Commonwealth v. Bakke

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Haley and Retired Judge Rosenblatt∗
Argued at Alexandria, Virginia

COMMONWEALTH OF VIRGINIA,
VIRGINIA BIRTH-RELATED NEUROLOGICAL
INJURY COMPENSATION PROGRAM AND
VIRGINIA BIRTH-RELATED NEUROLOGICAL
PROGRAM BOARD
OPINION BY
v. Record No. 2351-04-4 JUDGE JAMES W. BENTON, JR.
SEPTEMBER 27, 2005
MICHELE BAKKE, JONATHAN BAKKE,
SUSAN L. RATTNER, M.D., WOMEN PHYSICIANS
OF NORTHERN VIRGINIA, P.C. AND
RESTON HOSPITAL CENTER, LLC d/b/a RESTON
HOSPITAL CENTER AND/OR COLUMBIA RESTON
HOSPITAL CENTER

FROM THE VIRGINIA WORKERS’ COMPENSATION COMMISSION

Carla R. Collins, Assistant Attorney General (Jerry W. Kilgore,
Attorney General; Francis S. Ferguson, Deputy Attorney General, on
briefs), for appellant.

Lesley S. Zork (Bruce J. Klores; Bruce J. Klores & Associates, P.C.,
on brief), for appellees Michele Bakke and Jonathan Bakke.

Joyce A.N. Massey (Susan L. Mitchell; McCarthy, Massey &
Mitchell, P.C., on brief), for appellees Susan L. Rattner, M.D. and
Women Physicians of Northern Virginia, P.C.

No brief or argument for appellee Reston Hospital Center, LLC
d/b/a Reston Hospital Center and/or Columbia Reston Hospital
Center.

The Workers’ Compensation Commission awarded benefits and expenses under the

Virginia Birth-Related Neurological Compensation Act, Code §§ 38.2-5009 through 38.2-5021,

∗
Retired Judge Alan E. Rosenblatt took part in the consideration of this case by
designation pursuant to Code § 17.1-400.
to Michele Bakke and Jonathan Bakke, parents and next friends of Jenna Marie Bakke. The

Commonwealth of Virginia, Virginia Birth-Related Neurological Injury Compensation Program,

and the Virginia Birth-Related Neurological Injury Compensation Program Board (collectively

designated “the Program”) contend the commission erred (1) in applying the Act’s rebuttable

presumption that the infant’s injury is a birth-related neurological injury, (2) in finding that some

of the physicians were the most qualified to evaluate the timing of the infant’s injury, (3) in

concluding that evidence was insufficient to rebut the presumption, and (4) in finding that the

Program failed to prove a specific non-birth-related cause of the injury. We affirm the

commission’s award.

I.

During her pregnancy, Michele Bakke received a diagnosis of HELLP syndrome

(hemolysis, elevated liver enzyme levels and low platelet count) and preeclampsia. Because of

the life-threatening dangers to Bakke and her child associated with these conditions and because

of Bakke’s low platelet count, physicians delivered her child by cesarian section without labor.

At her birth on September 2, 1999, the infant’s gestational age was estimated to be twenty-nine

weeks. She weighed .885 kilograms and was 33 centimeters long. The medical records indicate

the infant had “NO RESPIRATION” at delivery and was intubated immediately. A handwritten

note included within the delivery records shows that she “did make some resp effort.” At that

time, the infant’s Apgar score was five. Five minutes after birth, her Apgar score was seven.

When the infant was admitted to the neonatal intensive care unit, a note indicated her condition

as “responsive in severe respiratory distress.” The infant’s chest x-ray report indicated “WHITE

OUT LUNGS,” and the infant was put on a ventilator, where she remained for a month. The

discharge summary noted diagnoses for twelve diseases or conditions.

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 The medical records from the period of the infant’s birth to her discharge from the

hospital on December 7, 1999 are extensive. Likewise, the commission’s record contains

extensive testimony, reports, and other documents from physicians regarding the infant’s

condition at birth and later. In two succinct sentences, the commission addressed the nub of the

issue in this case:

The medical professionals who have evaluated [the infant’s]
medical history disagree regarding when and how [she] actually
sustained the injury causing her cerebral palsy. While Dr. [James
T.] Christmas and the members of the [medical panel] who
reviewed [the infant’s] case have opined that [she] did not sustain
an injury during the course of her labor, delivery, resuscitation or
immediately after her birth, Dr. [J. Peter] VanDorsten, Dr. [Daniel]
Lefton, Dr. [M. Elizabeth] Latimer and Dr. [Marcus C.]
Hermansen have all opined that [she] was injured around the time
of her birth.

In a lengthy opinion, the commission reviewed in detail the medical evidence and found that the

more persuasive opinions were rendered by those physicians who opined that the damage to the

infant’s brain was caused at birth. The Program contends that the commission’s reasoning is

flawed and that the award should be reversed.

II.

The Virginia Birth-Related Neurological Injury Compensation Act provides

compensation to families whose infants suffer “birth-related neurological injuries” caused by a

participating physician or a participating hospital. Code §§ 38.2-5000 to 38.2-5021. A

“birth-related neurological injury” is defined as follows:

[I]njury 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.

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Code § 38.2-5001. Thus, to satisfy this statutory definition the following four factors necessarily

must be established:

(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 activities of daily living.”

Central Virginia Obstetrics & Gynecology Assoc., P.C. v. Whitfield, 42 Va. App. 264, 273, 590

S.E.2d 631, 635-36 (2004) (quoting Code § 38.2-5001) (footnote omitted).

III.

Initially, we address the Program’s contention that the commission “err[ed] in applying

the presumption set forth in . . . Code § 38.2-5008.” We conclude that this claim lacks merit.

“The legislature, recognizing the difficulty in proving when, but not whether, such an

injury was sustained, enacted a presumption to assist potential claimants in obtaining benefits.”

Wolfe v. Virginia Birth-Related Neuro. Injury Comp. Pgm., 40 Va. App. 565, 578, 580 S.E.2d

467, 473 (2003). This presumption is described by the statute 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.

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Code § 38.2-5008(A)(1). “Once the presumption applies, the burden of proof shifts to the party

opposing the presumption to disprove elements two and four[, as listed in Part II above], and

thereby establish ‘that the injuries alleged are not birth-related neurological injuries within the

meaning of the chapter.’” Whitfield, 42 Va. App. at 273, 590 S.E.2d at 636 (quoting Wolfe, 40

Va. App. at 578, 580 S.E.2d at 474 and Code § 38.2-5008(A)(1)).

On its review, the commission ruled that the deputy commissioner “concluded that the

medical evidence predominated in establishing that the presumption provided in Code

§ 38.2-5008 applies to [the infant’s] case and the program has not requested review of that

finding.” Credible evidence in the record supports this ruling.

The deputy commissioner found,

after considering the three volumes of medical records plus all of
the expert medical opinions . . . , that the infant is entitled to the
rebuttable presumption that her injury as alleged is a birth-related
neurological injury caused by oxygen deprivation . . . [,] that the
infant is both developmentally and cognitively disabled . . . [, and
that the] physicians and hospital also participated in the Program.

The deputy commissioner expressly relied upon the opinions of Drs. VanDorsten, Latimer,

Lefton, and Hermansen to support these findings.

On the commission’s review, the Program asserted in its written statement that the deputy

commissioner’s “ruling is consistent with and founded upon a correct application of the law and

. . . credible evidence.” The Program’s written statement concluded “that the rulings of [the

deputy commissioner] . . . should be sustained and affirmed in full.” This unambiguous, express

language in the Program’s written statement supports the commission’s finding that the issue of

the infant’s entitlement to the rebuttable presumption was not raised by the Program at the

commission’s review.

