                     COURT OF APPEALS OF VIRGINIA


Present:  Chief Judge Fitzpatrick, Judge Elder and
          Senior Judge Coleman
Argued at Salem, Virginia


TAYLOR HOPE WOLFE, INFANT, BY
 RONDA L. WOLFE, MOTHER AND NEXT FRIEND
                                                  OPINION BY
v.   Record No. 2489-02-3                    JUDGE LARRY G. ELDER
                                                 MAY 20, 2003
VIRGINIA BIRTH-RELATED NEUROLOGICAL
 INJURY COMPENSATION PROGRAM


           FROM THE VIRGINIA WORKERS' COMPENSATION COMMISSION

             Robert W. Mann (Young, Haskins, Mann,
             Gregory & Smith, PC, on brief), for
             appellant.

             Mahlon G. Funk, Jr. (M. Seth Ginther;
             Hirschler Fleischer, on brief), for appellee.


     Ronda L. Wolfe (Wolfe), suing as mother and next friend of

infant Taylor Hope Wolfe (claimant or Taylor), appeals from a

decision of the Workers' Compensation Commission (the

commission) concluding that Taylor is not entitled to benefits

from the Birth-Related Neurological Injury Compensation Program

(the Program) under the Birth-Related Neurological Injury

Compensation Act (the Act), Code §§ 38.2-5000 to 38.2-5021.     On

appeal, claimant contends the commission erroneously (1)

concluded she failed to prove a birth-related brain injury

caused by oxygen deprivation; (2) failed to infer the results of

umbilical cord blood gas testing, which she contends should have
been requested by the delivering physician, would have proved

Taylor suffered birth-related oxygen deprivation; (3) failed to

hold the Program was bound by what she alleges was a concession

that she was entitled to the Code § 38.2-5008 presumption; and

(4) failed to conclude the Program did not rebut the presumption

because it did not establish a specific non-birth-related cause

of Taylor's injury.

     We hold the Program did not concede claimant's entitlement

to the Code § 38.2-5008 presumption and that the evidence,

absent an inference that the absent cord blood gas testing would

have shown oxygen deprivation, was insufficient to prove

claimant's entitlement to the Code § 38.2-5008 presumption.

However, we hold that such an inference is available to a

claimant under appropriate facts.    Thus, we remand to the

commission to determine whether those facts were present in this

case and, if so, whether the evidence, including the inference,

was sufficient to prove claimant's entitlement to the statutory

presumption and benefits under the Act.   Thus, we affirm in

part, reverse in part, and remand for further proceedings

consistent with this opinion.

                                I.

                            BACKGROUND

     Taylor was born on January 24, 1998, at thirty-seven weeks

two days of gestation.   The day prior to Taylor's delivery, her

mother was found to have pregnancy-induced hypertension and was
                              - 2 -
admitted to the hospital where labor was induced.    At the time

of Taylor's birth, the delivering physician, Lenworth Beaver,

and hospital, Danville Regional Medical Center, were

participants under the Act.

     Wolfe had good prenatal care and an uneventful delivery.

Wolfe's amniotic sac broke spontaneously about an hour before

delivery, and the amniotic fluid was clear.    There were no signs

of meconium at any time during the delivery.

     Hospital personnel monitored Taylor's heartbeat

continuously in utero until approximately 30 minutes before

delivery and at least every five minutes thereafter in

accordance with the standards of the American College of

Obstetricians and Gynecologists (ACOG).   The fetal heart monitor

strips and subsequent auscultation or stethescopic heart

monitoring were normal and gave no indication of hypoxia or

fetal distress.   The records also revealed no evidence of

utero-placental insufficiency or cord compression.

