan/Figgie International, Inc., 

 4

 The medical evidence presented by the Program supporting 

that conclusion included the presence of oligohydramnios in the 

mother which is defined as a condition in which there is less 

than the normal amount of amniotic fluid around the fetus and 

which may result, inter alia, in underdevelopment of the 

infant's lungs. Dorland's Illustrated Medical Dictionary 1174 

(28th ed. 1994); 4 Attorneys' Dictionary of Medicine and Word 

Finder O-40 (J.E. Schmidt, M.D. ed., 1999). The Program's 

evidence also established that the mother suffered a complete 

placenta previa, and chorioamnionitis, which is an inflammation 

of the membranes which cover the fetus, Taber's at 324, and that 

the child was premature. The absence of intraventricular 

hemorrhage at birth also indicated that no asphyxic injury 

occurred during labor, delivery, or in the immediate 

post-delivery period. 

- 20 -
3 Va. App. 276, 279, 348 S.E.2d 876, 877 (1986) ("[T]he 

Commission's findings of fact are not binding upon us when there 

is no credible evidence to support them."). 

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