Kidder v. Virginia Birth-Related Neurological Injury Compensation Program

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Frank and Humphreys
Argued at Chesapeake, Virginia

STURGIS L. KIDDER
OPINION BY
v. Record No. 2092-01-1 JUDGE LARRY G. ELDER
MARCH 26, 2002
VIRGINIA BIRTH-RELATED NEUROLOGICAL
INJURY COMPENSATION PROGRAM

FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

Cheryl S. Thomas for appellant.

John J. Beall, Jr., Senior Assistant Attorney
General (Randolph A. Beales, Attorney
General; Frank S. Ferguson, Chief Deputy
Attorney General, on brief), for appellee.

Sturgis Kidder, who sues as father and next friend of

Andrew Patrick Kidder (Andrew or claimant), an infant, appeals a

decision of the Workers' Compensation Commission (the

commission) denying him benefits under the Virginia

Birth-Related Neurological Injury Compensation Act (the Act),

Code §§ 38.2-5000 to 38.2-5021. On appeal, claimant contends

that the time limit for the filing of a response to his petition

by the Virginia Birth-Related Neurological Injury Compensation

Program (the program) was jurisdictional and, therefore, that

the commission's consideration of the program's late response,

amended late response and accompanying expert medical opinions

was erroneous. Claimant also contends that even if the
commission had the authority to permit these late filings, the

deputy commissioner exceeded her authority by permitting these

late filings without an express delegation of authority from the

commission. Lastly, claimant contends the commission

erroneously concluded he failed to prove his injuries were

caused by a deprivation of oxygen, which was necessary to

entitle him to the Code § 38.2-5008(A) presumption and further

erred in finding, even if he did prove such a deprivation, that

the program rebutted the presumption.

We hold the deputy commissioner and commission did not

abuse their discretion in accepting and considering the

program's late response and medical evidence. We also hold

credible evidence supports the commission's conclusion that

claimant failed to prove an injury caused by oxygen deprivation.

Thus, we affirm the commission's denial of benefits.

I.

BACKGROUND

On February 28, 1990, Dr. Morris M. Elstein delivered

Andrew by emergency cesarean section at Virginia Beach General

Hospital when Andrew's mother's uterus ruptured during labor.

Although a fetal heart monitor was used to follow Andrew's

condition during his mother's labor, it was disconnected to

permit the cesarean section. Andrew was delivered about twenty

minutes later. Although the rupture of Andrew's mother's uterus

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caused her to hemorrhage prior to Andrew's delivery, Dr. Elstein

found no evidence of placental abruption, and Andrew received an

APGAR score of 9 at both one and five minutes after birth. He

received the highest available score, a two, for each of the

categories of heart rate, respiratory effort, muscle tone, and

reflex irritability. He received a score of one in the color

category, and the nursery notes indicate he was "pale but

otherwise in satis[factory] condition." No abnormalities other

than mild jaundice were observed during his stay, and he was

discharged when he was four days old.

When Andrew was approximately ten days old, he was

readmitted to the hospital due to dehydration. On March 11,

1990, Andrew exhibited a bulging anterior fontanel and

experienced seizures. An MRI and various other tests revealed

venous sinus thrombosis with resultant cortical thrombosis and

deep left thalamic hemorrhage. The parties agree that Andrew is

motorically, cognitively and developmentally disabled as a

result of the thrombosis but disagree as to the cause of the

thrombosis.

At the time of Andrew's birth, the Act required that both

the delivering physician and the hospital in which the delivery

occurred must "participate" in the Program, as that term is

defined in Code § 38.2-5001, in order for a claimant otherwise

meeting the Act's criteria to receive assistance from the

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Virginia Birth-Related Neurological Injury Compensation Fund

(the fund). It is undisputed that, at the time of Andrew's

birth, Virginia Beach General Hospital was a participating

hospital but Dr. Elstein was not a participating physician.

On January 7, 2000, Andrew's father filed with the

commission a petition for benefits under the Act. The Clerk of

the Commission issued a "Notice of Claim" on January 10, 2000,

directing that the claim be served on the program by hand.

