COURT OF APPEALS OF VIRGINIA
Present: Judges Humphrey s, Felton and McClanahan Argued at Salem, Virginia

VIRGINIA BIRTH-RELA TED NEUROLOGICAL INJURY COMPEN SATION PROGRAM MEMORANDUM OPINION * BY v. Record No. 1218-05-3 J UDGE ROBERT J. HUMPHREYS MARCH 7, 2006 ALLEN McGRADY AND TARA McGRADY, PARENTS OF THE INFANT COMPLAINANT, MASON A. McGRADY

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION Jill M. Ryan, Assistant Atto rney General (Judith Williams Jagdmann, Attorney General; Franci s S. Ferguson, Deputy Attorney General; Angela Boic e Axselle, Assistant Attorney General, on brief), for appellant. T. Daniel Frith, III (Frith La w Firm, on brief), for appellees.
Appellant Virginia Birth-Related Neurol ogical Injury Compensation Program (the “Program”) appeals a decision from the Vi rginia Workers’ Compensation Commission (“commission”) determining that Mason Allen McGr ady (the “infant”), son of appellees Allen McGrady and Tara McGrady (collectively, “parents” or “appellees”), has a “birth-related neurological injury” within th e meaning of the Virginia Birt h-Related Neurological Injury Compensation Act (the “Act”), Code § 38.2-5001 et seq. The Program argues that the commission erred in determining that the infa nt is “permanently, motorically disabled,” “developmentally disabled,” and “will permanently require assistance in all activities of daily living.” For the reasons that follow, we disagree and affirm the judgment below.

* Pursuant to Code § 17.1-413, this opinion is not designated for publ ication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.- 2 - I. MOTION TO DISMISS Initially, we must resolve the merits of a ppellees’ motion to dismi ss, which argues that the appeal should be dismissed for failure to comp ly with three applicable procedural rules. Specifically, appellees argue that they did not receive a copy of the Program’s brief within the time period prescribed by Rule 5A:19(f), nor did the certification at th e end of the Program’s brief comply with the requirements of Rule 5A :20(h). Appellees further contend that the Program, in its “Question Presented,” did not cite to the specific page of the transcript, appendix, or record where the issues on appeal were pres erved, thereby violating Rule 5A:20(c). For the reasons that follow, we disagree and deny the appellees’ motion to dismiss. A. Rule 5A:19(f) Rule 5A:19(f) provides, in per tinent part, that “one copy” of an appellant’s brief “shall be mailed or delivered to opposing counsel on or befo re the date of filing” with this Court. Appellees contend that the Program failed to comply with this rule because they did not receive a copy of the Program’s opening brief until eleven da ys after the Program’s brief was filed with this Court. We disagree. The Program filed its opening brief with this Court on July 22, 2005. It is undisputed that the Program mailed appellees a copy of the brief on the same day. However, the address on the envelope was incorrect, and the brief was return ed to the Attorney General on Friday, July 29, 2005. The brief was then remailed to the correc t address via overnight mail on Monday, August 1st. Appellees received the brief on August 2, 2005, eleven days after the opening brief was filed in this Court. Based on these facts, it is clear the Program complied with Rule 5A:19(f). Specifically, the Program mailed “one copy” of its opening br ief to appellees on the same date that the opening brief was filed in this C ourt. Although appellees’ actual re ceipt of the brief was delayed- 3 - because of an improper address, Rule 5A:19(f) does not require timely receipt of the brief by opposing counsel as a prerequisite for compliance with the rule. Rather , compliance with the rule is established as long as the brief is actua lly mailed “on or before the date of filing.” Appellees also contend that th e late arrival of the opening brief deprived them of an adequate opportunity to prepare an appropriate response. We note, however, that, according to Rule 5A:19(e), “[b]y agreement of all counsel an d with permission of a judge of the Court of Appeals, the time for filing any brief in the Cour t of Appeals may be altered.” Had appellees believed they did not have enough time to prepar e a brief in response to the Program’s opening brief, they could have requested additional tim e under the provisions of Rule 5A:19(e). By failing to do so, appellees cannot now complain that they lacked an adequate opportunity to prepare their brief in response. Thus, we conclude that, under the circumstances of this case, the Program complied with the provisions of Rule 5A:19(f). B. Rule 5A:20(h) Rule 5A:20(h) provides, in pe rtinent part, that an appellan t’s opening brief must contain “[a] certificate (which need not be signed in handwriting)” indicating “that Rule 5A:19(f) has been complied with.” Appellees argue that th e certification appended to the Program’s opening brief fails to meet the requirements of this ru le, reasoning that the cer tification was improperly dated. We disagree. The certification appended to the Program’s opening brief states as follows: I hereby certify that I have complied with Rule 5A:19(e) 1 and a true and correct copy of the foregoing BRIEF OF APPELLANT was send by first class mail and facsimile on June 28, 2005 to [counsel for appellees].