Rule 5A:18 bars our review of issues that were not put “before the commission on review

in [the party’s] written statement or its reply to the [other party’s] written statement . . . [and that
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were] not considered by the full commission.” Berner v. Mills, 38 Va. App. 11, 18, 560 S.E.2d

925, 928 (2002). See also Williams v. Gloucester Sheriff’s Dep’t, 266 Va. 409, 411, 587 S.E.2d

546, 548 (2003) (noting that parties may raise issues before the commission by motions to

reconsider); Overhead Door Co. of Norfolk v. Lewis, 29 Va. App. 52, 62, 509 S.E.2d 535,

539-40 (1999) (same); Steadman v. Liberty Fabrics, Inc., 41 Va. App. 796, 806 n.3, 589 S.E.2d

465, 467 n.3 (2003) (noting failure of the party to appeal an issue decided adversely by the

deputy commissioner and declining to consider that issue on appeal because it was not addressed

by the commission on review). We hold that credible evidence in the record supports the

commission’s finding that the Program did not present for review the deputy commissioner’s

ruling that the evidence was sufficient to entitle the infant to the Code § 38.2-5008 presumption.

Accordingly, this issue is not properly preserved for appeal.

IV.

The Program also contends the commission erred in concluding the evidence was

“insufficient to defeat the presumption set forth in . . . Code § 38.2-5008(A)(1).” The Program

argues that (1) the physicians the commission relied upon were not the most qualified to evaluate

the timing of the injury, (2) the opinions expressed by the medical panel and Dr. Christmas were

sufficient to prove the injury did not occur during delivery or resuscitation in the immediate

post-delivery period, and (3) the evidence was sufficient to prove a specific non-birth-related

cause of the infant’s injury. We disagree.

The Act provides that “[t]he determination of the Commission pursuant to [Code]

§ 38.2-5008[(A)(1) through (A)(3)] . . . , or a determination or award of the Commission upon

. . . review [of the evidence], as provided in [Code] § 38.2-5010, shall be conclusive and binding

as to all questions of fact.” Code § 38.2-5011. On appeal from the commission’s review of the

evidence and from its decision under the Act, we apply our usual standard of review and

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consider the evidence “in the light most favorable to the prevailing party before the

commission.” Whitfield, 42 Va. App. at 269, 590 S.E.2d at 634.

A.

The Program contends the commission’s decision is flawed because the commission

“erred in concluding that certain medical experts are the most qualified to evaluate the timing of

the injury . . . based solely on their stated occupations or specialities.” Essentially, the Program

contends we should overturn the commission’s finding that the injury occurred at the time of the

birth because the Program’s expert was more qualified to make that determination.

Resolving the conflicting testimony of the physicians, the commission made the

following findings:

Of the physicians who have offered expert opinions in this case,
we conclude that Drs. Hermansen and Latimer are the most
qualified to evaluate the timing of the injury causing [the infant’s]
cerebral palsy. Dr. Hermansen is a pediatrician who specializes in
neonatology and Dr. Latimer is a neurologist specializing in
treating children. In contrast, Drs. Christmas, VanDorsten and the
members of the [medical panel] are obstetricians, gynecologists
and specialists in maternal-fetal medicine who, although involved
in high-risk pregnancies involving mothers and fetuses, do not
regularly treat infants after their birth.

On appeal, we are guided by the statutory mandate of Code § 38.2-5011 and well-settled

principles. The Supreme Court has held that “[t]he Commission’s factual findings are

‘conclusive and binding’ and a question raised by ‘conflicting expert medical opinions’ is ‘one of

fact.’” Eccon Const. Co. v. Lucas, 221 Va. 786, 790, 273 S.E.2d 797, 799 (1981) (citations

omitted). In other words, the commission is to decide the “probative weight” to be given to

conflicting medical evidence. C.D.S. Const. Services v. Petrock, 218 Va. 1064, 1071, 243

S.E.2d 236, 241 (1978).

We have applied these same principles in appeals concerning the commission’s

consideration of conflicting medical opinions when resolving issues arising under the Act.
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 “Questions raised by conflicting medical opinions must be
decided by the commission.” 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 binding as to all questions of fact.” Medical
evidence, therefore, remains “subject to the commission’s
consideration and weighing.” And the appearance of “contrary
evidence in the record is of no consequence if there is credible
evidence to support the commission’s finding.”

Whitfield, 42 Va. App. at 279, 590 S.E.2d at 639 (citations omitted). See also Kidder 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).

The commission reviewed the evidence, the qualifications of the physicians, and the areas

of conflict among the physicians. The commission did not conclude that the Program’s experts

were incredible but, rather, found the opinions of the other physicians to be more persuasive.

We cannot say that the commission erred by giving more weight to the opinions of those

physicians who specialize in neonatology and pediatric neurology. As we and the Supreme

Court have often explained, “[t]he deference that we give to the commission’s fact finding on

medical questions is based upon the ‘unwisdom of an attempt by . . . [courts] uninitiated into the

mysteries [of the medical science debate] to choose between conflicting expert medical

opinions.’” Stancill v. Ford Motor Co., 15 Va. App. 54, 58, 421 S.E.2d 872, 874 (1992) (quoting

Johnson v. Capitol Hotel, Inc., 189 Va. 585, 590, 54 S.E.2d 106, 109 (1949)). See also Amelia

Sand Co. v. Ellyson, 43 Va. App. 406, 409, 598 S.E.2d 750, 751 (2004). We, therefore, decline

the Program’s invitation to consider the institutions from which the physicians graduated and

received their training as a basis for concluding the commission should have given the testimony

of other physicians greater weight. We hold that the commission thoroughly examined the

evidence and made a factual determination that is supported by credible evidence.

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 B.

The Program contends the commission “erred in concluding that the opinions . . . by the

[medical panel] and Dr. Christmas regarding the timing of the injury . . . were insufficient to

defeat the presumption.” We disagree.

“[T]o defeat the Code § 38.2-5008(A)(1) presumption, the Program must prove, to a

reasonable degree of medical certainty both (1) that the [infant’s] . . . injury did not occur ‘in the

course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital’ and

(2) that there was a specific, non-birth-related cause of the injury.” Coffey v. Va. Birth-Related

Neur. Injury Comp. Pgm., 37 Va. App. 390, 402, 558 S.E.2d 563, 569 (2002).

“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.’”

Young, 34 Va. App. at 317, 541 S.E.2d at 304 (citation omitted).

The commission made extensive findings supporting its conclusion that the Program

failed to rebut the presumption contained in Code § 38.2-5008(A)(1). We relate in detail a

portion of those findings:

Of the physicians who have offered expert opinions in this case,
we conclude that Drs. Hermansen and Latimer are the most
qualified to evaluate the timing of the injury causing [the infant’s]
cerebral palsy . . . .

Both Dr. Hermansen and Dr. Latimer have opined that the
damage to [the infant’s] brain was caused near the time of her
birth, and we find their opinions to be persuasive. We also
disagree with the [deputy commissioner’s] conclusion that there is
no objective evidence supporting the opinions of Drs. Hermansen
and Latimer.

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 [The infant’s] medical records immediately after her birth show
that she displayed no respirations prompting those who were
treating her to intubate immediately. A chest x-ray was taken
showing “whiteout lungs” and [the infant] was diagnosed with
respiratory distress syndrome and hylan membrane disease,
causing her to be placed on mechanical ventilation for a significant
period of time while she was in NICU. It is also undisputed that
hylan membrane disease interferes with the delivery of oxygen to
the body.