By letter dated February 17, 2000, the program, by counsel,

filed a response to the petition. Counsel admitted that, under

Code § 38.2-5004(D), the program's response "arguably" was due

February 9, 2000. Counsel represented that he had not received

the file from the program until January 18, 2000 and that

inclement weather had caused multiple office closures, and "[t]o

the extent necessary, [he] ask[ed] leave to file this Response

to Petition." Also, he moved to dismiss the petition on the

ground that claimant was not entitled to benefits because the

version of Code §§ 38.2-5008 and -5009 in effect when Andrew was

born required that both the hospital and the delivering

physician be "participating" in the program and Andrew's

physician was not, in fact, participating. Although a 1990

statutory change permitted an award of benefits if either the

hospital or the physician was participating, counsel for the

program asserted that this change applied only to births

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occurring on or after its effective date of July 1, 1990, and,

thus, did not apply to claimant's claim. As a result, he

contended, claimant could not have been prejudiced by the

program's late response.

Claimant responded that the program's response was

time-barred. In the alternative, claimant argued that excluding

him from the coverage of the Act based solely on the date of his

birth would deprive him of due process and equal protection.

By letter dated March 24, 2000, Deputy Commissioner

Colville, acting for "the Commission," "grant[ed] permission to

the Program to file its response more than thirty days beyond

the filing [of the original claim]." She asked the parties to

advise her within ten days whether the issue required testimony

or could be resolved by submitting the case "on the record." By

letter of March 27, 2000, counsel for the program notified

Commissioner Colville that the General Assembly was considering

a bill which would make retroactive the 1990 statutory amendment

permitting recovery of benefits by a claimant when either the

hospital or the delivering physician participated in the program

rather than requiring that both be participants. The program

indicated it did not oppose the statutory change and that if the

change passed, the program "will seek leave to respond to the

merits" of claimant's petition.

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 By letter dated April 26, 2000, the program notified

Commissioner Colville that the amendment had passed and was to

take effect July 1, 2000. The program conceded that dismissal

of claimant's petition on procedural grounds no longer was

appropriate. Noting it had not obtained an expert opinion

before it filed its initial response, the program requested

additional time to file an amended response to the petition "on

the merits medically." By letter of May 4, 2000, the

commissioner gave the program until June 5, 2000, to file its

response and indicated that the case would not be set for

hearing prior to July 1, 2000, the effective date of the

legislation.

On June 5, 2000, the program filed an amended response,

including the medical opinion of Donald A. Taylor, a pediatric

neurologist. Claimant contended the program was barred from

presenting evidence on the merits because it failed in its

initial response to reserve the right to supplement or seek

expert medical evidence, and claimant moved to strike the

program's amended response. The deputy commissioner denied the

motion.

Both claimant and the program submitted additional medical

evidence, which included clarifications of medical opinions

already given. Dr. Edward H. Karotkin reviewed the medical

records on Andrew's behalf, and Drs. Kathryn Kerkering and

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Lawrence D. Morton reviewed the records on the program's behalf.

The record also included the opinion from a panel comprising

Drs. William N.P. Herbert, James E. Ferguson and Elizabeth

Mandell pursuant to Code § 38.2-5008(B).

Following a hearing, Deputy Commissioner Colville issued an

opinion denying benefits. She concluded claimant was not

entitled to the Code § 38.2-5008(A) presumption because "the

weight of the evidence established that the infant's condition

was not caused by oxygen deprivation." In the alternative, she

concluded that even if the presumption did apply, "the weight of

the medical evidence rebuts the presumption [by establishing]

that dehydration, a known cause for the thrombosis sustained by

the infant, was the cause of his condition."

Claimant filed a request for review, arguing that the

program's response to its original petition was time-barred

because the response was not filed within thirty days of service

of the petition and the program did not seek leave to file a

late response before the thirty days had expired. Claimant also

argued that the program's response and all medical evidence

submitted thereafter was inadmissible because the program failed

to reserve the right to supplement its initial response or to

seek expert review of the medical records, stating instead that

"the records speak for themselves." Next, claimant argued the

commissioner erred in concluding that the injury was caused by

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dehydration rather than oxygen deprivation during delivery.

