COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Annunziata and Senior Judge Coleman ∗ Argued at Richmond, Virginia
VIRGINIA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION PROGRAM OPINION BY v. Record No. 0827-00-2 JUDGE JERE M. H. WILLIS, JR. FEBRUARY 13, 2001 ADA F. YOUNG, MOTHER OF WILLIAM T. YOUNG, JR.
FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION
John J. Beall, Jr., Senior Assistant Attorney General (Mark L. Earley, Attorney General; Frank S. Ferguson, Deputy Attorney General, on brief), for appellant.
Grady W. Donaldson, Jr. (Schenkel & Donaldson, P.C., on brief), for appellee.
The Virginia Birth-Related Neurological Injury Compensation
Program (Program) appeals the decision of the Workers'
Compensation Commission (commission) awarding benefits and
expenses to Ada F. Young, mother of William T. Young, Jr.,
(Tommy), pursuant to Code § 38.2-5009. The Program contends the
commission erred when it found that the Program failed to rebut
the statutory presumption contained in Code § 38.2-5008(A). For
the reasons that follow, we affirm.
∗ Judge Coleman participated in the hearing and decision of this case prior to the effective date of his retirement on December 31, 2000 and thereafter by his designation as a senior judge pursuant to Code § 17.1-401. I. THE ACT
Act (Act) was established to provide compensation to families
whose neonates suffer "birth-related neurological injuries."
See Code §§ 38.2-5000 through 38.2-5021. Code § 38.2-5001
defines a "birth-related neurological injury" as follows:
"Birth-related neurological injury" means injury to the brain or spinal cord of an infant 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.
Code § 38.2-5008(A) provides 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.
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.
There are two theories of presumptions, the "Thayer theory"
and the "Morgan theory." The "Thayer theory," or "bursting
- 2 - bubble theory," holds that "the only effect of a presumption is
to shift the burden of production with regard to the presumed
fact." City of Hopewell v. Tirpak, 28 Va. App. 100, 116, 502
S.E.2d 161, 169 (1998) (citations omitted). Under the "Thayer
theory," if countervailing evidence is produced by the party
against whom the presumption operates, "the presumption is
'spent and disappears,' and the party who initially benefited
from the presumption still has the burden of persuasion on the
factual issue in question." Id. The Thayer theory has been
criticized because it gives presumptions an effect that is too
"slight and evanescent" in view of the substantial policy
reasons underlying their creation. See id.
The second theory, the "Morgan theory," holds that the
"presumption should have the effect of shifting both the burden
of production and the burden of persuasion on the factual issue
in question to the party against whom the presumption operates."
Id. This interpretation of the presumption's effect ensures
that the "presumption, particularly one created to further
public policy, has 'enough vitality to survive the introduction
of opposing evidence which the trier of fact deems worthless or
of slight value.'" Id. at 117, 502 S.E.2d at 169 (quoting 9
Wigmore, Evidence § 2493g (Chadbourn rev. 1981)).
The Program contends that Code § 38.2-5008(A) sets forth a
"Thayer theory" presumption. The Program argues that it needed
only produce evidence that Tommy's injury was not a
- 3 - "birth-related neurological injury" to be relieved of paying
compensation. Alternatively, the Program contends that even if
Code § 38.2-5008(A) sets forth a "Morgan theory" presumption, it
sufficiently rebutted the presumption by proving that Tommy's
condition does not result from a "birth-related neurological
injury."
"The law of presumptions in Virginia reflects both the
Thayer theory and the Morgan theory." Tirpak, 28 Va. App. at
117, 502 S.E.2d at 169. In Tirpak, we concluded that "there is
no single rule governing the effect of all presumptions;
instead, the effect of a particular presumption on the burdens
of production and persuasion depends upon the purposes
underlying the creation of the presumption." Id. at 118, 502
S.E.2d at 171.
The purpose of Code § 38.2-5008(A) is to implement a social
policy of providing compensation to families whose neonates
suffer birth-related neurological injuries. To give full effect
to this policy, the presumption must be clothed with a force
consistent with the underlying legislative intent. Application
of the "Thayer theory" would be inconsistent with the policy
objectives of Code § 38.2-5008(A). The presumption set forth in
Code § 38.2-5008(A) must be construed according to the "Morgan
theory." Therefore, the presumption set forth in Code
§ 38.2-5008(A) shifts to the Program both the burden of
- 4 - production and the burden of persuasion on the issue of
causation.