Although [the infant’s] initial blood gas levels were read as
normal, these levels were taken after [she] had been given oxygen.
The medical records also reflect that [the infant] was treated for
metabolic acidosis within the first day of her life, despite her base
excess level of -9.5 falling within the “normal” range for a full
term infant, thereby supporting Dr. Hermansen’s conclusion that
[the infant] had at least some level of metabolic acidosis.

In addition, [the infant’s] medical records show that she
suffered from hypotension at birth and for several days thereafter.
Dr. Latimer explained that such hypotension is “commonly
known” to cause PVL and PVL is known to cause cerebral palsy.
Dr. Christmas agreed while testifying that hypotension can injure
the brain and cause PVL in pre-term infants.

Furthermore, as noted by Dr. Hermansen, [the infant’s] head
ultrasound performed on September 4, 1999, and reviewed by
Dr. Lefton, a neuroradiologist, showed evidence of a cerebral
edema soon after [the infant’s] birth, thereby supporting the
conclusion that [the infant] had sustained a recent brain injury.
The lack of PVL on [the infant’s] first ultrasound constitutes
additional evidence that her brain injury did not occur long before
her birth.

Upon our Review of the medical records in their entirety and
our Review of the various opinions expressed by experts in this
case, we conclude that the evidence with respect to the timing of
the oxygen deprivation causing the injury to [the infant’s] brain is,
at most, equipoise. Therefore, while we do not ignore the opinions
expressed by the [medical panel] and Dr. Christmas, we conclude
that their opinions are insufficient, in light of the contrary opinions
expressed by Drs. Hermansen and Latimer, as buttressed by
Drs. Lefton and VanDorsten, to defeat the presumption of Code
§ 38.2-5008(A)(1).

The Program challenges these findings and contends there was “no evidence of metabolic

acidosis or [edema] in the medical records and no specific reference to an hypoxic event during

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the statutory period.” We disagree. Simply put, the Program asks us to reweigh the evidence,

contrary to our standard of review, and find in its favor. As we have consistently held in

reviewing decisions under the Act, “the appearance of ‘contrary evidence in the record is of no

consequence if there is credible evidence to support the commission’s finding.’” Whitfield, 42

Va. App. at 279, 590 S.E.2d at 639 (quoting Young, 34 Va. App. at 318, 541 S.E.2d at 304, and

Kidder, 37 Va. App. at 778, 560 S.E.2d at 913). A review of the record demonstrates substantial

credible evidence supporting the commission’s findings.

Significantly, the commission gave thorough and reasoned consideration to the contrary

opinions of the Program’s medical expert, Dr. Christmas, when it made its decision. To take one

example, Dr. Christmas recognized the possibility of edema, testifying that “there is allegedly

edema noted on the first scan and two weeks later there’s not any edema so . . . it must have been

very mild edema noted on the first exam if, in fact, there was any edema.” Reviewing his

testimony, the commission found that Dr. Christmas merely “speculated that the cerebral edema

shown on the first ultrasound must have been fairly small” and noted that “Dr. Christmas did not

actually review the ultrasounds.” The commission further noted that Dr. Christmas “also

deferred to a radiologist regarding what [the ultrasounds] actually showed.”

The commission gave greater weight to the opinion of Dr. Daniel Lefton, a board

certified radiologist who also has a qualification in neuroradiology. Unlike Dr. Christmas,

Dr. Lefton actually examined the ultrasounds. He reported “[t]o a reasonable degree of medical

certainty [the infant’s] brain injury (PVL) resulted from a hypoxic-ischemic encephalopathy

during the immediate delivery and resuscitation period.” In support of his conclusion, he noted

the following:

Both of the MRI studies show clear evidence of periventricular
leukomalacia (PVL): an hypoxic ischemic injury to the white
matter of the brain surrounding the ventricles. This
neuroradiologic finding is typically found in premature infants
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 requiring resuscitation and mechanical ventilation at the time of
delivery . . . .

The September 4, 1999, head ultrasound performed on day two
of life is strongly consistent with the opinions expressed above,
and further confirms that [the infant’s] injury occurred at or about
the time of delivery. The films from this study show increased
echogenicity, or “cerebral edema.” The finding of cerebral edema
on ultrasound is an early radiologic manifestation of an hypoxic
ischemic injury that is later manifested as PVL. PVL is not usually
seen radiographically until about two weeks after the
hypoxic/ischemic event.

In conclusion, these three studies demonstrate that [the infant]
suffered a brain injury to the periventricular white matter from lack
of oxygen or blood supply at or around the time of birth.

In contrast to Dr. Christmas’s conclusion that the edema must have been mild, Dr. M.

Elizabeth Latimer, a board certified child neurologist who examined the infant and reviewed the

medical records, reported the following:

[The infant] did have an ultrasound done on day 2 of life which
showed no hemorrhage but did show cerebral edema. This was not
reported at the time of exam, most likely because the primary focus
of the initial exam was to rule out intraventricular hemorrhage. On
the subsequent exams in the NICU, [the infant] had resolution of
the cerebral edema which clearly times the cerebral insult to the
immediate perinatal period. Additionally, there is no evidence of
periventricular leukomalacia on the initial exam. The absence of
the appearance of periventricular leukomalacia makes it highly
unlikely that the injury occurred significantly prior to delivery . . . .

With regard to imaging studies, she had an MRI done . . . at age
one which although read as normal, clearly was not. This MRI
definitely demonstrates Periventricular Leukomalacia. This
finding is highly significant because it is seen primarily in
premature infants who also have either hypoxemia or hypotension
during the immediate perinatal period. This area of the brain in
premature infants is extremely vulnerable to low flow states, such
as low blood pressures, which [the infant] sustained during the
immediate resuscitation period following delivery. The reason for
this is because premature babies delivered prior to 32 weeks
gestation lack autoregulation . . . . In the premature infant, there is
no autoregulation so when the blood pressure drops, the blood flow
to the brain drops accordingly. The vulnerable portion of the
brain, the periventricular region is the most vulnerable and in this
case the most damaged.
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 * * * * * * *

In summary, [the infant] has a Permanent Neurologic Injury
caused by a lack of oxygen to the brain, which is severe and is
temporally related to the immediate period following her
premature birth. She had profound hypotension at birth which was
documented and treated in the records. It is commonly known that
such hypotension at this stage of prematurity causes Periventricular
Leukomalacia. She is permanently disabled with no hope of
meaningful recovery. She is likely to never walk independently.
She is most likely, at best, to have an IQ of 25-50, and will never
be employable. She will require assistance with all activities of
daily living for her entire life and is expected to have a normal life
span.

Dr. Marcus Hermansen, a board certified pediatrician and neonatologist also reviewed the

medical records and Dr. Lefton’s report. He opined as follows:

PVL is a form of ischemic (inadequate blood flow) brain injury
seen most commonly in premature infants. [The infant’s] PVL
occurred around the time of her birth. This timing is based upon
her critical condition at birth and in the immediate post-birth
period and the cerebral edema on the head ultrasound study at two
days of age. Immediately after her birth she had no respiratory
effort followed by severe respiratory distress. She also had a
metabolic acidemia and severe hypotension. All of these clinical
observations demonstrate evidence of brain ischemia.

Cerebral edema is seen on neuro-imaging studies for a few days
following significant brain injury. The typical changes of PVL are
seen weeks or months later. The presence of cerebral edema on
September 4, 1999 is strong evidence of recent brain injury. In
addition, the lack of PVL on the initial ultrasound is strong
evidence that the brain injury did not occur long before the birth.