1 The current Rule 5A:19(f) was formerly de signated as Rule 5A:19(e). The amendments that altered the numbering of Rule 5A:19 we re not made effective until August 15, 2005— several weeks after the Program filed its opening brief.- 4 - As discussed above, the Program’s opening brief was filed on July 22, 2005, rather than June 28, 2005. However, although the certif ication unquestionably contains a typographical error, such an error does not invalid ate the certification required by Rule 5A:20(h). Compliance with the rule is established by the mere fact of the certif ication. Thus, absent proof that the misrepresentation was knowingly made with the in tent to mislead this Court, an inaccuracy in the certification does not constitute a violation of Rule 5A: 20(h). Accordingly, we hold that the certification appended to the Pr ogram’s opening brief complies with the requirements of Rule 5A:20(h). C. Rule 5A:20(c) Finally, appellees contend that the Program viol ated Rule 5A:20(c) because it did not cite to the transcript, appendix, or r ecord within the “Questions Pres ented” section of the Program’s opening brief. The Program disagrees, reasoning th at, because the required references appear in the “Statement of the Case,” its brief sufficiently complies with Rule 5A:20(c). For the reasons that follow, we agree with the Program. Rule 5A:20(c) provides that an appellant’s ope ning brief must contain “[a] statement of the questions presented with a cl ear and exact reference to the pa ge(s) of the transcript, written statement, record, or appendix where each questi on was preserved in the trial court.” Because this Court “will not search the record for errors in order to interpret the appellant’s contention and correct deficiencies in a brief,” Buchanan v. Buchanan , 14 Va. App. 53, 56, 415 S.E.2d 237, 239 (1992), we will not consider a “Question Presented” that is unsupported by the references required by Rule 5A:20(c). See, e.g. , Barrs v. Barrs , 45 Va. App. 500, 512, 612 S.E.2d 227, 232-33 (2005); Courembis v. Courembis , 43 Va. App. 18, 26, 595 S.E.2d 505, 509 (2004). The text of Rule 5A:20(c) requires “[ a] statement of the questions presented with a clear and exact reference to the page(s) . . . where eachquestion was preserved in the trial court.”- 5 - (Emphasis added). The plain language of this rule, however, does not require that those references be contained within the “Questi ons Presented” themselves. In Mullin v. Mullin , 45 Va. App. 289, 610 S.E.2d 331 (2005), for example, the appellee contended that appellant’s failure “to cite any record citations as to where he preserved any of his f our questions presented,” as required by Rule 5A:20(c), barred this C ourt’s consideration of the appeal. Id. at 300 n.4, 610 S.E.2d at 336 n.4. However, we noted that, on page 3 of his opening brief, appellant did cite to various pages in the appendix, but identified the references “by pa ge and line number . . . rather than by using the abbreviation ‘JA____.’” Id. This Court found appe llant’s citation to the appendix sufficient to pass muster under Rule 5A:20(c). Id. Similarly, although the Program did not cite to the appendix or the record in the “Questions Presented” section of its brief, it did provide the requi red citations in its “Statement of the Case.” Although it did so inartfully, because the Program provided the required citations in the text of its opening brief, we hold thatthe Program sufficiently complied with the requirements of Rule 5A:20(c). See id. ; see also Taylor v. Commonwealth , 28 Va. App. 498, 504, 507 S.E.2d 89, 91 (1998) (“The provisions of Rule 5A:20 are not jurisdictional.”). For these reasons, we hold that the Program substantially complied with all applicable provisions of Rules 5A:19(f), 5A:20(c), and 5A:2 0(h). Accordingly, we deny appellees’ motion to dismiss the appeal.