II. BACKGROUND
Tommy, who suffers from severe cerebral palsy, was born on
March 30, 1989, after twenty-seven weeks gestation. Ms. Young,
his mother, had undergone an amniocentesis on January 6, 1989,
and began leaking amniotic fluid immediately thereafter. As a
result, Ms. Young had a placenta previa 1 and developed
oligohydramnios 2 and chorioamnionitis. 3
Shortly before Tommy was born, Ms. Young arrived at
Virginia Baptist Hospital with abdominal pains, a bloody vaginal
discharge and frequent contractions. A fetal heart monitor was
attached and indicated no fetal distress. Because of the
suspected chorioamnionitis, placenta previa and prematurity of
the pregnancy, Ms. Young was transferred to the University of
Virginia Hospital.
Upon arrival at the University of Virginia Hospital at
9:03 p.m., Ms. Young was scheduled for an emergency caesarian
section surgery. A fetal heart monitor was attached and
indicated no fetal distress. Tommy was delivered at 10:40 p.m.
1 "[A] placenta which develops in the lower uterine segment, in the zone of dilatation . . . ." Dorland's Illustrated Medical Dictionary 1023 (26th ed. 1985). 2 "[T]he presence of less than 300 ml. of amniotic fluid at term." Id. at 919. 3 "[I]nflammation of fetal membranes." Id. at 264.
- 5 - The obstetrician noted that the umbilical cord was wrapped once
around Tommy's neck. The pH of the umbilical cord was 7.30,
described as "good, not poor." The placenta was noted to be
"foul smelling," indicating intrauterine infection.
Upon delivery, Tommy was not breathing and had no heart
beat. Progress notes indicate that at birth, he was "small;
limp & aphallic." CPR was administered. By 10:47 p.m., after
administration of a surfactant, chest compressions, and
"vigorous" bagging, Tommy's heart and respiratory rates
elevated. His color improved, and he was moving. His Apgar
scores were "0" at one minute, "1" at five minutes, and "5" at
ten minutes.
Tommy was transferred to the neonatal intensive care unit
and placed on a ventilator. Dr. Robert Darnell, an attending
physician, noted that, upon arrival in the intensive care unit,
Tommy "decompensated." The doctors were unable to maintain
oxygen levels above eighty percent "despite vigorous bagging."
A right-sided pneumothorax was noted, and a chest tube was
placed. Tommy required vigorous bagging for one to two hours.
By 2:30 a.m., an attending physician noted that despite
receiving the surfactant, treatment for the pneumothorax, and
maximum ventilator pressures, Tommy's arterial blood gases were
not satisfactory. He mentioned that withdrawal of life support
should be considered if Tommy's condition did not improve within
ten to twelve hours.
- 6 - By 3:47 a.m. on March 31, 1989, blood work indicated that
Tommy's "moderate" hypochromia should be downgraded to "slight."
By 10:10 a.m., x-rays revealed a residual right-sided
pneumothorax as well as a pneumomediastinum. By 12:30 p.m., the
pneumothorax had resolved. The pneumomediastinum resolved by
11:20 p.m. A head ultrasound taken that day was interpreted as
"normal," with no evidence of intracranial hemorrhage.
Tommy's oxygen requirement slowly decreased during his stay
in the intensive care unit. He was discharged to Virginia
Baptist Hospital on July 7, 1989, with oxygen being administered
through nasal cannula. His primary diagnosis was
bronchopulmonary dysplasia.
Upon admission to Virginia Baptist Hospital, Tommy's
neurological exam was "normal" except for "jitteriness." On
August 10, 1989, Dr. Teresa Brennan of the Virginia Baptist
Hospital Neurodevelopmental Clinic performed a "baseline
neurodevelopmental exam." Dr. Brennan noted that Tommy was "at
risk for developmental delay in light of extreme prematurity,
low birth weight, initial asphyxia, and severe respiratory
distress with subsequent bronchopulmonary dysplasia." She
further noted that Tommy's exam was nevertheless "encouraging,"
given his degree of prematurity.