The record likewise contains evidence to support the commission’s finding, which is

contested by the Program, that at birth the infant “displayed no respiration prompting those who

were treating her to intubate immediately.” Dr. James VanDorsten, who is board certified in

maternal fetal medicine and is chairman of the department of obstetrics and gynecology at a

medical university, testified that the infant had hypotension in the immediate post-delivery

period, that the infant “was not breathing at all” at birth, and that this “required an intervention,

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an intubation.” He opined that “[i]ntubation at less than a minute by experienced neonatologists

. . . would be unusual.” That is, the physicians would not have intubated so quickly had the

infant not been in serious respiratory distress. He also testified that the infant “had acidosis in

the first day of life that required treatment with bicarbonate,” which was another indication that

the infant did not receive adequate oxygen, resulting in her injury.

This is the evidence the commission found to be persuasive. These reports refute the

Program’s suggestion that the commission’s findings lacked credible evidentiary support. As the

Supreme Court has consistently held, a “finding of the Commission upon conflicting medical

testimony that a condition . . . was due to [one cause] rather than to [another cause] is . . . a

finding of fact” and is conclusive and binding on appeal. Johnson, 189 Va. at 588, 54 S.E.2d at

107-08 (citing Estep v. Blackwood Fuel Co., 185 Va. 695, 699, 40 S.E.2d 181, 183 (1946), and

Mulkey v. Firth Bros. Iron Works, 188 Va. 451, 455, 50 S.E.2d 404, 406 (1948)).

The Program argues that the commission “erred as a matter of law in finding the evidence

to be in equipoise” when its expert and the medical panel gave opinions “to a reasonable degree

of medical certainty.” This argument about “reasonable medical certainty” was not posed as a

question presented for review but, rather, is raised merely in the context of suggesting that the

commission gave the opinions of various physicians undue weight. Significantly, the Program

does not contend that the medical evidence the commission considered was not credible. As we

explained in Georgia-Pacific Corp. v. Robinson, 32 Va. App. 1, 526 S.E.2d 267 (2000), the

commission determines which medical evidence is credible.

Applying equally well-settled principles, the Supreme Court has
held that the “question [of causation] raised by ‘conflicting expert
medical opinions’ is one of fact.” Eccon Constr. Co. v. Lucas, 221
Va. 786, 790, 273 S.E.2d 797, 799 (1981). Thus, the
commission’s “finding upon conflicting medical evidence that a
certain condition does or does not exist is . . . a conclusive finding
of fact.” McPeek v. P.W. & W. Coal Co., 210 Va. 185, 188, 169
S.E.2d 443, 445 (1969). “The deference that we give to the
- 14 -
 commission’s fact finding on medical questions is based upon the
‘unwisdom of an attempt by . . . [courts] uninitiated into the
mysteries [of the medical science debate] to choose between
conflicting expert medical opinions.’” Stancill v. Ford Motor Co.,
15 Va. App. 54, 58, 421 S.E.2d 872, 874 (1992) (citation omitted).

Robinson, 32 Va. App. at 5, 526 S.E.2d at 268-69.

Furthermore, the suggestion that the other evidence was “not equal” to the Program’s

evidence lacks merit. When asked whether he rendered his opinions “to a reasonable degree of

medical certainty,” Dr. VanDorsten expressly testified, “I do.” The record also indicates

Dr. Lefton asserted that he “h[e]ld the opinions [he has] stated . . . to a reasonable degree of

medical probability.” Dr. Hermansen likewise stated that his “opinions are expressed to a

reasonable degree of medical probability.” Although Dr. Latimer did not couch her opinion in

those express terms, her report contains no expressions of uncertainty or speculation. Her report,

which we have quoted in detail earlier in this opinion, is prefaced with the following paragraph:

I am a Board Certified Child Neurologist. It is within the scope
of my training and practice to evaluate and treat neonates in the
intensive care nursery who have sustained neurologic injury. It is
also within my scope of practice to determine timing and causation
of injury and routine to read radiologic studies on these patients. I
have reviewed prenatal and delivery records of Michele Bakke,
neonatal intensive care unit . . . records on [the infant], films of
ultrasound studies performed on [the infant] . . . , MRI studies . . . ,
and subsequent records of her treating physicians and healthcare
providers. In addition, I examined [the infant] in my office on July
16, 2003. In this light these are my findings.

Dr. Latimer’s report was competent medical evidence that the commission weighed with

other medical evidence and accepted as persuasive. When a physician’s opinion is certain and

accepted by the commission, this Court “will not substitute form over substance by requiring a

physician to use the magic words ‘to a reasonable degree of medical certainty.’” Island Creek

Coal Co. v. Breeding, 6 Va. App. 1, 11-12, 365 S.E.2d 782, 788 (1988). Indeed, in Lindenfield

v. City of Richmond Sheriff’s Office, 25 Va. App. 775, 492 S.E.2d 506 (1997), we affirmed the

- 15 -
commission’s decision to deny benefits to a claimant who suffered from tuberculosis, which he

alleged he contracted while working at the jail. The record contained the opinions of three

physicians regarding the causation of the disease, only one of which was an opinion “to a

reasonable degree of medical certainty that [the] claimant contracted tuberculosis while working

in the jail.” Id. at 781, 492 S.E.2d at 509. Noting that the commission found more persuasive

the opinion of the two physicians who did not use these words, we held that “the commission, as

the trier of fact,” was permitted “to assign . . . little weight” to the opinion of the other physician

in resolving the claim under Code § 65.2-401. Id. at 786, 492 S.E.2d at 512. Since our decision

in Lindenfield, the legislature has amended Code § 65.2-401 to delete the requirement to prove

the evidence “to a reasonable degree of medical certainty.”

Simply put, the Program presents a view of the evidence consistent solely with the

testimony and reports of those physicians the commission found to be less persuasive. The

fallacy in the Program’s analysis is demonstrated by its argument that “[b]ecause the Full

Commission made no assertion that [the deputy commissioner’s] determinations of fact were

plainly wrong, the Full Commission’s reversal of those factual findings was arbitrary and

capricious and erroneous as a matter of law.” It is well settled that the commission is the finder

of fact. When the commission “articulate[s] a basis for its conclusion . . . that . . . is supported by

credible evidence in the record,” we are bound by its finding, not a contrary one made by the

deputy commissioner. Goodyear Tire & Rubber Co. v. Pierce, 9 Va. App. 120, 127, 384 S.E.2d

333, 337 (1989). See also Grayson County School Bd. v. Cornett, 39 Va. App. 279, 286 n.2, 572

S.E.2d 505, 508 n.2 (2002); Lanning v. Va. Dept. of Trans, 37 Va. App. 701, 709, 561 S.E.2d 33,

37 (2002); Bullion Hollow Enterprises, Inc. v. Lane, 14 Va. App. 725, 728-29, 418 S.E.2d 904,

907 (1992); Williams v. Auto Brokers, 6 Va. App. 570, 573-74, 370 S.E.2d 321, 323-24 (1988).

Even in cases, unlike this one, where the deputy commissioner makes credibility findings based

- 16 -
on a witness’ demeanor, that finding is not unreviewable by the commission. Lane, 14 Va. App.

at 729, 418 S.E.2d at 907. By statute, a request for review empowers the commission to consider

the case de novo. Code § 65.2-705.

We hold, therefore, that credible evidence in the record supports the commission’s

conclusion that the Program failed to rebut the presumption.

C.

Although unnecessary in light of our holding, we address for completeness the Program’s

contention that the evidence “established by a preponderance that uteroplacental insufficiency

was the specific non-birth related cause of this infant’s cerebral palsy.” It argues that

Dr. Christmas’s testimony and the other medical evidence support this conclusion.

The commission specifically addressed this aspect of Dr. Christmas’s testimony. It found

that “[a]lthough Dr. Christmas opined that [the infant] suffered a hypoxemic event resulting from

uteroplacental insufficient and resulting in PVL, he acknowledged that there was no evidence

based on fetal monitor tracings showing that [she] suffered a neurologic injury before her birth.”

