COURT OF APPEALS OF VIRGINIA
Present: Judges Hump hreys, Felton and Kelsey Argued at Salem, Virginia

CENTRAL VIRGINIA OBSTETRICS & GYNECOLOGY ASSOCI ATES, P.C., AND KWASI A. DEBRA, M.D. v. Record No. 0399-03-2 LAWANDA P. WHITFIELD, Administratrix of OPINION BY the ESTATE OF DEJUAN L. WHITFIELD-SMITH JUDGE D. ARTHUR KELSEY JANUARY 13, 2004 CHIPPENHAM & J OHNSTON-WILLIS HOSPITAL, INC. v. Record No. 0400-03-2
VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMP ENSATION PROGRAM

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Kathleen M. McCauley; Linda B. Georgiadis; (Michael L. Goodman; Anthony Tacconi; Matthew D. Joss; Goodman, Allen & Filetti, PLLC; LeClair Ryan, on briefs), for appellants. William C. Carr, Jr . (Emroch & Kilduff, L.L.P. , on brief), for appellee Lawanda P. Whitfield, Administratrix of the Estate of Dejuan L. Whitfield-Smith, Deceased. Scott John Fitzgerald, Assistant Atto rney General (Jerry W. Kilgore, Attorney General; Judith Williams Jagdmann, Deputy Attorney General; Edward M. Macon, Senior Assistant Attorney General, on brief), for appellee Virginia Birth-Related Neurological Injury Compensation Program.
Dejuan Whitfield-Smith di ed within a couple of hours afte r his birth. Hi s estate filed a malpractice action in Ri chmond Circuit Court against Chippe nham & Johnston-Willis Hospital, Inc., Central Virginia Obstetrics & Gynecology Associates, P.C., and Kwasi A. Debra, M.D. In defense of this claim, the defendants asserted statutor y tort immunity under the Vi rginia- 2 - Birth-Related Neurological Injury Compensation Act, Code §§ 38.2-5000 to 38.2-5021. As the Act requires, the circuit court referred the questi on to the Virginia Workers’ Compensation Commission. After hearin g conflicting medical eviden ce, the commission held that the Act did not apply to Dejuan’s injury and thus did not afford statutory immunity to the tort defendants. The defendants, appellants in this consolidated app eal, seek our review of the commission’s decision. They contend that the co mmission misapplied the burden of pr oof and made insupportable factual findings. Disagreeing with both contentions, we affirm.

I. On appeal, we view the evidence in the light most favorable to the prevailing party before the commission. Clinchfield Coal Co. v. Reed, 40 Va. App. 69, 72, 577 S.E.2d 538, 539 (2003); Tomes v. James City (County Of) Fire, 39 Va. App. 424, 429, 573 S.E.2d 312, 315 (2002). Lawanda Whitfield gave birth to an infant son, Dejuan Whitfield-Smith, at Chippenham Medical Center on December 30, 1998. Dr. Kwasi Debra, an obst etrician, used fo rceps extraction during the delivery. When Dejuan emerged from the birth ca nal, his nuchal cord was wrapped tightly around his neck. After being cut free, Dejuan rema ined in severe respiratory di stress. His Apgar scores were 1 at one minute, 0 at five minutes, and 0 at ten minutes. 1 Dr. Debra pronounced Dejuan dead in the delivery room and handed him over to his mother. Dejuan’s mo ther noticed, however, that he appeared to be gasping for breath. A nurse also noted that Dejuan was moving his arms and legs.