Finally, claimant argued that the program failed to present

sufficient evidence to overcome the rebuttable presumption of

Code § 38.2-5008(A).

With one commissioner dissenting, the commission affirmed

the deputy's denial of benefits. Claimant noted this appeal.

II.

ANALYSIS

A.

PROGRAM'S LATE FILING OF RESPONSE TO PETITION
AND MEDICAL EVIDENCE

The Act authorizes the commission "to hear and pass upon

all claims filed pursuant to this [Act]" and to "exercise the

power and authority granted to [the commission] in Chapter 2 of

Title 65.2 [the Workers' Compensation Act] as necessary to carry

out the purposes of this chapter." Code § 38.2-5003.

Upon receipt of [a] petition [for benefits
under the Act,] the Commission shall
immediately serve the Program by service
upon the [designated] agent . . . by
registered or certified mail . . . . The
Program shall have thirty days from the date
of service in which to file a response to
the petition, and to submit relevant written
information relating to the issue of whether
the injury alleged is a birth-related
neurological injury, within the meaning of
this chapter.

Code § 38.2-5004(A)(2), (D).

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 Claimant's petition was served on the program on January

10, 2000, making the program's response due on or before

February 9, 2000. Although the program did not file its

response until February 17, 2000, it acknowledged the lateness

of its filing and sought the commission's permission to file the

response. We agree with the commission's holding that it had

the authority to permit filing of the late response under Rule

1:9 of the Rules of the Supreme Court, which provides as

follows: "The time allowed for filing pleadings may be extended

by the court in its discretion and such extension may be granted

although the time fixed already has expired . . . ." 1 Although

the Rules of the Supreme Court do not expressly apply to the

commission, we previously have applied them in interpreting the

powers available to the commission under Chapter 2 of the

Workers' Compensation Act. See Jeff Coal, Inc. v. Phillips, 16

Va. App. 271, 277-78, 430 S.E.2d 712, 716-17 (1993) (holding

that this Court, in analyzing power of commission to punish for

contempt or disobedience of its orders as authorized by

1
The commission cited Rule 1 rather than Rule 1:9, but its
recitation of the content of the rule makes clear that it
referred to Rule 1:9.
The commission's statement that it "must consider the legal
and factual questions presented and issue a determination"
"[e]ven if [claimant] is correct and the Deputy Commissioner
erred by allowing the Response and Amended Response," was an
alternative holding to be followed only if we were to conclude
that the commission lacked the authority to extend the program's
time for filing its response.

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§ 65.2-202(A), which grants to commission same authority given

to courts and judges by specified code sections, may "look to

the authority [Rule 4:12] vest[s] in the courts and judges to

punish for disobedience of their orders").

Our examination of the statutory scheme also provides no

indication the legislature intended that the program's failure

strictly to comply with the thirty-day response period set out

in Code § 38.2-5003(D) would require exclusion of the program's

response or medical evidence. Although that code section

provides that "[t]he Program shall have thirty days" to file its

response, the Supreme Court has held "repeated[ly] . . . that

the use of 'shall,' in a statute requiring action by a public

official, is directory and not mandatory unless the statute

manifests a contrary intent." Jamborsky v. Baskins, 247 Va.

506, 511, 442 S.E.2d 636, 638 (1994). In the absence of

evidence that the legislature had a contrary intent, timely

filing is not jurisdictional.

These same principles apply here because the program is (1)

created by state statute, Code § 38.2-5002(A); (2) funded by a

public trust comprising voluntary and involuntary assessments

and reviewed for solvency by the State Corporation Commission,

Code §§ 38.2-5015, -5020, -5021; and (3) administered by a board

of directors appointed by the Governor, Code §§ 38.2-5015,

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-5016. Thus, actions of the program are actions of a public

official.