The commission also noted that Dr. Christmas “agreed that there was no evidence of any acute

trauma or infection in the uterus during . . . Bakke’s pregnancy and could not identify precisely

when [the infant’s] injury occurred before her delivery.”

A review of Dr. Christmas’s testimony and the reports supports these findings. In

addition, the commission considered and weighed Dr. VanDorsten’s assessment of this specific

testimony of Dr. Christmas and his conclusion that Dr. Christmas’s testimony was “way off

base.” As we have repeated throughout, “[i]t was peculiarly within the province of the

Commission to decide what evidence, if credible, was entitled to greater weight.” McPeek, 210

Va. at 188, 169 S.E.2d at 445, and, if a portion of the medical evidence “is in conflict with other

- 17 -
medical evidence, the Commission is free to adopt that view ‘which is most consistent with

reason and justice,’” Robinson, 32 Va. App. at 5, 526 S.E.2d at 269 (citations omitted).

V.

For these reasons, we affirm the commission’s award.

Affirmed.

- 18 -
Haley, J., concurring, in part and dissenting, in part.

I.

CONCURRENCE

I concur in the majority’s view “that credible evidence . . . supports the commission’s

finding that the Program did not present for review the deputy commissioner’s ruling that the

evidence was sufficient to entitle the infant to the Code § 38.2-5008 presumption.”

I respectfully dissent, however, to the majority’s view that the Program failed to rebut the

Code § 38.2-5008 presumption.

II.

THE STATUTE AND THE PRESUMPTION

Succinctly stated, and as here applicable, under the Virginia Birth-Related Neurological

Compensation Act (the “Act”), if an infant suffers “‘an injury to the brain’ . . . that was ‘caused

by deprivation of oxygen’” proximately causing permanent damage requiring assistance in daily

living, a rebuttable presumption arises that “[t]he injury occurred ‘in the course of labor, delivery

or resuscitation . . . .’” Central Va. Obstetrics & Gynecology Assocs. v. Whitfield, 42 Va. App.

264, 272, 590 S.E.2d 631, 635 (2004) (quoting Code § 38.2-5001); see also Code § 38.2-5008;

Wolfe v. Va. Birth-Related Neuro. Injury Comp. Program, 40 Va. App. 565, 577-78, 580 S.E.2d

467, 473 (2003).

“[T]o defeat the Code § 38.2-5008(A)(1) presumption, the Program must prove, to a

reasonable degree of medical certainty . . . both (1) that the [infant’s] . . . injury did not occur ‘in

the course of labor, delivery or resuscitation in the immediate post-delivery period in a hospital’

and (2) that there was a specific, non-birth-related cause of the injury.” Coffey v. Va. Birth-

Related Neuro. Injury Comp. Program, 37 Va. App. 390, 402, 558 S.E.2d 563, 569 (2002)

(citation omitted).

- 19 -
 III.

THE STANDARD OF REVIEW

While it is true that pursuant to Code § 38.2-5011, the determination of the full

commission is conclusive as to questions of fact, “the reviewing court must assess whether there

is credible evidence to support the Commission’s award.” Bass v. City of Richmond Police

Department, 258 Va. 103, 115, 515 S.E.2d 557, 563 (1999) (emphasis added).

Credible evidence has been defined by Black’s Law Dictionary 366-67 (6th ed. 1990) as

follows:

Evidence to be worthy of credit must not only proceed from a
credible source but must, in addition, be “credible” in itself, by
which is meant that it shall be so natural, reasonable and probable
in view of the transaction which it describes or to which it relates
as to make it easy to believe it, and credible testimony is that
which meets the test of plausibility.

In Hercules, Inc. v. Gunther, 13 Va. App. 357, 361, 412 S.E.2d 185, 187 (1991), this

Court stated:

On appeal, factual findings of the commission will not be
disturbed if based on credible evidence. Morris v. Badger
Powhatan/Figgie Int’l, Inc., 3 Va. App. 276, 279, 348 S.E.2d 876,
877 (1986). The commission may not arbitrarily disregard
uncontradicted evidence of unimpeached witnesses, which is not
inherently incredible and not inconsistent with other facts in the
record. Id. Whether credible evidence exists to support a factual
finding is a question of law which is properly reviewable on
appeal. See Ablola v. Holland Road Auto Ctr., Ltd., 11 Va. App.
181, 183, 397 S.E.2d 541, 542 (1990). Causation is a factual
determination to be made by the commission, but the standards
required to prove causation and whether the evidence is sufficient
to meet those standards are legal issues which we must determine.
Morris v. Morris, 238 Va. 578, 385 S.E.2d 858 (1989).

The Virginia Supreme Court has also noted this distinction. In Goodyear Tire and

Rubber Co. v. Watson, 219 Va. 830, 252 S.E.2d 310 (1979), the Court held:

Upon appeal, the Commission’s findings of fact, based on
credible evidence, are conclusive and binding upon us. Code
- 20 -
 § 65.1-98. If, however, there is no credible evidence to support the
Commission’s findings of fact, its findings are not binding on us
and the question of the sufficiency of the evidence becomes one of
law. A & P v. Robertson, 218 Va. 1051, 1053, 243 S.E.2d 234,
235 (1978); Conner v. Bragg, 203 Va. 204, 207, 123 S.E.2d 393,
395 (1962).

Id. at 833, 252 S.E.2d at 312.

Also pertinent to issues here raised is the standard by which physical evidence is to be

contrasted to oral testimony.

“[W]hen physical facts are relied upon to overcome oral testimony they must be

established by evidence so clearly preponderating that the existence of such facts is

unmistakable.” Weddle v. Draper, 204 Va. 319, 323, 130 S.E.2d 462, 466 (1963). Oral evidence

is overcome only when “‘the physical facts are such as to demonstrate that the oral evidence . . .

is incredible.’” Parker v. Davis, 221 Va. 299, 304-05, 269 S.E.2d 377, 381 (1980) (quoting

Noland v. Fowler, 179 Va. 19, 23, 18 S.E.2d 251, 253 (1942)).

The commission’s decision must be likewise based upon competent evidence. To be

credible, a medical opinion must be stated to a “reasonable degree of medical certainty or

probability.” In a case involving the Code § 38.2-5008 presumption here under discussion, this

Court reversed the commission’s finding that the Program had overcome the presumption. It did

so because the commission had relied upon opinions offered by the Program which were not

stated to a reasonable degree of medical certainty:

No physician concluded, to a reasonable degree of medical
certainty, that [infant’s] injuries did not occur at birth. . . . None of
these opinions was stated to a reasonable degree of medical
certainty. . . . The evidence failed, as a matter of law, to support
the commission’s holding that the Program had rebutted the Code
§ 38.2-5008(A)(1) presumption.

- 21 -
Coffey, 37 Va. App. at 405-06, 558 S.E.2d at 570-71 (emphasis added). Furthermore, an expert

opinion is merely speculative if not stated to a reasonable degree of medical probability. Pettus

v. Gottfried, 269 Va. 69, 78, 606 S.E.2d 819, 825 (2005).

Finally, though not binding upon the commission, “we have said in a number of cases

that great weight should be given to the testimony of the attending physician.” Williams v.

Fuqua, 199 Va. 709, 714, 101 S.E.2d 562, 566 (1958).

Simply stated, the commission’s decision must be based upon evidence that is both

credible and competent, and this Court may properly review de novo the credibility and

competence of that evidence.

IV.