1 The Apgar rating scale ranges from 1 to 10. It provides a numerical expression of a newborn’s condition that assesses heart rate, respiratory effort, mu scle tone, reflex, irritability, and color. See generallyGaalaas v. Morrison , 233 Va. 148, 150 n.2, 353 S.E.2d 898, 899 n.2 (1987); Rutherford v. Zearfoss, 221 Va. 685, 687, 272 S.E.2d 225, 226 (1980).- 3 - She took the child’s pulse and discovered he had a heart rate in the 150s. An intensive care team took Dejuan to the Neonatal Inte nsive Care Unit. Deju an’s condition quickly deteriorated. He was, again, pronounced dead about two hours later. Dr. Fabio Gutierrez performed an autopsy and concluded that the cause of Dejuan’s death was cardiopulmonary a rrest secondary to birth asphyxia as a result of being choked by his umbilical cord during labor and delivery. Dejuan’s mother, as administratrix of her son’s estate, filed a wrongful death action in circuit court against Dr . Debra, her medical pr actice, and the hospital. Asserting that Dejuan’s injury fell within the scope of the Virginia Birth-Related Neurological Injury Compensation Act, the defendants sought the statutory to rt immunity afforded under the Act. Pursuant to Code § 8.01-273.1 , the trial court referred the question to the commission. Before the commission, the pa rties submitted conf licting medical eviden ce on the newborn’s precise condition prior to his d eath. This evidence, the defenda nts argued, triggered a statutory presumption that the Act governe d Dejuan’s injury. The commission disagreed, finding the evidence insufficient to invoke the presumption. Dr. Debra, her medical practice, and the ho spital appeal the co mmission’s ruling to us claiming (a) the commission failed to properly ap ply the Act’s statutory presumption and thereby misallocated the burden of proof, and (b) had the presumption been applied properly, it would have established the Act’s cove rage. After reviewing the history and purposes of the Act, we will address each of the appellants ’ arguments in turn. In our judgment, neither has merit.
II. One of only two such statutes in the nati on, the Virginia Birth- Related Neurological Compensation Act provides claimants with a no-fault remedy for compensation for qualified- 4 - injuries. See Code § 38.2-5009. 2 The Act also affords potential tort defendants (at least those who contribute voluntary assessments to th e fund under Code § 38.2-5015), with an absolute immunity to civil malpractice liability for these in juries. See Code § 38.2-5002(B). “The Act generally provides the sole remedy for infants who have incurred a birt h-related neurological injury caused by a ‘participating physician’ or a ‘participating ho spital,’ and bars infants who have sustained injuries of this nature from ma intaining a common law tort action against such a ‘participating physician’ or ‘participating hos pital.’” Berner v. Mills, 265 Va. 408, 411, 579 S.E.2d 159, 160 (2003). This finely engineered quid pro quo , however, does not uniformly favor claimants or potential tort defendants. In cases where malpractice litigati on appears ill advised, a claimant may seek the application of the Act to his claim to obtain benefits from the statutory compensation fund. See Code §§ 38.2-5009, 38.2-5015(A) . But in cases where litigation may be more promising, a claimant may seek to defeat the application of the Act to his claim. Each of our cases discussing the Act involves instance s where claimants sought the application of the Act to their claims and were willing to stipulate the resulting tort immunity afforded to potential malpractice defendants. 3 The case before us now, however, involves one of the second type: a situation where the tort defendant s in a pending malpractice lawsu it seek the application of the Act to the claim over the objection of the claimant.

2 See generallyThe Definition of Compensable Injury and the Funding Mechanism of the Virginia Birth-Related Neurological Injury Co mpensation Act, House Doc. No. 63 (1990); see also Study to Increase the Scope and Magnitude of the Virginia Birth-Related Neurological Injury Compensation Program, House Doc. No. 58 (1998).

3 Wolfe v. Va. Birth-Related Neuro. In jury Comp. Pgm., 40 Va. App. 565, 580, 580 S.E.2d 467, 474 (2003); Kidder v. Va. Birth-Relate d Neuro. Injury Comp. Pgm., 37 Va. App. 764, 778, 560 S.E.2d 907, 913 (2002); Coffey v. Va. Birth-Related Neuro. Injury Comp. Pgm., 37 Va. App. 390, 401-02, 558 S.E.2d 563, 569 (2002); Va . Birth-Related Neuro. Injury Comp. Pgm. v. Young, 34 Va. App. 306, 318, 541 S.E.2d 298, 304 (2001).- 5 - For the Act to apply, the infant must have suffered a “birth-related neurological injury.” See Coffey v. Va. Birth-Relate d Neuro. Injury Comp. Pgm. , 37 Va. App. 390, 399-400, 558 S.E.2d 563, 568 (2002). Under Code § 38.2-5001, four thi ngs must be true for an injury to fit this definition: (1) The infant sustained “an injury to the brain or spinal cord” that was “caused by deprivation of oxygen or mechanical injury.” (2) The injury occurred “in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital.” (3) The injury rendered the infant “permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled.” (4) Such disability caused “the infant to be permanently in need of assistance in all activ ities of daily living.” 4