II. MERITS OF THE APPEAL On appeal, the Program raises two separate , but related issues. First, the Program contends the commission erred in finding the infant to be both “permanently, motorically disabled” and “developmentally disabled.” 2 Second, the Program cont ends that the commission

2 The Program’s original “Questions Presente d” divided this issue into two separate questions presented. However, in the discus sion section of its openi ng brief, the Program collapses its separate “Questions Presented” into a single issue, focusing on whether the evidence- 6 - erred in determining that the infant “will permanen tly require assistance in all activities of daily living.” Because credible evidence in the recordsupports each of these findings, we affirm the judgment below. On appeal from a decision aw arding or denying benefits under the Virginia Birth-Related Neurological Injury Compensation Act, “we view th e evidence in the light most favorable to the prevailing party before the commission.” Cent . Va. Obstetrics & Gynecology Assocs., P.C. v. Whitfield , 42 Va. App. 264, 269, 590 S.E.2d 631, 636 (2004). Also, on appeal, we defer to the commission’s findings of fact even “‘if the weight of the evidence is contra ry to those findings.’” Georgia-Pacific Corp. v. Robinson , 32 Va. App. 1, 5, 526 S.E.2d 267, 268 (2000) (quoting Kane Plumbing v. Small , 7 Va. App. 132, 136, 371 S.E.2d 828, 831 (1988)); see also Code § 38.2-5011(A). Thus, the appearance of “contrary ev idence in the record is of no consequence if there is credible evidence to support the commission’s findi ng.” Wolfe v. Va. Birth-Related Neurological Injury Comp. Program , 40 Va. App. 565, 580, 580 S.E.2d 467, 474 (2003). We further note that “[q]uestions ra ised by conflicting medical opi nions must be decided by the commission.” Id. Accordingly, because determinations relating to the credibility of evidence are within the sole province of the commission, the commission’s decision to assign controlling weight to a particular medical opinion will not be disturbed on appeal. See id. The Virginia Birth-Related Ne urological Injury Compensation Act was established to provide compensation to those families whose newborn children suffer “birth-related neurological injuries.” See Code §§ 38.2-5000 through 38.2-5021. Under the Act, an infant who incurs a birth-rela ted neurological injury caused by the negligence of a participati ng physician cannot maintain a common law tort action against th e participating physician other than as provided by the Act, or when there is clear and convincing

was sufficient to demonstrate that the infant was developmentally or cognitively disabled. Accordingly, we will do the same.- 7 - evidence that the participating phys ician willfully or intentionally caused such injury. King v. Va. Birth-Related Neur ological Injury Comp. Program , 242 Va. 404, 406-07, 410 S.E.2d 656, 658 (1991). Rather, an infant who incurs a birt h-related neurological injury should instead “file a claim against a partic ipating physician with the [Workers’ Compensation] Commission, which has jurisdiction to decide all clai ms made pursuant to the Act.” Id. at 407, 410 S.E.2d at 658. The commission, then, “is authorized to dete rmine whether the injury is a birth-related neurological injury, whether the obstetrical services were deli vered by a participating physician at birth, and how much compensation, if any, is awardable pursuant to the Act.” Id. at 407, 410 S.E.2d at 657-58. 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 cause d 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 perm anently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evalua ted, cognitively disabled. (Emphasis added). Thus, to qualify as a “birth-rel ated neurological injury ,” the infant must be both (1) “permanently motorically disabled,” and (2) either “developmentally disabled” or “cognitively disabled.” Id. Moreover the injury must be of a sort that “shall cause the infant to be permanently in need of assistance in all activities of daily living.” Id. The Act further provides, however, that A rebuttable presumption shall arise that the injury alleged is a birth-related neurological injury wh ere it has been demonstrated, to the satisfaction of the Virginia Workers’ Compensation Commission, that the infant has su stained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury, and that the infant was thereby rendered pe rmanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively ev aluated, cognitive ly disabled.