UNCONTRADICTED FACTS

The record in this case establishes certain relevant uncontradicted facts. These facts

include the following: (1) The infant was born by cesarian section, and accordingly there was no

“labor,” as applicable under the statute; (2) a sonogram done at 17 weeks showed the infant to be

of normal fetal development and size; (3) after a gestation period of 29 weeks, at birth the infant

weighed 1 pound, 14 ounces, which is the 10th percentile of expected weight for the gestational

period; (4) “The infant was noted to cry at the surgical field upon delivery;”1 (5) at “one minute

of age baby did make some resp[iratory] effort;”2 (6) the infant was intubated within one minute

of birth; (7) the pathology of the placenta, performed the day following the infant’s birth, showed

“infarction . . . increased syncytial knotting . . . consistent with chronic

1
Operative Report of Dr. Namata Choudhary, who performed the cesarian section.
Columbia Reston Hospital.
2
Newborn Resuscitation Record, 09/02/99, Columbia Reston Hospital.
- 22 -
uteroplacental insufficiency;”3 (8) the infant had Apgar scores of 5 at one minute and 7 at fifteen

minutes;4 and (9) blood gas analysis within fifteen minutes of birth showed no evidence of

hypoxemia5 or metabolic acidosis,6 and the same analysis two hours following birth had the

same result.

V.

THE TIMING OF THE DEPRIVATION OF OXYGEN

As has been noted, the commission found, and this Court has affirmed, that the infant

suffered a deprivation of oxygen which resulted in permanent injury. For the Program to rebut

the presumption thus arising, it need not establish precisely when that deprivation occurred;

rather, it must only establish that it did not occur, in this case, during birth or resuscitation. The

timing of this deprivation is accordingly of signal importance.

As quoted above by the majority, with respect to timing, the commission rejected the

opinion of the Program’s experts and accepted that of the claimants: “[O]f the physicians who

have offered expert opinions in this case, we conclude that Drs. Hermansen and Latimer are the

most qualified to evaluate the timing of the injury causing the infant’s cerebral palsy . . . .”

(Emphasis added). None of claimants’ experts were attending physicians. Their opinions, and

those of another claimants’ expert, will be reviewed.

3
Pathology Report, 09/03/99, Columbia Reston Hospital.
4
“The Apgar rating scale ranges from 1 to 10. It provides a numerical expression that
assesses heart rate, respiratory effort, muscle tone, reflex, irritability, and color.” Whitfield, 42
Va. App. at 270 n.1, 590 S.E.2d at 634 n.1 (citations omitted) (emphasis supplied).
5
Hypoxemia is “deficient oxygenation of the blood.” Dorland’s Medical Dictionary 812
(28th ed. 1994).
6
Metabolic acidosis is also called nonrespiratory acidosis. Dorland’s, supra, at 16.

- 23 -
 Dr. Marcus Hermansen’s evidence consisted of a two-page letter dated July 13, 2003. He

had reviewed Dr. Daniel Lefton’s letter. He states, in contradiction to the medical records, the

infant “immediately after . . . birth had no respiratory effort . . . .” He likewise states, again

in contradiction to the medical record: “[The infant] . . . had a metabolic acidemia . . . .”7 He

concurs in Dr. Lefton’s diagnosis of periventricular leukomalicia (PVL).8

Dr. M. Elizabeth Latimer’s evidence consisted of a three-page undated letter. She writes

that the infant “had no respirations at birth . . . .” She states: “there is no evidence of

periventricular leukomalacia [PVL] on the initial [following birth] exam. The absence of the

appearance of . . . [PVL] . . . makes it highly unlikely that the injury occurred significantly prior

to delivery.” (Emphasis added). She makes no mention of the fact that blood gas analysis

showed no metabolic acidosis following birth. At no point does she ever state that it is her

opinion, to a reasonable degree of medical certainty, that PVL was the cause of the infant’s

ultimate disability.

Dr. Daniel Lefton’s evidence consisted of a two-page letter dated July 7, 2003 to counsel

for claimant. He recites he reviewed only the head ultrasound and MRI studies. He states: “You

have advised me that . . . according to the delivery records, at the time of birth [infant] had no

respirations.” (Emphasis added). Thus, he relies upon counsel’s representation, not the medical

records, that the infant was not breathing at birth. He neither reviewed, nor was apparently made

aware of, the medical records of the blood gas analysis which showed no hypoxemia or

7
When Dr. Christmas was asked about Dr. Hermansen’s reference to metabolic
acidemia, he responded “I couldn’t find that in the chart.” Appellees have never presented any
evidence that metabolic acidemia occurred sufficient to cause neurologic injury. Even assuming
there was some evidence of mild metabolic acidosis, the uncontradicted testimony of
Dr. Christmas was that it was “not evidence of metabolic acidosis to a degree that has been
associated with long-term neurologic injury.”
8
PVL is a hypoxic-ischemic injury to the white matter of the brain surrounding the
ventricles.
- 24 -
respiratory acidosis. Nevertheless, he finds, to a reasonable degree of medical certainty, that the

infant suffered from PVL, resulting from a hypoxic-ischemic encephalopathy,9 during birth or

resuscitation, justifying compensation under the Program.

The expert evidence with respect to the timing of the deprivation of oxygen, that is, the

opinions of Drs. Hermansen and Latimer, on which the commission specifically relied is, it is

respectfully submitted, neither credible nor competent, for the following reasons.

Dr. Hermansen bases his opinion on the facts that the infant “had no respiratory effort

. . .” and “had metabolic acidemia . . . .” It is uncontradicted that the attending physician,

Dr. Choudhary, heard the infant “cry . . . upon delivery . . . .” The immediacy of that medical

evidence, by the attending physician, augments its weight. And it is physical evidence. This

Court can take judicial notice that sound may not be produced without an airstream.10 The

uncontradicted medical records show the infant cried, did make respiratory efforts, and did not

have metabolic acidosis. Dr. Hermansen concurs in Dr. Lefton’s diagnosis of PVL, but, as noted

above, Dr. Lefton did not review the medical records, makes no reference to the lack of

metabolic acidosis, and bases his opinion of the representation of claimant’s counsel that the

infant “at the time of birth had no respirations.”

With respect to the report of Dr. Latimer, her opinion is likewise based upon the

purported fact that the infant “had no respirations at birth . . . .” She states that the lack of

9
Hypoxic-ischemic encephalopathy is a degenerative disease of the brain caused by a
lack of oxygen during the fetal stage of development or during labor, birth or resuscitation. See
Dorland’s, supra, at 550.
10
“Thus, our courts will take judicial notice of the operation of the laws of physics and
other natural phenomena, and the effects of such physical laws upon human beings; . . . of
human . . . capabilities . . . .” Charles E. Friend, The Law of Evidence in Virginia § 19-15
(6th ed. 2003); Pearcey v. St. Paul Fire Ins. Co., 163 Va. 928, 936, 177 S.E. 843, 846 (1935);
“sounds are made with air exhaled from the lungs. . . . This airstream is shaped into different
sounds.” “Speech,” Encyclopedia Britannica (2005). In short, judicial notice can be taken that
there cannot be a “cry” without air being exhaled from the lungs.
- 25 -
evidence of PVL on the initial exam “makes it highly unlikely that the injury occurred

significantly prior to birth . . . .” (Emphasis added). She makes no mention of the absence of

metabolic acidosis. She never states her opinion to a reasonable degree of medical certainty.11

“Highly unlikely” is not medical certainty, and the timing question is based upon a deprivation of

oxygen during (or subsequent to) birth, not one that may have occurred in a period of time,

significant or not, prior to birth.