Further, Code § 38.2-5003(D) is silent as to the

consequences of the program's failure to file a response within

thirty days. In contrast, Code § 38.2-5013 provides, with

certain exceptions not applicable here, that "[a]ny claim under

this chapter that is filed more than ten years after the birth

of an infant alleged to have a birth-related neurological injury

is barred . . . ." Thus, the legislature clearly demonstrated

its ability to prevent the commission from considering certain

late filings and chose not to impose such a bar in the case of a

late filing from the program. Also, as the commission found,

the statutory scheme makes clear that even if the program failed

to file any response at all, the commission would remain charged

with the duty of examining the evidence before it, including the

opinion of the panel of physicians required under Code

§ 38.2-5008(B). 2

2
Code § 38.2-5008(B) provides as follows:

The deans of the medical schools of the
Commonwealth shall develop a plan whereby
each claim filed with the Commission is
reviewed by a panel of three qualified and
impartial physicians. This panel shall file
its report and recommendations as to whether
the injury alleged is a birth-related
neurological injury as defined [by the Act]
with the Commission at least ten days prior
to the date set for hearing . . . . The

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 The Supreme Court has recognized that the failure of a

public official to act in a timely fashion, although not

jurisdictional, may nevertheless require corrective action, such

as exclusion of a document or dismissal of an action, if the

party complaining of the untimeliness suffered prejudice

amounting to a due process violation. See, e.g., Tran v. Bd. of

Zoning Appeals, 260 Va. 654, 657-58, 536 S.E.2d 913, 915-16

(2000). Claimant contends that allowing the program's late

filing prejudiced him, but he does not explain in what way he

was prejudiced. The only prejudice we ascertain comes from the

six-month delay in resolving claimant's entitlement to benefits

from the fund. However, claimant's father waited until claimant

was almost ten years old to file the petition for benefits.

Further, the delay in the commission's consideration of the

petition on the merits did not result from the absence of the

program's medical evidence; rather, it resulted from the fact

that the Act as it existed when the petition originally was

filed did not entitle claimant to benefits because he did not

meet the Act's jurisdictional requirements. By the time the

amendments to the Act took effect, the program had submitted its

primary medical evidence. Thus, we perceive no prejudice to

claimant from the late filing of the program's medical evidence,

Commission must consider, but shall not be
bound by, the recommendation of the panel.

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and we hold that the commission's allowing the late filing did

not violate due process.

Citing Code § 65.2-203, claimant nevertheless contends the

deputy commissioner lacked authority to grant the requested

extension absent an order from the commission expressly

delegating such authority. We disagree. Code § 65.2-203(A)

provides that

Deputy commissioners shall have the power to
subpoena witnesses, administer oaths, take
testimony and hear the parties at issue and
their representatives and witnesses, decide
the issues in a summary manner, and make an
award carrying out the decision. Deputies
may exercise other powers and perform any
duties of the Commission delegated to them
by the Commission.

That code section provides deputy commissioners with the

authority to try cases within the jurisdiction of the commission

and to resolve, in the first instance, all disputes between the

parties related to those cases. Implicit in the deputies'

specifically enumerated duties, therefore, is the power to

extend nonjurisdictional filing deadlines and to grant

continuances. Accordingly, the deputy commissioner had the

authority to allow the program's late-filed response.

Even if we were to hold that Code § 65.2-203 required a

delegation of authority from the commission before the deputy

had authority to accept the late filing, we would not reach a

different result. Code § 65.2-203 does not require that a

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delegation of duties to a deputy commissioner be express or

direct. 3 The commission, by practice, has approved the

delegation to its deputy commissioners of duties not expressly

authorized by statute, rule or prior order of the commission.

See, e.g., Tyler v. John J. McMullen & Assocs., No. 194-42-95,

2000 WL 1518045 (Va. Workers' Comp. Comm'n July 6, 2000)

(implicitly approving deputy's authority to award attorney's

fees to claimant's former attorney); Brummell v. Chase City Pub.