     Dr. Beaver was present when Taylor crowned, and he

delivered the eight-pound-ten-ounce baby by vacuum extraction,

without incident, due to Wolfe's poor pushing ability.    At the

time of delivery, Taylor was not breathing spontaneously.    At

two minutes after delivery, medical personnel began ventilating

Taylor by mask and bag.   At four minutes after delivery, Taylor

displayed poor respiratory effort, flaccidity and tremors, and

she was intubated.   She "had clonus when disturbed."
                               - 3 -
     Despite the fact that Taylor was not breathing

spontaneously, she was pink at delivery and pink at one, two,

five and ten minutes following delivery.   Her APGAR scores were

4 at one minute, 4 at five minutes, and 6 at ten minutes.    Each

score included the maximum of two points allowed for heart rate

and color.   All post-delivery arterial blood gases were within

acceptable limits.   At 10:20 a.m., approximately six hours after

birth, Taylor was described as "pale pink."   The records contain

no indication that umbilical cord blood gases were measured, and

a subsequent records review observed that "nurses' flow sheets

and any records from the delivery M.D." are "conspicuously

absent."

     The day following Taylor's birth, she "developed seizure

activity" that was controlled with medication.

     An EEG performed within the first twenty-four hours was

normal.    Imaging studies showed no cystic degeneration, gray

matter or other neurological abnormalities.   A CT scan performed

at one day of birth showed small left and right frontal lobe

hemorrhages.   These hemorrhages were absent on MRIs performed

two days and twenty-three days after birth.   Testing also

revealed no evidence of multi-organ failure (cardiovascular,

gastrointestinal, renal, hematologic, and pulmonary systems) in

the neonatal period.

     Taylor has been diagnosed with cerebral palsy.    She is fed

through a gastronomy tube and is unable to walk or speak.
                              - 4 -
     On March 26, 2001, Wolfe submitted a claim for benefits on

Taylor's behalf.   The Program eventually denied the claim for

benefits.   The Program conceded that Taylor is permanently

motorically and developmentally disabled but denied that

Taylor's condition results from a birth-related neurological

injury as defined in the Act.

     The parties submitted evidence to the chief deputy

commissioner in support of their respective positions.

     Claimant relied on the records of numerous treating

pediatric experts who opined that Taylor had "probable perinatal

anoxic brain injury."

     Neurologist Francis X. Walsh reviewed Taylor's medical

records and opined to a reasonable degree of medical certainty

that she "suffer[ed] an anoxic ischemic event to the brain at or

about the time of delivery."    Dr. Walsh admitted that "[t]he

actual delivery records do not pinpoint specific evidence of

anoxia having occurred at a particular time."   He said, however,

that the records for the half-hour period immediately prior to

the delivery were "scanty" and that such a diagnosis was all

that remained after the elimination of congenital, infectious

and "any other explanation for the child's global developmental

delay" by "two well-respected pediatric neurologists."

     Dr. Richard T. Welham, a member of ACOG, also reviewed

Taylor's records at her attorney's request.   Dr. Welham opined

in relevant part as follows:
                                - 5 -
           [The infant's] color was reported as good
           even in the face of no respiratory efforts.
           Unfortunately, . . . immediate postpartum
           umbilical cord gases were not done . . . .
           Without these, it is difficult if not
           impossible to be certain that the baby was
           not anoxic and acidotic at the time of
           delivery.

                *    *    *     *      *     *     *

                . . . [W]e have a normal appearing
           fetal heart tracing and a very abnormal
           infant outcome. The only event that
           occurred between these two things was the
           delivery itself. If an immediate postpartum
           blood gas had been done and showed normal
           findings, that would be consistent with a
           neurological insult that could have occurred
           distant from the delivery itself. Without
           that vital piece of information, it is
           impossible to exclude anoxia and asphyxia as
           the cause of her neurologic problems.

     The Program obtained an opinion from Obstetrician Daniel G.

Jenkins, who originally opined, "based on minimal evidence,"

that Taylor "qualifie[d] for the fund."    Dr. Jenkins found "[n]o

evidence of negligence . . . , despite little documentation."