Because Dr. Latimer does not state her opinion “to a reasonable degree of medical

certainty,” her opinion is not competent, and fails “as a matter of law” to support the

commission’s conclusion as to the timing of the deprivation of oxygen. See Coffey, 37 Va. App.

at 402, 558 S.E.2d at 569. The Virginia Supreme Court has previously stated that expert

opinions which are “not stated to a reasonable degree of medical probability” are “speculative in

nature and inadmissible.” Pettus, 269 Va. at 78, 606 S.E.2d at 825. Evidence of such a

11
The majority cites Island Creek Coal Co. v. Breeding, 6 Va. App. 1, 365 S.E.2d 782
(1988), for the proposition that we will not substitute form over substance by requiring a
physician to use the magic words “to a reasonable medical certainty.” Id. at 11-12, 365 S.E.2d at
788. In Island Creek Coal Co., however, the record contained no evidence to contradict the
physician’s opinion. Id. Here, significant credible evidence directly contradicts Dr. Latimer’s
opinions. Therefore, the fact that her testimony is not “to a reasonable degree of medical
certainty” becomes substantive, rather than a mere matter of form.
Additionally, the majority cites Lindenfield v. City of Richmond Sheriff’s Office, 25
Va. App. 775, 492 S.E.2d 506 (1997), and an amendment to Code § 65.2-401 to show that
whether expert medical opinions are “to a reasonable medical certainty” has little to no bearing
on the weight the commission should give such testimony. In fact, since both Lindenfield and
the Code amendment, this Court has continued to rely on the distinction between those opinions
stated “to a reasonable degree of medical certainty” and those not. See, e.g., Coffey, 37
Va. App. at 406, 558 S.E.2d at 571 (holding that the evidence failed to establish a specific,
non-birth-related cause of injury when the doctor’s opinion did not identify one to a reasonable
degree of medical certainty”).
Furthermore, the removal of “to a reasonable medical certainty” from Code § 65.2-401
occurred before the decision in Lindenfield, 1997 Va. Acts, c. 15, and relates strictly to the
burden of proof in “ordinary disease of life coverage” under the Workers’ Compensation regime.
Indeed, the change does not even affect the majority of Workers’ Compensation Commission
cases, let alone the role of medical certainty in opinion testimony generally, or in birth-related
neurological defect cases specifically.
- 26 -
speculative nature, when contradicted by other factual evidence or expert opinions which are

stated to a reasonable degree of medical probability, is not, it is submitted, credible.

Though not specifically relied upon by the commission in its determination of the timing

of the deprivation of oxygen, Dr. James Peter VanDorsten, likewise not an attending physician,

testified before the deputy commissioner on behalf of the claimant. Excerpts from his testimony

include the following:

I construed the record to present a baby that was apniac, that was
not breathing at all.

Q. A large part of your opinions are based upon the belief that this
child had no signs of any respiratory effort. Correct? That is your
belief?

A. That is what the record reflects.

Q. During the prenatal period was there any evidence of any
significant growth restriction prior to delivery?

A. There was not.

Q. . . . You’ve seen the blood gas results, and you know this baby
had oxygen through intubation within a minute of birth. So it’s not
your opinion that this baby was not well oxygenated, is it?

A. Oh, it’s my opinion the baby probably was not well oxygenated
in the early going. I mean it wasn’t breathing at all . . . .

(Emphasis added).12

12
Dr. VanDorsten does speculate at one point as to what a blood gas taken earlier would
have shown:

Q. Do you have an opinion as to what a blood gas taken prior to
fifteen minutes of life would have shown?

A. I think it likely would have been reflective of hypoxemia and
probably respiratory and even perhaps metabolic acidosis.

The deputy commissioner’s opinion also notes the speculative nature of this testimony.
Such speculation has no bearing on a case when actual evidence, taken only minutes later,
contradicts it. This Court has previously declined to presume the results of a test for metabolic
- 27 -
 Finally, in his testimony, Dr. VanDorsten re-affirms an opinion stated in his April 10,

2003 letter: “[I]t is my opinion, to a reasonable degree of medical certainty, that prematurity is

the cause of [the infant’s] cerebral palsy . . . . This child’s cerebral palsy is the direct result of

her unavoidable prematurity, i.e., delivery at 29 weeks gestation.” In this letter Dr. VanDorsten

makes no reference whatsoever to a deprivation of oxygen.

Dr. VanDorsten’s testimony is not credible because it is based upon a fact not supported

by the medical records, including that of the attending physician, that is, the infant made no

respiratory effort and was not breathing at all. With respect to the signal issue of the timing of

the oxygen deprivation, Dr. VanDorsten, as quoted above, says the infant was probably not well

oxygenated. For this doctor to conclude that an infant with normal size and development at 17

weeks, and born at 29 weeks weighing less than 10% of normal weight, showed no signs of

prenatal growth restriction, is incredible.

With the above summary of the claimant’s evidence as to timing, we turn to that relied

upon by the Program. As noted above in Part II of this dissent, to rebut the Code § 38.2-5008

presumption, the Program must first establish that the infant’s deprivation of oxygen did not

occur, as here relevant, during birth or immediate attempts to resuscitate.

Pursuant to Code § 38.2-5008, the infant’s claim was “reviewed by a panel of three

qualified and impartial physicians.” With respect to the timing of the deprivation of oxygen, in a

letter dated June 9, 2003, the independent panel concluded: “No evidence of such deprivation of

oxygen during the required perinatal period is contained in these records.”13

acidosis that was not performed, absent negligent or intentional failure by the medical
professionals present to perform such a test. Wolfe, 40 Va. App. at 585, 580 S.E.2d at 477.
13
It is noted that “the commission is not bound by the opinion of an independent expert it
selects . . . .” Island Creek Coal Co. v. Honaker, 9 Va. App. 336, 339, 388 S.E.2d 271, 272-73
(1990).
- 28 -
 Testifying on behalf of the Program was Dr. James Christmas.14 His testimony,

succinctly stated, establishes that deprivation of oxygen necessarily causes measurable metabolic

acidosis, and, of critical import, evidence of that acidosis will not be dissipated for hours

following the deprivation. As Dr. Christmas explained:

Well, when we breathe, when our cells breathe, when we at
the cellular level do the things that we need to do to
survive, cells burn glucose, and they burn glucose really
efficiently. They burn it to carbon dioxide, which we then
exhale and breathe off. When we are forced because of a
lack of oxygen, we ourselves still need to make energy, and
if they don’t have oxygen available to them, they burn
acids to make energy, and those---the production of energy
from acids is incredibly inefficient and it results in the
byproduct or the end product of that process is very large
fixed acids that are 8, 6, and 12 carbon acid molecules, and
those molecules don’t cross the pulmonary capillaries, and
so they build up in the blood stream, and ultimately they
have to be metabolized by the liver and the kidneys before
they can be cleared. So whether you’re a newborn or an
infant or a fetus or an adult, if you develop a large
metabolic acidosis from decreased---from insufficient
oxygen, then that metabolic acidosis will take several to
many hours to completely clear because those acids have to
be metabolized back down created ultimately to carbon
dioxide and then cleared.

In accordance with the finding of the medical panel, Dr. Christmas testified that the infant

“had blood gas that demonstrated normal oxygenation . . . and no evidence of a recent metabolic

acidosis, and when I say recent, I would say within several hours.” Likewise, he concluded: “In

looking at the medical record there’s no evidence of any sustained oxygen deprivation . . . .

There is zero evidence of oxygen deprivation.”

Also introduced into evidence before the deputy commissioner was a Report of The

American College of Obstetricians and Gynecologists and the American Academy of Pediatrics

14
Dr. Christmas’s opinion was likewise stated in a July 1, 2003 letter introduced into
evidence: “Initial blood gas evaluation within 15 minutes of delivery demonstrated no evidence
of hypoxemia or metabolic acidosis.”
- 29 -
entitled Neonatal Encephalopathy and Cerebral Palsy (“the Report”). With respect to neonatal

encephalopathy, the Report states: “The criteria to define an acute intrapartum15 event sufficient

to cause cerebral palsy . . . [includes the following] . . . Essential criteria (must meet all four).