4 The full text of the statutory definition in Code § 38.2-5001 states: “Birth-related neurological injury” means injury to the brain or spinal cord of an infant caus ed by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation necess itated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital which renders the infant permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be c ognitively evaluated, cognitively disabled. In order to const itute 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. This de finition shall apply to live births only and shall not include disabil ity or death caused by genetic or congenital abnormality, degenerative neurological disease, or maternal substance abuse. The de finition provided here shall apply retroactively to any child born on and af ter January 1, 1988, who suffers from an injury to the br ain or spinal cord caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitat ion in the immediate postdelivery period in a hospital.- 6 - If the party seeking the Act’s application proves th at the injury falls within this definition, the Act applies. The result is th e potential availability of comp ensation to the claimants under Code § 38.2-5009 and the certain availabili ty of tort immunity for any potential tort defendants under Code § 38.2-5002(B). Under the Act, a rebuttable presumption of a bi rth-related neurological injury exists when the proponent of the Act’s coverage proves el ements one and three of the § 38.2-5001 definition. See Code § 38.2-5008(A)(1)(a). When these two pr edicate facts are proved, the factfinder may presume that elements two and four of the statutory definition are also met. 5 Once the presumption applies, the burden of proof shifts to the party oppos ing the presumption to disprove elements two and four, and thereby establish “that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.” Wolfe v. Va. Birth-Related Neuro.

5 Code § 38.2-5008(A)(1)(a) provides: The Commission shall determine, on the basis of the evidence presented to it, the following issues: 1. Whether the injury claimed is a birth-related neurological injury as defined in § 38.2-5001.

a. 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 br ain 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 bur den of proving that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.- 7 - Injury Comp. Pgm., 40 Va. App. 565, 578, 580 S.E.2d 467, 474 (2003) (quoting Code § 38.2-5008(A)(1)(a)). 6
A. In this case, the parties agree that Dejuan su ffered “an injury to the brain or spinal cord” caused by the “deprivation of oxygen or mechanic al injury” — element one of the statutory definition and the first predicate fact necessary for the presumption. They also agree that Dejuan’s injury occurred “in the course of labor, delivery or resu scitation necessitated by a deprivation of oxygen or mechanical injury that occu rred in the course of labor or delivery, in a hospital” — element two of the definition and a fact that may be inferred if the presumption applies. The parties dispute whether Dejuan’s injury caused him to be “permanently in need of assistance in all activ ities of daily living,” but ad mit that this fact may be inferred if the statutory presumption applies. The dispositive issue thus centers on whether appellants established that Dejuan, prior to his death, was permanently “motorically disa bled” and “developmentally” or “cognitively” disabled — the second predicate fact necessa ry for the § 38.2-5008(A)(1)(a) presumption to apply. To resolve this dispute, we must first address appellants’ argument that a predicate fact can be established merely by “the submission of any credible evidence.” Under this view, the presentation of any plausible evidence (regardless of whether it is in fact believed) triggers the presumption and shifts the burden of persuasion to th e other side to rebut it . After all, appellants

6 Because of the “difficulty in proving when such an injury was sustained” and the equally difficult task of proving, prospectively, th at the infant will perm anently need assistance in all activities of daily living, “the legislature enacted a presum ption to assist potential claimants in obtaining benefits.” Coffey, 37 Va. A pp. at 400, 558 S.E.2d at 568. Despite Coffey’s contextualization of the issue, however, the presumption also app lies in cases where the claimant is not seeking assistance in obtai ning statutory benefits, but rath er is seeking to defeat the application of the Act and its resulting tort immunity. In such circumstances, the medical providers who seek the Act’s a pplication to the claimant’s in jury bear the burden of proof.- 8 - correctly point out, we have de scribed the burden as merely “a prima facie ” showing, Coffey, 37 Va. App. at 401, 558 S.E.2d at 569, which literall y means “at first sight” or “on first appearance,” Black’s Law Dictionary 1209 (7th e d. 1999). That descripti on, as a general rule, does not connote anything more than a mere evidentiary sufficiency. See, e.g. , Virginia v. Black ,