Works, No. 179-66-43, 1998 WL 1003871 (Va. Workers' Comp. Comm'n

Aug. 31, 1998) (implicitly approving chief deputy commissioner's

authority to strike response filed by employer after claimant

filed request for review of deputy commissioner's decision and

claimant and employer had each submitted written statements

under Commission Rule 3.2); Johnson v. Seasons Greetings, Inc.,

No. 143-33-14, 1996 WL 1075288 (Va. Workers' Comp. Comm'n Mar.

4, 1996) (implicitly approving deputy's authority to approve

compromise settlement). An order of the commission expressly

3
We are not bound by prior unpublished decisions of this
Court. See Fairfax County Sch. Bd. v. Rose, 29 Va. App. 32, 39
n.3, 509 S.E.2d 525, 528 n.3 (1999) (en banc). Further, the
unpublished decision claimant cites, Smith v. Weber, No.
0873-85, 1986 WL 403945 (Va. Ct. App. Nov. 5, 1986), held only
that Code § 65.1-12, the predecessor to Code § 65.2-203,
permitted the commission to delegate duties to the deputy
commissioners. Although the delegation which occurred in Smith
involved an express statement in an opinion of the commission,
we did not hold that Code § 65.1-12 required that any delegation
must be express.

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delegating such authority prior to a deputy's exercise of that

authority is not required.

Claimant nevertheless contends that the program's failure

to file any medical evidence with its response and its failure

expressly to reserve the right to do so at a later time

prevented the commission from considering the program's

subsequently filed medical evidence. Again, we disagree.

Rule 1:8 provides that pleadings may be amended by leave of

court and that "[l]eave to amend shall be liberally granted in

furtherance of the ends of justice." The Supreme Court has held

that a court abuses its discretion in refusing to allow an

amendment where nothing in the record suggests the amendment

will result in prejudice to the opposing party. See Kole v.

City of Chesapeake, 247 Va. 51, 57, 439 S.E.2d 405, 409 (1994).

Claimant cites no authority which would require the program to

reserve the right to supplement its petition, and we see no

benefit to be derived from applying such a rule here.

The program's initial response requested a dismissal of

claimant's petition on jurisdictional grounds, grounds which did

not require medical evidence to support them. The program

alleged that claimant was not eligible for benefits from the

fund because the physician who delivered him was not a physician

"participating" in the program on February 28, 1990, the date

claimant was born. Claimant did not dispute this fact and

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opposed the motion only on the ground that dismissal of his

petition for this reason would violate due process and equal

protection.

The program then notified claimant and the commission that

the legislature was considering a statutory amendment, supported

by the program, which would entitle claimant--and any other

children born before July 1, 1990, who would otherwise be

eligible--to seek benefits from the fund even though both the

delivering doctor and delivering hospital were not participating

members of the program at the time of the delivery. Not until

this amendment to the statute was passed did claimant have a

basis for seeking benefits from the fund. For the reasons

already discussed, we conclude claimant suffered no prejudice

from this delayed filing, and we hold that the commission's

allowing the late filing was not an abuse of discretion. 4

B.

PROOF OF INJURY CAUSED BY OXYGEN DEPRIVATION

Claimant contends the commission erroneously concluded he

was not entitled to the Code § 38.2-5008 presumption because he

failed to prove his injuries resulted from oxygen deprivation.

We hold the record contained credible evidence to support the

4
The commission ruled for other reasons that it would not
consider Dr. Duncan C. MacIvor's testimony or written opinion.
Neither party appealed this decision. Thus, we also do not
consider Dr. MacIvor's testimony or written opinion.

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commission's finding that claimant's injury resulted from venous

sinus thrombosis which was caused by dehydration occurring after

his release from the hospital rather than by oxygen deprivation

or asphyxia occurring when his mother's uterus ruptured during

delivery.

