Virginia Birth-Related Neurological Injury Compensation Program v. Young

541 S.E.2d 298, 34 Va. App. 306

• Court: Court of Appeals of Virginia
• Decided: February 13, 2001
• Docket: Record 0827-00-2
• Status: Published

Opinions

WILLIS, Judge.

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 faded to rebut the statutory presumption contained in Code § 38.2-5008(A). For the reasons that follow, we affirm.

I. THE ACT

The Virginia Birth-Related Neurological Injury Compensation 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 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 “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 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 previa¹ and developed oligohydramnios² 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. 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.

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 28,1989, he was readmitted. Dr. Stephen Bryant, the admitting 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 con-eluded 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 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 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 [bjecause 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.

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 § 88.2-5008(A)

The Program contends that it produced sufficient evidence to overcome the rebuttable presumption set forth in Code § 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 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).

Accordingly, we affirm the judgment of the commission.

Affirmed.

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.