- 8 - Code § 38.2-5008(A). Thus, if a claimant can prove: (1) that the infant sustained an injury to the brain or the spinal cord that was caused by deprivation of oxygen or a mechanical injury, and (2) that the injury rendered the infant “p ermanently motorically disabled” and either “developmentally disabled” or “cognitively disabled,” then a presumption arises that a birth-related neurological injury exists. Whitfield , 42 Va. App. at 269, 590 S.E.2d at 636. If the respondent disagrees that the pres umption applies, that party has the burden of proving that the injuries alleged are not birth-rela ted neurological injuries within the meaning of the chapter. Va. Birth-Related Neurological Injury Comp. Program v. Young , 34 Va. App. 306, 310, 541 S.E.2d 298, 300 (2001). A. Whether the Evidence Was Sufficient to Prove that the Infant Is Developmentally or Cognitively Disabled Under the circumstances of this case, the Pr ogram contends that the commission erred in determining that the presumption of Code § 38.2- 5008(A) applies, reasoning that the evidence failed to demonstrate that the infant was both “permanently moto rically disabled” and “developmentally disabled.” Specifically, the Program argues that, although the infant is a paraplegic, proof of physical di sability, standing alone, is insufficient to qualify the infant for benefits under the Act. Although we agree that proof that an infa nt is “permanently motorically disabled” does not necessarily constitute proof that the infant is also “developmentally disabled,” we hold that, under the circumstance s of this case, credible evid ence in the reco rd supports the commission’s determination that the infant has both a motorical disability and a developmental disability. Accordi ngly, we affirm. Initially, we must determine what, exactly, c onstitutes a developmental disability within the meaning of the Code § 38.2-5001. This presents a pure issue of statutory construction, which we review de novo on appeal. See Sink v. Commonwealth , 28 Va. App. 655, 658, 507 S.E.2d 670, 671 (1998) (“[A]lthough the trial court’s findings of historical fact are binding on appeal- 9 - unless plainly wrong, we review th e trial court’s statutory interp retations and legal conclusions de novo .”). We begin, as always, with the plain language of the statute, for “‘[w]here the legislature has used words of a plain and definite impor t the courts cannot put upon them a construction which amounts to holding the legi slature did not mean what it ha s actually expressed.’” Barr v. Town & Country Props., Inc. , 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Watkins v. Hall , 161 Va. 924, 930, 172 S.E. 445, 447 (1934)). “We mu st . . . assume that the legislature chose, with care, the words it used when it enact ed the . . . statute, and we are bound by those words as we interpret the statute.” Id. We note at the outset that the legislatur e did not expressly define the phrase “developmental disability.” The accepted medical definition of “develop mental disability,” however, is a “loss of function brought on by pr enatal and postnatal events in which the predominant disturbance is in the acquisition of cognitive, language, motor , or social skills.” Stedman’s Concise Medical Dictio nary for the Health Professions 241 (3d ed. 1997) (emphasis added); see also 42 U.S.C. § 15002(8) (defining “developmen tal disability” as a “severe, chronic disability” that “is attr ibutable to a mental or physicalimpairment” that “results in substantial functional limitations” in, inter alia , the individual’s self-care, mobility and capacity for independent living (emphasis added)). A “devel opmental disability,” then, need not relate directly to a child’s cognitive capacity. 3 Rather, a “developmental di sability” is any impairment