On August 15, 1989, Tommy was discharged home from Virginia
Baptist Hospital. Following an apneic episode on August 23,
1989, he was readmitted. Dr. Stephen Bryant, the admitting
- 7 - physician, noted that Tommy "has an extensive medical history
secondary to a 28 week gestation, asphyxia, and hypoplastic
lungs." Dr. Brennan performed a follow-up neurological exam on
October 26, 1989, and noted "delayed motor and expressive
language skills and borderline language skills." She noted that
she discussed with Tommy's parents "the possibility of there
having been some significant brain injury related to his
perinatal problems." By March 22, 1990, Dr. Brennan diagnosed
Tommy with cerebral palsy.
On August 1, 1997, Dr. Mark Abel, with the Commonwealth of
Virginia's Children's Rehabilitation Center, opined that Tommy
had "spastic quadriparesis secondary to Cerebral Palsy (birth
injury)." An April, 1998 Campbell County Public Schools
diagnostic summary stated that Tommy's "intellectual abilities
fall in the mildly mentally deficient range."
Pursuant to the Virginia Birth-Related Neurological Injury
Compensation Act (Act), a panel of physicians reviewed Tommy's
medical records to determine whether his neurological condition
was caused by the birth process. Dr. John Seeds, chairman of
the Medical College of Virginia Hospital's Department of
Obstetrics and Gynecology, stated in a September 25, 1998 report
that the panel reviewing Tommy's records concluded that
"infection or complications of extreme prematurity or both were
the causes of this child's problems," and not the birth process.
Dr. Seeds noted that "the neonate was described as foul
- 8 - smelling, as was the fluid, consistent with intrauterine
infection." He also stated that, although the Apgar scores were
low, the umbilical cord pH was 7.30, "which is strong evidence
against intrapartum hypoxemia." He further stated that "fetal
heart rate monitoring does not show any pattern consistent with
labor related fetal compromise."
The Program requested Dr. John Partridge, an obstetrician,
to review Tommy's medical records. In an October 2, 1998
report, Dr. Partridge opined that "the baby's problems cannot be
said to have been caused during the window of time around the
delivery." At the hearing, Dr. Partridge testified that it was
"entirely possible" Tommy had some asphyctic injury during the
last weeks prior to birth but it was "more likely" that the
injury was after the birth. He testified:
Because the baby was premature, the baby's air sacks could not hold air, they couldn't let air get in and out well. Even the mechanical ventilator had difficulty doing its job because the baby's respiratory system was poorly developed. The problem lies in that right at birth and immediately after birth we have the least likely scenario of injury. The baby had a poor Apgar at birth. This can certainly indicate a problem either before or during the delivery process. But with resuscitation the baby did perk up, and it was common -- is moving its extremities and having better color by the time it reached the nursery. Plus the initial acid base level that we call a PH level looked good, not poor. If the baby had really suffered inside the uterus or during the delivery time of the C-section, that acid base level or PH should have been poor, not good. In addition, the
- 9 - scans that they did on the baby's head initially showed no hemorrhage. That included a CT scan, and a head ultrasound.
He opined that if Tommy had been injured inside the uterus,
leading to bleeding inside the brain, that bleeding should have
been visible on one of the scans taken in the first two days
after birth. He stated:
So my conclusion is that the baby's problem was caused by the air sack difficulty, the bronchial pulmonary hypoplasia or lack of development as we would phrase it [b]ecause of the prematurity [and] the fact that it had not had the normal amount of amniotic fluid around it to be able to develop those air sacks.
He agreed that "certainly in the first day there was a struggle
trying to get good ventilation, and it was a profound struggle,
even in that first 24 hours." He noted, however, that during
the first half hour to forty-five minutes, the doctors performed
immediate resuscitation efforts and the baby seemed to show some
response: "The baby was moving its extremities and seemed to
improve in color." During the next few hours, Tommy took a turn
for the worse and his condition deteriorated from there. Dr.
Partridge concluded that Tommy had difficulty ventilating within
the first week of birth and that his brain injury developed
during that first week. Despite his attending physicians'
efforts during that time, they could not overcome the basic
deficiency of his small airways.