Jenkins subsequently changed his opinion and concluded that

Taylor "does not qualify for the fund."    He explained as

follows:

           I have re-read my review and note that I
           omitted prematurity as a cause of cerebral
           hemorrhage and cerebral palsy. I feel I may
           have over-reacted to lack of documentation
           by nurses, the M.D. (Dr. Beaver), or
           possibly the hospital records department.
           While there is little documentation, there
           is no evidence, however, of real or
           perceived intrapartum asphyxia that could
           have caused this profound disability.

                               - 6 -
          Hence, one is left with one of the causes of
          cerebral palsy, which is "unknown."

          This then changes my opinion, and I feel
          that this child does not qualify for the
          fund as I had previously stated. . . . [I]n
          rethinking this as well as the literature
          regarding cerebral palsy, I feel that this
          is a fairer decision than I previously
          rendered.

     The Program also offered the opinion of Lisa R. Troyer, a

physician who was board-certified in both obstetrics and

gynecology and high risk obstetrics.      Dr. Troyer reviewed

Taylor's medical records before providing a written opinion and

testifying by deposition.   She did not examine Taylor or

participate in her care.    Dr. Troyer opined, to a reasonable

degree of medical certainty, that hypoxia "sufficient to account

for the neurologic injury that Taylor has" did not occur during

the second stage of Wolfe's labor.       She testified that any gaps

in the fetal heart monitoring during labor occurred "mainly

before midnight in the earlier parts of labor" and that "[t]here

are lots of [fetal heart] tracings in what would appear to be

the active part of labor that are well-documented and adequate"

with no indication of hypoxia.    When Wolfe entered the second

stage of labor at 3:58 a.m., "[t]here was no evidence of fetal

compromise at the time, the fetal heart tracing was reactive."

Thereafter, the records indicated that fetal monitoring occurred

by auscultation at 4:00, 4:05, 4:10, 4:15 and 4:20 a.m., and

that intermittent fetal tracings were obtained between 4:08 and

                                 - 7 -
4:12 a.m.   Delivery occurred at 4:27 a.m.   The delivery records

contained no mention of meconium "at the end of the delivery,"

which would have been indicative of fetal distress.

     Dr. Troyer explained ACOG standards provide that "in the

absence of fetal distress or abnormal labor[,] [documented]

auscultation every five minutes" constitutes sufficient

monitoring.   Dr. Troyer said she herself would have preferred

more detailed data on fetal heart activity during the second

stage of labor.   However, she explained the fact that Taylor was

pink rather than blue at delivery, as noted in the delivery

records, "indicate[d] adequate oxygenation" "[d]uring the course

of the second stage."   Based on the evidence of fetal heart

activity "ranging in the 120s and the 130s" "through labor and

delivery" as "shown on intermittent monitoring, either by the

tracing or by the nurse," and the baby's color, Dr. Troyer

opined, "[I]t's unlikely that [Taylor suffered] hypoxia [during

the labor and delivery] that [was severe enough to] result in

the degree of neurological injury [Taylor exhibited]."

     Dr. Troyer explained that "keeping the baby on [external]

monitors with the [mother's] pushing" is "difficult[]."   When

asked whether an internal monitor should have been used after

Wolfe's water broke at about 3:30 a.m., Dr. Troyer explained

that because "there was no evidence of fetal distress" at that

time, it was "okay to accede with an external monitor."


                               - 8 -
     Dr. Troyer opined that the standard of care is that

umbilical cord gas should be checked "if there is evidence of

concern during the labor and [about] the oxygenation status of

the baby."   She also said that "[i]f at birth there is evidence

of difficulty," which she agreed there was in this case, "then

it is prudent to check a cord gas to assess the oxygenation

status."    She agreed that, when Taylor was born, "everybody knew

there were problems immediately" and that the delivering

physician should have clamped the cord and cut a segment for

testing.    She also agreed that the results of cord blood testing

"would have been diagnostic of whether [Taylor] had asphyxia

during this period of time."   Nevertheless, after agreeing with

this statement, she opined, to a reasonable degree of medical

certainty, that hypoxia "sufficient to account for the

neurologic injury that Taylor has" did not occur during the

second stage of Wolfe's labor.