3 We note that, in Code § 38.2-5001, the legi slature provided that a “birth-related neurological injury” requires proof that the infant is “permanently motorically disabled” and that the infant is either “developmentally disabled” or “cognitively disabled.” To hold that the phrases “developmentally disabled” and “cognitive ly disabled” were synonymous would violate the “elementary rule of statutory construction that every word in th e statute must be given its full effect . . . .” Home Beneficial Life Ins. Co. v. Unemployme nt Compensation Comm’n , 181 Va. 811, 819, 27 S.E.2d 159, 162 (1943).- 10 - in the infant’s physiological development, incl uding a “disturbance” in the “acquisition” of the child’s “motor” skills. Stedman’s , supra , at 241. Thus, we must consider whethe r there is credible evidence in the r ecord to support the commission’s determination that the infant’s physiological development has been impaired. When viewed in the light most favorable to ap pellees, the evidence establishes that the infant was born via emergency caesarian section on Ma rch 8, 2002. During the infant’s birth, he incurred injuries to his head and spinal cord. 4 As a result, the infant had difficulty breathing, lacked spontaneous movement of his lower extremities, and failed to respond to painful stimuli applied to his lower extremities. The infant wa s ultimately diagnosed with paraplegia, abnormal rectal tone, and a “partia l neurogenic bladder.” As a result of his birth-re lated injury, the infant has undergone physical therapy to strengthen his abdominal and back muscles so thathe can maintain a sitt ing position without aid. The infant has also had “aggres sive” physical therapy to help him develop control over the muscles in his arms and hands, and he has undergone occupational therapy in an attempt to address his breathing problems. Curre ntly, the infant is unable to m ove his legs, he has restricted movement of his left arm, he l acks control of his bowel s and bladder, and he is unable to cough productively. From these facts, the commission concluded th at the infant’s “condi tion and failure to meet developmental milestones of self-care a nd motoring skills, and his need for intensive developmental therapies,” rendere d him developmentally disabled. Credible evidence in the record supports this finding. Specifically, in addition to his paraplegia, the infant requires “aggressive” physical therapy to assist with th e development of his abdominal muscles, back

4 The Program does not contend that the eviden ce was insufficient to establish that the infant suffered a birth-related injury to the brai n or the spinal cord that was caused by either deprivation of oxygen or a mechanical injury.- 11 - muscles, diaphragm, and use of his arms and ha nds. One of the infant’s treating physicians noted that the infant’s motor skills, although im paired, “had seen improvement with physical therapy.” Similarly, the Program’s physician not ed that, “from a developmental review,” the infant was “behind” in his “motor abilities” and “has not progressed as . . . hoped.” From these facts, the commission could reasonably have concluded that the infant is undergoing physiological improvement in his abdominal mu scles, back muscles, diaphragm, and upper extremities, but that the infant’s development of these muscle groups has been slowed by his birth-related injuries. Accordingly, we hold that credible eviden ce in the record supports the commission’s determination that the infant has a “developmen tal disability” within the meaning of Code § 38.2-5001. Although there may be evidence to s upport the Program’s position, the appearance of “contrary evidence in the reco rd is of no consequence if ther e is credible evidence to support the commission’s finding.” Wolfe , 40 Va. App. at 580, 580 S.E.2d at 474. Thus, we affirm the commission’s determination that the infant has both a “permane nt motorical disability” and a “developmental disability,” as required by Code § 38.2-5001.

