dissenting.
I respectfully dissent from the majority opinion. Although the evidence fully establishes that the infant suffered oxygen deprivation and injury, it fails to establish that the injury was caused by oxygen deprivation occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period. Thus, the evidence presented by the Program, all of which established that the injury was caused by conditions occurring prenatally, remained uncontroverted and was sufficient to rebut the statutory presumption arising under Code § 38.2-5008(A)(1).
The commission found that the infant “suffered from oxygen deprivation during the birth process [because] he was not breathing when he was born, the umbilical cord was wrapped around his neck, and he required seven minutes of CPR to resuscitate him.” In addition, the commission noted that several physicians attributed the infant’s neurological disabilities to the asphyxia the infant suffered. However, there is no finding that the asphyxia causing the injury occurred during labor, delivery or in the immediate post-delivery time frame. Nor is there evidence to support such a finding.
While there is little dispute that the infant’s problems are attributable at least in part to asphyxia at birth, asphyxia alone is insufficient to support an award under Code §§ 38.2-5001, -5008, -5009. In addition to the express words used in the statute which limit compensation to neonates who suffer an “injury to the brain or spinal cord ... caused by the deprivation of oxygen or mechanical injury occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period,” the Virginia legislature specifically excluded neonates who suffer “disability ... caused by genetic or congenital abnormality, degenerative neurological disease, or maternal substance abuse” from the compensation scheme. Code § 38.2-5001 (emphasis added); see also Code § 38.2-5014. Thus, in the absence of evidence showing that the asphyxia occurred in the course of “labor, delivery, or resusci*320tation in the immediate post-delivery period,” and that it caused the resultant injury, no award may be made.
In proving a compensable injury in this case, the claimant relied solely on the statutory presumption which arises under Code § 38.2-5008(A)(l). The presumption arises upon proof of brain injury caused by oxygen deprivation; proof that the oxygen deprivation caused the injury is not necessary to give rise to the presumption. Id.
As noted by the majority opinion, whether the Program rebutted the presumption is a question to be determined by the commission as fact finder after weighing the evidence produced by both parties. Although claimant presented evidence of the two foregoing elements, she presented no evidence which established that the oxygen deprivation which occurred in the course of labor, delivery or resuscitation in the immediate post-delivery period caused the infant’s injury.
At best, the claimant’s medical evidence cited by the commission in support of its conclusion that the Program failed to rebut the statutory presumption is limited to a description of the infant’s condition at the time of delivery and in the immediate post-delivery period. The evidence clearly showed that the infant was oxygen deprived, but nothing more.
In reaching its decision, the commission specifically relied on the records provided by the infant’s treating physicians, Drs. Brennan, Bryant and Wells. The medical documents relate the child’s medical history, but contain no opinion, either express or implied, with respect to whether asphyxia occurring during labor, delivery, or post-delivery in the course of resuscitation caused the disabilities described. A physician’s notation of the child’s condition at birth, without more, cannot provide the nexus required by statute, which calls for evidence relating the neurological disability to an event occurring during labor, delivery or resuscitation post-delivery.
Dr. Brennan, who conducted a neurological exam of the infant at approximately four months of age, simply noted the infant’s medical history at birth, and the fact that the infant was “at risk for developmental delay in light of extreme *321prematurity, low birth weight, initial asphyxia, and severe respiratory distress with subsequent bronchopulmonary dysplasia.” She does not state expressly or implicitly that the developmental delay which ultimately occurred was caused by “the deprivation of oxygen ... occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period.” Indeed, she identified multiple factors which might cause the developmental delay in question, and the developmental delay she references at the time of her note itself remained only a possibility. Although after a follow-up neurological exam Dr. Brennan states in her medical report that she discussed with the infant’s parents “the possibility of ... some significant brain injury related to his perinatal problems,” the use of the term “perinatal” does not indicate that the infant’s injury was caused at birth. The term “perinatal” refers to “the period beginning after the 28th week of pregnancy through 28 days following birth.” Taber’s Cyclopedic Medical Dictionary 1282 (Clayton L. Thomas, M.D. ed., 15th ed.1985). Thus, the term “perinatal” refers to a much broader period of time than that required by the statute and, in fact, encompasses a period of time that is not covered by the statute. Code §§ 38.2-5001, 5014 (problems occurring before birth are not compensable under the statute). Finally, I note that Dr. Brennan’s opinion, couched as it is in terms of a “possibility” is not relevant evidence of the cause of the infant’s injury. “It is well established that ‘[a] medical opinion based on a “possibility” is irrelevant [and] purely speculative.’ ” Circuit City Stores, Inc. v. Scotece, 28 Va.App. 383, 388, 504 S.E.2d 881, 884 (1998) (quoting Spruill v. Commonwealth, 221 Va. 475, 479, 271 S.E.2d 419, 421 (1980)).
Dr. Bryant, who examined the infant upon a hospital admission for an apneic episode, also only noted the infant’s “medical history secondary to a twenty-eight week gestation, asphyxia and hypoplastic lungs.” He does not state that the infant’s injury was caused by oxygen deprivation occurring in the course of labor, delivery or post-delivery resuscitation. Furthermore, neither Dr. Bryant nor Dr. Brennan states that the resulting injury was caused by asphyxia resulting from the *322umbilical cord wrapped around the infant’s neck, a fact relied upon by the commission in its findings, and neither stated that the neurological injury was caused by the post-delivery resuscitation efforts, an alternative basis for awarding compensation under the statute.
The only evidence in the case which arguably links the asphyxia and resulting injury to the period from labor to the immediate post-delivery time frame is that of Dr. Wells, a treating physician who, eight years after the infant’s birth, described the child’s disability as “Cerebral Palsy (birth injury).” However, nothing in the record supports a conclusion that Dr. Wells used the term “birth injury” as a surrogate for an opinion that the injury in question was caused by oxygen deprivation occurring in the course of labor, delivery or during immediate post-delivery resuscitation period.
In short, I find no evidence in the record which supports the commission’s findings of fact that the injury suffered by the infant was caused by “oxygen deprivation occurring in the course of labor, delivery or resuscitation in the immediate post-delivery period,” as required by Code §§ 38.2-5001, 5008, 5009. The only evidence relating to an explanation of the issue of how the injury occurred was presented by the Program. Its evidence showed that the injuries in question occurred in útero before labor commenced.4 The commission’s conclusion that the Program failed to carry its burden of proof and persuasion to rebut the statutory presumption is thus not sustained by the record. For these reasons, I would reverse *323the commission’s decision. Morris v. Badger Powhatan/Figgie International, Inc., 3 Va.App. 276, 279, 348 S.E.2d 876, 877 (1986) (“[T]he Commission’s findings of fact are not binding upon us when there is no credible evidence to support them.”).
. The medical evidence presented by the Program supporting that conclusion included the presence of oligohydramniosin the mother which is defined as a condition in which there is less than the normal amount of amniotic fluid around the fetus and which may result, inter alia, in underdevelopment of the infant’s lungs. Dorland’s Illustrated Medical Dictionary 1174 (28th ed.1994); 4 Attorneys' Dictionary of Medicine and Word Finder 0-40 (J.E. Schmidt, M.D.ed., 1999). The Program’s evidence also established that the mother suffered a complete placenta previa, and chorioamnionitis, which is an inflammation of the membranes which cover the fetus, Taber’s at 324, and that the child was premature. The absence of intraventricular hemorrhage at birth also indicated that no asphyxic injury occurred during labor, delivery, or in the immediate post-delivery period.