538 U.S. __, 123 S. Ct. 1536, 1554 (2003) (Scalia, J., concurring in part) (“‘ Prima facie evidence of a fact is such evidence as, injudgment of law, is sufficient to establish the fact; and, if not rebutted, remains sufficient for the purpose.’” (q uoting 7B Michie’s Jurisprudence of Virginia and West Virginia § 32 (1998)). “ Prima facie evidence is evidence whic h on its first appearance is sufficient to raise a presumption of fact or establish the fact in question unless rebutted.” Commonwealth v. Dalton, 11 Va. App. 620, 623, 400 S.E.2d 801, 803 (1991) (quoting Babbitt v. Miller, 192 Va. 372, 379-80, 64 S.E.2d 718, 722 (1951)). 7 Even so, the expression “ prima facie showing,” Coffey, 37 Va. App. at 401, 558 S.E.2d at 569, need not necessarily be understood to de scribe a mere hypothetical sufficiency of the evidence. Though uncommon, this expression has been used alongside an actual preponderance standard for purposes of trigge ring a presumption. In Title VII cases, for example, the United States Supreme Court describes the role of a “ prima facie case” in just this way: The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a preponderance of the evidence that she applied for an available position for which she was qualif ied, but was rejected [all

7 When a trial judge in a civil jury case, for example, entertains a motion to strike alleging that the plaintiff has not made out a prima facie case, the judge doe s not ask whether he

