                   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

     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

                                 - 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

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

                             - 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

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

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 -