1. Evidence of a metabolic acidosis in fetal umbilical cord blood obtained at delivery . . . .”16

(Footnotes added).

Finally, a finding of metabolic acidosis has been a pinion fact upon which this Court has

relied in determining the timing of deprivation of oxygen. “At two minutes of life [infant’s]

arterial chord blood gases were critically low. They remained low for almost two hours after his

birth.” Coffey, 37 Va. App. at 394, 558 S.E.2d at 565. “[Infant’s] arterial blood gases were not

satisfactory.” Va. Birth-Related Neurological Injury Comp. Program v. Young, 34 Va. App.

306, 313, 541 S.E.2d 298, 302 (2001); see also Whitfield, 42 Va. App. 264, 590 S.E.2d 631;

Wolfe, 40 Va. App. at 575, 580 S.E.2d at 472.17

From the foregoing, it is respectfully submitted that the Program has met its burden of

proof to rebut the presumption that the deprivation of oxygen occurred during the birth or

immediate attempts to resuscitate.

15
Intrapartum means: “Occurring during childbirth, or during delivery.” Dorland’s,
supra, at 854.
16
This Court has relied upon the standards of the American College of Obstetricians and
Gynecologists in a prior opinion. See Wolfe, 40 Va. App. at 585, 580 S.E.2d at 477.
17
It should also be noted that this Court has consistently relied upon Apgar scores for
timing determinations in birth-related cases. As set forth in footnote 4 of this dissent, an Apgar
score includes an evaluation of respiratory effort. “His Apgar scores were 0 at one minute, 1 at
five minutes, and 5 at ten minutes.” Young, 34 Va. App. at 313, 541 S.E.2d at 302; “At one
minute of life [infant’s] APGAR score was two out of a possible ten.” Coffey, 37 Va. App. at
394, 558 S.E.2d at 565; “received an APGAR score of 9 at both one and five minutes after
birth.” Kidder v. Va. Neuro. Birth-Related Injury Comp. Program, 37 Va. App. 764, 767, 560
S.E.2d 907, 908 (2002) (affirming the commission’s denial of benefits); “His Apgar scores were
1 at one minute, 0 at 5 minutes, and 0 at 10 minutes.” Whitfield, 42 Va. App. at 269-70, 590
S.E.2d at 634. It is uncontradicted that the infant involved here had Apgar scores of 5 at one
minute and 7 at fifteen minutes.
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 VI.

A SPECIFIC, NON-BIRTH-RELATED CAUSE

As noted above in Part II of this dissent, the Program bears a second evidentiary burden

to rebut the Code § 38.2-5008 presumption, that of establishing a specific, non-birth-related

cause of the infant’s injury.

The evidenced adduced by the Program supports the deputy commissioner’s conclusion

that the infant did suffer a deprivation of oxygen causing the infant’s injury, probably from PVL,

thus giving rise to the presumption. It was the Program’s position, and one with which the

deputy commissioner agreed, that the cause of that deprivation was uteroplacental insufficiency.

As Dr. Christmas explained:

Q. So then have you formed an opinion based upon a
reasonable degree of medical certainty that the actual cause
of [infant’s] condition today would have been utero . . .

A. Uteroplacental insuffiency. . . . I actually suspect that
there was a specific ischemic event at some point or a
hypoprofusion or a hypoxemic event. . . . That would be
very common in a growth retarded fetus because a growth
retarded fetus doesn’t have any other reserves that a term
fetus has. So if a baby’s oxygen requirements---a baby’s
oxygen requirements are here and a normal baby has oxygen
levels, a normal fetus has oxygen levels up here, that’s no
big deal. Little things happen in utero all the time and it
never gets down to a threshold level where it’s going to
cause any damage. Well, the growth-retarded fetus by very
definition is operating right at its threshold. So the little
things that happen to a baby in utero all of a sudden become
really important events. The periods of time when a fetus
rolls over and compresses its umbilical cord for three
minutes. For the normal term baby, I mean the normal
appropriately grown baby that’s got a huge placental
reserve, that’s no big deal. To the fetus that’s operating
right on the edge, that’s a huge deal. So if you were to say,
well, you think ischemia could be part of the picture, well,
yeah. I mean because that’s all part of the whole sort of
process of uteroplacental insufficiency. But there’s every
evidence that that ended at delivery. It didn’t start at

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 delivery. There’s every evidence that it probably ended
many hours before delivery as far as the acute event.

Dr. Christmas continued:

I think that prematurity is the single leading risk factor for
periventricular leukomalacia [(PVL)] in the general
population as well as in any specific fetus. A preterm
delivery complicated by a small for gestational age fetus is
at a significantly higher risk of periventricular
leukomalacia than is an appropriately grown preterm fetus.

As noted above, claimant’s expert, Dr.VanDorsten, in his opinion letter of April 10,

2003, does not mention a deprivation of oxygen, but writes, in accordance with Dr. Christmas’s

view: “[I]t is my opinion, to a reasonable degree of medical certainty, that prematurity is the

cause of [the infant’s] cerebral palsy.”

It is uncontradicted that the infant had normal development at 17 weeks gestation and at

birth weighed in the 10th percentile of an infant born at 29 weeks. It is clear that an event or

condition adverse to the fetus occurred in that time period. It is uncontradicted that the

pathology of the placenta showed “infarction . . . increased syncytial knotting . . . consistent with

chronic uteroplacental insufficiency.” This Court has specifically noted the significance of

evidence of uteroplacental insufficiency in birth-related cases. “The records also revealed no

evidence of utero-placental insufficiency or cord compression.” Wolfe, 40 Va. App. at 571, 580

S.E.2d at 470.

Assuming the infant did have PVL, the rational conclusion, based upon the credible and

competent evidence, is that the condition was caused by uteroplacental insufficiency, not by a

deprivation of oxygen during birth or immediate attempts to resuscitate. Accordingly, it is

submitted, the Program has established a non-birth-related cause of the injury.

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 VII.

CONCLUSION

For the above reasons, I believe the Program has met the burden of meeting both prongs

necessary to rebut the presumption arising from Code § 38.2-5008. I would reverse the

commission and uphold the opinion of the deputy commissioner.

In Meador v. Va. Neuro. Birth-Related Injury and Comp. Program, 44 Va. App. 149, 604

S.E.2d 88 (2004), this Court affirmed the commission’s decision that the Act did not apply to a

birth at home. In so doing, we noted:

The Act cannot be applied with any interpretative preset in
favor of coverage, for to do so would undermine two
important features of the Act. First, the statute’s “finely
engineered quid pro quo . . . .” Second, when statutes
displace common law principles governing tort liability, the
statutes should be “strictly construed” and not “be enlarged
in their operation by construction beyond their express
terms.” Jan Paul Fruiterman, M.D. & Assocs., P.C. v.
Waziri, 259 Va. 540, 544, 525 S.E.2d 552, 554 (2000)
(quoting Schwartz v. Brownlee, 253 Va. 159, 166, 482
S.E.2d 827, 831 (1997)).

44 Va. App. at 152-53, 604 S.E.2d at 90 (citing Whitfield, 42 Va. App. at 271, 590 S.E.2d at

635).

One cannot but have empathy for this infant, and this infant’s parents. However, it is

respectfully submitted that the commission’s decision in this case does not comport with the

strictures of the Act, as set forth in the same by the legislature, and with the decisions of this

Court.

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