The Act establishes a framework to provide monetary relief

to claimants who have sustained a "[b]irth-related neurological

injury," which is defined as

injury to the brain or spinal cord of an
infant caused by the deprivation of oxygen
or mechanical injury occurring in the course
of labor, delivery or resuscitation in the
immediate post-delivery period in a hospital
which renders the infant permanently
motorically disabled and (i) developmentally
disabled or (ii) for infants sufficiently
developed to be cognitively evaluated,
cognitively disabled . . . [and which]
disability cause[s] the infant to be
permanently in need of assistance in all
activities of daily living.

Code § 38.2-5001. The legislature, recognizing the difficulty

in proving when such an injury was sustained, enacted a

presumption to assist potential claimants in obtaining benefits.

Code § 38.2-5008(A)(1). Code § 38.2-5008(A)(1) provides, in

pertinent part, 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

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 the infant was thereby rendered permanently
motorically disabled and (i) developmentally
disabled or (ii) for infants sufficiently
developed to be cognitively evaluated,
cognitively disabled.

If either party disagrees with such
presumption, that party shall have the
burden of proving that the injuries alleged
are not birth-related neurological injuries
within the meaning of the chapter.

(Emphasis added). Before the Code § 38.2-5008 presumption that

an injury is birth-related comes into play, a claimant must

prove that his injury was to the brain or spinal cord and that

it was caused by oxygen deprivation or mechanical injury. Here,

claimant does not allege that his disability resulted from

mechanical injury. Thus, we consider only whether the evidence

was sufficient to support the commission's finding that claimant

failed to prove his injury was caused by oxygen deprivation.

Claimant bore the burden of proving by a preponderance of

the evidence that he suffered an oxygen deprivation. That

evidence must establish a probability of oxygen deprivation, not

merely a possibility. See, e.g., Fairfax Hosp. Sys. v. Curtis,

249 Va. 531, 535, 457 S.E.2d 66, 69 (1995). As with any medical

question before the commission,

"[m]edical evidence is not necessarily
conclusive, but is subject to the
commission's consideration and weighing."
Hungerford Mech. Corp. v. Hobson, 11 Va.
App. 675, 677, 401 S.E.2d 213, 214
(1991). . . . "Questions raised by
conflicting medical opinions must be decided
by the commission." Penley v. Island Creek

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 Coal Co., 8 Va. App. 310, 318, 381 S.E.2d
231, 236 (1989). . . . "The fact that there
is contrary evidence in the record is of no
consequence if there is credible evidence to
support the commission's finding." Wagner
Enters., Inc. v. Brooks, 12 Va. App. 890,
894, 407 S.E.2d 32, 35 (1991).

Virginia Birth-Related Neurological Injury Comp. Pgm. v. Young,

34 Va. App. 306, 318, 541 S.E.2d 298, 304 (2001).

On this record, we find credible evidence to support the

commission's decision. All medical experts agreed that

claimant's "neurological deficit was a result of a venous sinus

thrombosis" which "became manifest by seizures at 10 days of

age." Although they disagreed as to the cause of that

thrombosis, credible evidence established it was caused by

dehydration occurring after claimant's initial release from the

hospital rather than by asphyxia "occurring in the course of

labor, delivery or resuscitation in the immediate post-delivery

period."

Claimant's only medical expert to offer an opinion in

claimant's action for benefits from the fund, Dr. Karotkin,

opined that the thrombosis occurred at birth when Andrew's

mother's uterus ruptured, causing asphyxia, but that "[t]he

effects of the thrombosis were silent during the immediate

newborn period." 5 Dr. Karotkin said that Dr. Kerkering noted

5
On brief, claimant cites an article from the July 5, 2001
issue of The New England Journal of Medicine as supporting
Dr. Karotkin's opinion regarding the effect of uterine rupture

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fetal bradycardia immediately prior to removal of the fetal

heart monitor, and Dr. Karotkin testified that this episode of

bradycardia "would indicate that the fetus was in some jeopardy

due to a possible decrease of blood supply and oxygen to the

fetus." However, as the commission noted, Dr. Karotkin admitted

on cross-examination that no objective evidence in the record,

other than the thrombosis itself, suggested an episode of

hypotension or bradycardia in the baby during delivery.