personally believes that the evid ence rises to a pre ponderance — rather, he asks whether the conclusion the plaintiff draws from the evidence would so “defy logic and common sense” that no rational factfinder could adopt it. Upper O ccoquan Sewage Auth. v. Blake Constr., 266 Va. 582, 590 n.6, 587 S.E.2d 721, 725 n.6 (2003); see generallyW. Hamilton Bryson, Virginia Civil Procedure 447 (3d ed. 1997).- 9 - predicate facts] under the circum stances which give rise to an inference of unlawful discrimination [the presumed fact]. Texas Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981) (emphasis added); see also McDonnell Douglas Corp v. Green, 411 U.S. 792, 802 ( 1973) (holding that clai mant triggers the presumption by carrying “the initial burd en under the statute of establishing a prima facie case of racial discrimination”); cf. Wolfe , 40 Va. App. at 580, 580 S.E.2d at 474 (accepting, without discussion, that a “preponderance of the eviden ce” standard applies to the § 38.2-5008(A)(1) presumption). This description of a prima facie case requires the fact finder to subjectively believe the evidence preponderates in the clai mant’s favor, not merely to conclude that an objective, rational factfinder could so find. The subtle distinction between these two competing views of a prima facie case, while seeming semantic, understates its potentially outco me-determinative impact. This is particularly true in cases where, as here, the dispute involves not so much a contest between two contradictory sets of facts, butrather a scramble over how to interpret the paucity of facts favoring either side. In such cases, the party with the ultimate burden of proof must demonstrate not only that his view of the ev idence should be adopted with conf idence, but also that any view of such sketchy evidence c ould be confidently adopted. We do not answer appellants’ argument, however, by weighing the competing policy considerations underlying the assi gnment of the shifting burdens of proof to determine which would best fit this case. Our task is considerab ly more simple. “We begin, as always, with the language of the statute.” Duncan v. Walker, 533 U.S. 167, 172 (2001). And we strive to give that language a “literal construction” unless doing so “would involve a manifest absurdity.” Chase v. DaimlerChrysler Corp., 266 Va. 544, 547, 587 S.E.2d 521, 522 (2003) (citations omitted); see also Mouberry v. Commonwealth , 39 Va. App. 576, 583, 575 S.E.2d 567, 570 (2003) (recognizing that statut ory words should be given “their common, ordinary and accepted- 10 - meaning”). This textualist approach presumes that the legislature “‘chose, with care,’ the specific words of the statute.” Kane v. Szymczak, 41 Va. App. 365, 371, 585 S.E.2d 349, 352-53 (2003) (citations omitted). In this case, the Virginia Birth-Related Neur ological Injury Compen sation Act states that the presumption arises when the predicat e facts have been “demonstrated, to the satisfaction of the Virginia Workers’ Compensation Commi ssion.” Code § 38.2-5008(A)(1)(a) (emphasis added). To demonstrate a fact to the satisfaction of the factfinder means to persuade the actual factfinder, not merely to demonstrate the plausibi lity of the proffered fact to a sufficient degree that any rational factfinder could be persuaded . Relying on this statutory text, we reject appellants’ argument that “the submission of any credible evidence” triggers the presumption. Instead, we hold that the party asserting the presumption must demonstrate by a preponderance of the evidence that the predicat e facts are true. Only then doe s the presumption arise and the burden of proof shift to the party opposing the presumption.
B. We next address appellants’ as sertion that the commission e rred in holding that they did not prove by a preponderance that Dejuan wa s permanently “motorically disabled” and “developmentally” or “cognitively” disabled, the se cond predicate fact nece ssary to give rise to the § 38.2-5008(A)(1)(a) presumption. For the following reasons, we conclude that the commission acted within the scope of its decisionmaking discretion as factfinder. Appellants produced the expert opinions of Dr. Edward Karotkin and Dr. Warren Broocker. In a letter opinion, Dr. Karotkin conc luded that “[e]ven if the child had responded to the resuscitative efforts, due to the profound oxygen deprivation to his brain, he would have been rendered permanently motorically disabled, deve lopmentally disabled, a nd cognitively disabled.” Testifying before the deputy commissioner, Dr. Broocker stated that “usually when the asphyxia- 11 - is severe enough to cause Apgar sc ores” as low as Dejuan’s, “the long-term neurol ogic condition of the baby will be affected. To what degree itwill be affected varies from individual to individual, but it will be affected.” Dr. Br oocker admitted some doubt, however, as to the accuracy of Apgar scores in pred icting future neurological deficits. These scores have been used “pretty glibly over the years as medical fact ,” Dr. Broocker observe d, and “there are some problems with the Apgar scores actually reallypredicting as far as how well the baby will do neurologically later on.” He al so noted that “everybody’s got an anecdotal case of an extremely poor Apgar score and the baby did well subsequently . . . .” Dejuan’s estate filed the repor t of Dr. David Axelrod who stat ed that, given the paucity of medical evidence available to make such a judgm ent, he did not “belie ve that anyone” could make the determination whether Dejuan “would ha ve been permanently motorically disabled and developmentally disabled had he survived.” Based upon his review of the child’s autopsy, “which showed no pathological damage to the brain such as bleeding, or signs of necrosis,” there was “no evidence that this baby would have been permanently motorically disabled and developmentally disabled if he had survived.” The commission, pursuant to Code § 38.2-5008(C ), solicited a report from