B. Whether the Evidence Was Sufficient to Pr ove that the Infant Would Require Assistance in All Activities of Daily Living According to Code § 38.2-5001, to qualify as a “birth-related neurolog ical injury,” the disability must “cause the infant to be permanently in need of assistance in all activities of daily living.” Here, the Program also contends that th e commission erred in concluding that the infant will need assistance in “all” act ivities of daily living. The Pr ogram reasons that, because the medical evaluations indicate that the infant can communicate, grasp, hold, and reach items, he will in turn be able to perform functions such as brushing his teeth, feeding himself, and rolling a wheelchair. However, because there is cr edible evidence in the record supporting the commission’s conclusion, we affirm.- 12 - Initially, we note that, once a claimant has es tablished that the infant: (1) sustained a brain or spinal cord injury cau sed by oxygen deprivation or mechan ical injury, (2) that rendered the infant “permanently motorically disabled ” and either “developmentally disabled” or “cognitively disabled,” the claimant is entitled to a presumption that the in jury is a birth-related neurological injury. Code § 38.2-5008(A). Hence, once these two elements have been established, the claimant is entitled to a presum ption that the infant will require assistance with all activities of daily living, as required by Code § 38.2-5001. See Whitfield , 42 Va. App. at 273, 590 S.E.2d at 636 (“When these two predicate facts are proved, the factfinder may presume that elements two and four of the statutory definition [in Code § 38.2-5001] are also met.”). And, “[o]nce the presumption ap plies, the burden of proof sh ifts to the party opposing the presumption to disprove elements two and four, and thereby establish ‘that the injuries alleged are not birth-related neurologi cal injuries within the mean ing of the chapter.’” Id. (quoting Wolfe , 40 Va. App. at 578, 580 S.E.2d at 474). As discussed above, the infant successfully de monstrated that he sustained a brain or spinal cord injury during birth, thereby renderi ng him both “permanently motorically disabled” and “developmentally disabled.” Thus, the infa nt was entitled to a presumption that he will require assistance with all activities of daily living, see id. , and the Program had the burden of proving that the infant would not require such assistance. Our inquiry on appeal, then, is whether the commission erred in determining that the Program failed to meet this burden. We hold that it did not. When viewed in the light most favorable to the infant, the evidence establishes that the infant cannot move his legs and th at he does not have full control a nd movement of his left arm. He lacks control of his bowels and his bladder, has difficult y breathing, and cannot cough. He also has an increased susceptibility to respirator y infections. From these facts, the commission- 13 - could reasonably have concluded that the infant will be permanently confined to a wheelchair and that he will need constant daily superv ision and assistance from his caregivers. Thus, we hold that the commission did not err in determining that the Program failed to rebut the statutory presumption thatthe infant will need assistan ce in all activities of his daily living, as required by Code § 38.2-5001. Accordingl y, we conclude that the commission did not err in holding that the infant has a “birth-related neurological injury” within the meaning of the
Act. III. CONCLUSION For these reasons, we hold that the commissi on did not err in qualifying the infant to receive funds from the Virginia Birth-Relate d Neurological Injury Compensation Program. Accordingly, we affirm the judgment below. Affirmed.- 14 - McClanahan, J., dissenting, in pa rt, and concurring, in part. I agree with the majority’s conclusion that the Program substantially complied with the procedural rules and that the McGradys’ motion to dismiss should be denied. However, I dissent from the majority’s decision to affirm. In order to qualify under the Act, Code § 38.2-500 1 requires the infant to establish that he is “permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be c ognitively evaluated, cognitively di sabled.” (Emphases added). The commission concluded the infant had esta blished he was motorically disabled and developmentally disabled. In affirming this de cision, the majority focuses on the second part of the statutory phrase, developmentally or cognitively disabled, and concludes that a motoric disability may, and in this case does, constitute a developmental disabi lity. This statutory interpretation ignores the plain language of the statute, the General Assembly’s use of the preceding conjunction “and.” We assume the legislature chose its word w ith care, Barr v. Town & Country Props. Inc. , 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990), and may not depart “from the words used when the [legislature’s] intention is clear,” Anderson v. Commonwealth , 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944). The plain language of the st atute requires proof of a motoric “and” developmental disability. Ther efore, a motoric disability cannot be a component of a developmental disability. “[A]ll the words used [in a statute] are presumed to have an effect.” Level 3 Commc’ns of Virginia , Inc. v. State Corp. Comm’n , 268 Va. 471, 477, 604 S.E.2d 71, 73 (2004) (where two requirements ar e stated, the use of the same evidence to prove both renders the second requirement “superfluous”). Clearly, th e legislature required a different, additional disability when it added developmental or cognitive disability after motoric disability. See Varga v. Commonwealth , 260 Va. 547, 551, 536 S.E.2d 711, 714 (2000) (“by use of the- 15 - conjunctive ‘and,’ the st atute is clear that both ” components must be met (emphasis added)); Tucker v. Wimer , 42 Va. App. 42, 45, 590 S.E.2d 73, 74 (2003) (same). For these reasons, I would hold that the comm ission erred in finding the infant proved he was motorically and developmentally disabled. Accordingly, I would reverse the commission’s determination that the infant qualified under the Act.