Dr. Herbert, writing for the panel of physicians involved

pursuant to Code § 38.2-5008(B), confirmed that "[t]he fetal

heart rate tracing prior to delivery was normal." Thus, the

evidence supports the conclusion that Dr. Kerkering erred when

she noted Andrew experienced an episode of fetal bradycardia

immediately prior to removal of the fetal heart monitor and that

Dr. Karotkin attempted to rely on this error, despite his

knowledge that no objective evidence in the record, other than

the occurrence of the thrombosis itself, suggested an episode of

hypotension or bradycardia in the baby. Accordingly, the record

supports the commission's conclusion that Dr. Karotkin's opinion

on a fetus. Although this article was published before the
commission's issuance of its review opinion on July 26, 2001,
the record contains no indication that claimant submitted the
article to the commission for its consideration prior to the
commission's issuance of its decision or asked the commission,
after the issuance of its decision, to reconsider based on the
article. We are unable to consider evidence offered for the
first time on appeal.

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was inconsistent and unpersuasive and that claimant's evidence

established, at most, the possibility rather than probability

that an oxygen deprivation caused Andrew's thrombosis. 6

Furthermore, as the commission noted, the other medical

experts opined that Andrew suffered no injury at birth and that

the thrombosis resulted from dehydration which occurred after

Andrew's release from the hospital. 7 Drs. Kerkering, Morton and

6
Claimant effectively conceded this point when he argued on
brief that "the uterine rupture is a non-excludable cause of
[Andrew's] condition due to lack of objective evidence as to
fetal distress in the medical records which would have been
evidenced by fetal heart tracings and arterial blood gas
readings." Claimant complains that his claim should not be
denied due to a lack of objective evidence of fetal distress
because fetal heart tracings and arterial blood gas readings
which could have confirmed fetal oxygen deprivation were not
obtained. However, the statutory scheme places the burden of
proving oxygen deprivation on the claimant, and no evidence
establishes that this lack of evidence resulted from negligence
or intentional behavior on the part of any treating physician.
Claimant concedes the fetal heart monitor was disconnected to
permit the emergency cesarean section, and the panel opined that
Andrew's "vigorous condition" at birth "may well have been
deemed adequate to verify his immediate condition" without
obtaining "an umbilical cord pH."
7
Citing Code § 8.01-401.3 and a similar federal evidentiary
rule, claimant argues that the program's medical evidence did
not sufficiently exclude oxygen deprivation as a probable cause
of his injury. However, Code § 8.01-401.3 relates to the
admissibility of expert testimony which "will assist the trier
of fact to understand the evidence or to determine a fact in
issue." That code section does not deal with the sufficiency of
expert testimony to prove a fact in issue. On appeal,
claimant's only challenge to the admissibility of this evidence
relates to the timeliness of its filing. His primary argument
deals with the sufficiency of the expert opinions rather than
their admissibility. Thus, Code § 8.01-401.3 and any cases
interpreting it or its federal counterpart are irrelevant in
this appeal.

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Taylor, as well as the panel physicians, all pointed to Andrew's

condition at birth, including his good APGAR scores and the lack

of any "significant neurological problem in the immediate time

frame after birth," as strong evidence that he suffered no

lasting negative effects from the delivery process. The record

also established that venous sinus thrombosis is caused by any

of six conditions, including dehydration, asphyxia, infection,

hyperviscosity, hypercoagulopathy, and trauma, but that severe

dehydration is the most common cause. Drs. Kerkering, Morton

and Taylor, as well as the panel physicians, opined that

claimant was dehydrated when readmitted to the hospital, and all

opined that Andrew suffered from no other precipitating

condition. Thus, the record also supports the commission's

findings that the evidence established dehydration and that this

dehydration was the most likely cause of claimant's injury.

For these reasons, we hold the record supports the

commission's finding that claimant failed to prove his condition

was a birth-related neurological injury as defined in Code

§ 38.2-5001. Therefore, we affirm the commission's denial of

benefits.

Affirmed.

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