a panel of three impartial physicians. In a letter dated November 29, 2001, Dr. William N.P. Herbert, Dr. James E. Ferguson, II, and Dr. Barbara Head stat ed: “Given the fact th at this infant expired approximately 2 1/2 hours following delivery, we are unable to determine that the infant was developmentally or cognitively disabled, nor can we state that the infant would be permanently in need of assistance in all activities of daily living.” As a result, theyconcluded, “the evidence in this case does not meet the criteria” for a birth-related neurological injury under the Act. Faced with this evidence, the commission found that appellants failed to prove Dejuan was permanently motorically disabled and de velopmentally or cognitively disabled. The- 12 - commission rejected Dr. Karotkin’s opinion be cause there was “no ev idence to quantify the amount of oxygen deprivation suffered by the infa nt . . . , no damage to the brain, such as intracranial bleeding or any othe r pathology” in the autopsy re port and “no blood from the cord was obtained for testing.” Equally unconvincing to the commission was Dr. Broocker’s opinion, which “offered no opinion as to whether the infantwould have been developmentally disabled.” Finding more persuasive the opinions of Dr. Ax lerod and the three independent panel physicians, the commission held that appellants failed to prove that Dejuan was permanently “motorically disabled” and “developmentally” or “cognitively” disabled. Appellants, therefore, failed to trigger the presumption and thereby shift the ultimate burden of proof. We are in no position to disagree. Of the six physicians that reviewed the file, four stated that they could not “determine that the infant was developmentally or cognitively disabled” at the time of his death. Three of th ese four physicians were indepe ndent experts appointed by the commission. Only one physician stated unequivocal ly that Dejuan was permanently motorically disabled and developmentally or cognitively disabled — and the commission found this opinion unpersuasive given the lack of a ny reliable diagnostic evidence. “Questions raised by conflicting medical op inions must be decided by the commission.” Wolfe, 40 Va. App. at 580, 580 S.E.2d at 474; Kidde r v. Va. Birth-Related Neuro. Injury Comp. Pgm., 37 Va. App. 764, 778, 560 S.E.2d 907, 913 ( 2002); Va. Birth-Related Neuro. Injury Comp. Pgm. v. Young, 34 Va. App. 306, 318, 541 S.E.2d 298, 304 (2001). This appellate deference is not a mere legal custom, subject to a flexible application, but a statutory command making clear that the commission’s decision “shall be conclusive and bind ing as to all questions of fact.” Code § 38.2-5011(A). Medical evid ence, therefore, remains “subject to the commission’s consideration and weighing.” Wolfe, 40 Va. App. at 580, 580 S.E.2d at 474 (quoting Young, 34 Va. App. at 318, 541 S.E.2d at 304 ) (citations and inte rnal quotation marks- 13 - omitted). And the appearance of “contrary evidence in the record is of no consequence if there is credible evidence to support the commission’s finding.” Id.; see also Kidder , 37 Va. App. at 778, 560 S.E.2d at 913. Despite this deference, appellants argue, the commission’s findings cannot be sustained because Dejuan’s death, by itself, overcomes any evidentiary weaknesses intheir case. Under this theory, “the death of an infant from a bi rth-related oxygen deprivat ion injury automatically qualifies the infant under the Act.” We find this view flawed for two reasons. First, it is a non sequitur to assert that a disability — as that term is specifically defined and qualified in the statute — always precedes death or is subsumed by it. While an injury may be an anatomical antecedent to death, the same ca nnot be said of a statutory disability. It may or may not, depending on the facts. A per se rule equating death with disability mixes unrelated concepts because, as the commission correctly put it, “Death is the cessation of life, not a measure of disability.” Second, the Act is a comprehe nsive legislative en actment. It includes multiple provisions defining its terms, describing its scope, and qual ifying its reach. Despite this elaborate statutory scheme, not a word expressly says (or, for that matter, reasonab ly implies) that death should automatically be equated with the highly specific definitional criteria used to de termine the Act’s coverage. The omission of any statutory language treating death as a per se event covered by the Act, even if problematic as a policy matter, cannot be remedied by the courts. 8 “The act of choosing carefully some words nece ssarily implies others ar e omitted with equal care .” Kane, 41 Va. App. at 372, 585 S.E.2d at 353. “Any such change to the stat ute must be a legislative, rather than a judicial, undertaking.” Mouberry, 39 Va. Ap p. at 584-85, 575 S.E.2d at 571. To advocate a statutory- 14 - 8 The 2003 session of the General Assembly adde d a new section to the statute addressing infant deaths within 180 days of birt h. See Code § 38.2-5009.1 (2003 Va. Acts, ch. 897). Because the new provision applies prospectively only, we do not consider it.- 15 - interpretation that, if accep ted, would essentially rewrite the legi slative text “presupposes a power in the judiciary that simply does not exist.” Id. We thus reject appellants’ invitation to judicially graft into the statute an unwritten provision applying th e Act to all newborns wh o die shortly after birth. 9
III. Because the commission applied correctly the legal principles governing the presumption and rested its factfinding on cr edible evidence, we affirm. Affirmed.

9 The Commission also recognized this limitation on its powers. Its opinion in this case concludes: “There is no presumption of disability in those cases where the infant dies shortly after birth. Even though there may be a valid ar gument for the creation of such a presumption, the Commission should not judicially cha nge the clear language of the statute.”