- 10 - The deputy commissioner ruled that the Program had overcome
the rebuttable presumption set forth in Code § 38.2-5008(A),
holding that the pre-delivery fetal heart monitoring and
post-delivery pH reading along with the first CT scan and
ultrasound together with the opinions of Drs. Seeds and
Partridge, overcame the rebuttable presumption and proved that
Tommy's condition resulted from injuries that took place other
than during labor, delivery and resuscitation. Upon review, the
full commission reversed the deputy commissioner's decision,
noting that "[Tommy] 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." The commission
further noted:
Dr. Brennan, a neurologist, and Dr. Bryant, who treated Tommy shortly after he was born, both attributed his problems in part to asphyxia. Dr. Brennan specifically referred to "initial asphyxia" as contributing to his neurological condition. Dr Wells, another treating physician, simply described Tommy's cerebral palsy as a "birth injury." Dr. Partridge's report indicates that he was trying to discern the "asphyxia causation."
The commission held that the program had "failed to provide
sufficient evidence to rebut the statutory presumption [of Code
§ 38.2-5008(A)]."
III. CREDIBLE EVIDENCE NECESSARY TO REBUT THE PRESUMPTION OF CODE § 38.2-5008(A)
The Program contends that it produced sufficient evidence
to overcome the rebuttable presumption set forth in Code
- 11 - § 38.2-5008(A). Because the presumption of Code § 38.2-5008(A)
shifts to the Program both the burden of production and the
burden of persuasion on the issue of causation, 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.
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."
Bass v. City of Richmond Police Dep't, 258 Va. 103, 114, 515
S.E.2d 557, 562 (1999) (quoting Code § 65.2-706(A)). "On appeal
from this determination, the reviewing court must assess whether
there is credible evidence to support the commission's award."
Id. at 115, 515 S.E.2d at 563 (citations omitted).
In ruling that the Program had failed to rebut the
presumption, the full commission found as follows:
We are persuaded that the Program has not carried its burden. Notwithstanding the opinions of Dr. Seeds, writing on behalf of the panel, and Dr. Partridge, it is clear that Tommy suffered from oxygen deprivation during the birth-process -- 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. Although his condition improved for a few moments after resuscitation, he
- 12 - immediately decompensated in intensive care and for several hours the doctors were unable to obtain acceptable oxygen levels.
As to the contribution of this oxygen deprivation to his disability, Dr. Brennan, a neurologist, and Dr. Bryant, who treated Tommy shortly after he was born, both attributed his problems in part to asphyxia. Dr. Brennan specifically referred to "initial asphyxia" as contributing to his neurological condition. Dr. Wells, another treating physician, simply described Tommy's cerebral palsy as a "birth injury." Dr. Partridge's report indicates that he was trying to discern the "asphyxia causation."
"Medical evidence is not necessarily conclusive, but is
subject to the commission's consideration and weighing."
Hungerford Mechanical Corp. v. Hobson, 11 Va. App. 675, 677, 401
S.E.2d 213, 214 (1991). In its role as fact finder, the
commission was entitled to weigh the medical evidence. The
commission did so and accepted the opinions of a treating
physician, Dr. Bryant, and of Dr. Brennan, a neurologist, while
rejecting the contrary opinions of Drs. Seeds and Partridge.
"Questions raised by conflicting medical opinions must be
decided by the commission." Penley v. Island Creek Coal Co., 8
Va. App. 310, 318, 381 S.E.2d 231, 236 (1989).
From this record, we find credible evidence supporting the
commission's decision. "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).
- 13 - Accordingly, we affirm the judgment of the commission.
Affirmed.
- 14 - Annunziata, J., 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
- 15 - §§ 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 resuscitation 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)(1). 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
- 16 - established that the oxygen deprivation which occurred in the
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
- 17 - prematurity, low birth weight, initial asphyxia, and severe
respiratory distress with subsequent bronchopulmonary
dsyplasia." 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
- 18 - 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
umbilical 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
- 19 - 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
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
utero 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 the commission's
decision. Morris v. Badger Powhatan/Figgie International, Inc.,
4 The medical evidence presented by the Program supporting that conclusion included the presence of oligohydramnios in 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 O-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.
- 20 - 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.").
- 21 -