     Dr. Troyer explained that under ACOG standards, four

criteria must be present to support a diagnosis of birth

asphyxia.    Those criteria are (1) "a cord pH less than 7.0,"

indicating a metabolic acidosis; (2) APGAR scores "ranging from

zero to 3 at greater than five minutes of life"; (3)

"neurological sequella[e] as evidenced by coma, tumor, tremors,

seizures, poor tone"; and (4) multi-organ damage, that is damage

to the tissues in a second body system (cardiovascular,

respiratory, gastrointestinal, renal or hematologic) exhibited
                              - 9 -
"during the time that [the infant] is in the [neonatal intensive

care unit] or in the nursery during the newborn period."

Dr. Troyer testified that although cord pH results were

unavailable, Taylor did not meet the multi-organ damage or APGAR

score requirements necessary for a diagnosis of birth-related

asphyxia.

     Dr. Troyer testified that the presence of such small

hemorrhages in Taylor's brain and their subsequent disappearance

was "consistent with a normal neonate."   The disappearance of

the hemorrhages and MRIs that reflected a normal brain and brain

stem were inconsistent with perinatal asphyxia/hypoxia and ACOG

criteria for the diagnosis of same.

     The Program also submitted the opinion of a panel of

physicians comprising Dr. John W. Seeds, a neonatologist at the

Medical College of Virginia (MCV), and Drs. Thomas Peng and

Joseph Borzelleca, members of the obstetrics and gynecology

faculty at MCV, pursuant to Code § 38.2-5008(B).   The panel

opined as follows:

            [T]here is no evidence in the record that
            supports a finding of oxygen deprivation
            during labor, delivery, or the
            resuscitation. The fetal monitor strip
            shows no abnormalities consistent with such
            a finding, the amniotic fluid was clear one
            hour before birth, the neonatal heart rate
            and the skin color were the two normal
            findings as early as one minute of life, and
            there was no evidence of multi organ failure
            as required by both the American College of
            Obstetricians and Gynecologists [(ACOG)] and
            the American Academy of Pediatrics [(AAP)]
                                - 10 -
           to support a diagnosis of perinatal
           asphyxia. While multiple non obstetric
           specialists opine that perinatal anoxia is
           the cause of [Taylor's] injury because they
           find no other, that basis by itself is not
           accepted by either [ACOG] or [AAP].

           There was no umbilical cord pH obtained. A
           pH less than 7.0 would have supported
           perinatal hypoxemia. However, lack of proof
           that she wasn't acidotic is not proof that
           she was acidotic. Therefore, we are left to
           interpret clinical findings of normal heart
           rate and normal color shortly after birth
           and antenatal evidence in the normal heart
           rate tracing that do not combine to support
           a finding of perinatal hypoxemia as the
           cause of her disabilities. While we cannot
           exclude a remote hypoxemic event prior to
           labor as the cause, this would not satisfy
           the statute . . . . We do not propose to
           know the cause of her disabilities, but
           absence of an alternative cause does not
           prove it was perinatal oxygen deprivation as
           defined by the statute.

                . . . We cannot, from these records,
           conclude to a reasonable degree of medical
           certainty, that this child's disabilities
           resulted from oxygen deprivation during
           labor, delivery, or the immediate
           resuscitation.

     At the hearing before the chief deputy commissioner,

claimant advanced a spoliation of evidence theory.   She argued

the delivering physician should have obtained a cord blood gas

level and that his failure to do so entitled her to a

presumption that the results of such testing would have been

favorable to her.   The chief deputy commissioner rejected the

spoliation argument on the ground that Dr. Beaver was not a

party.   She found persuasive the opinions from Dr. Troyer and

                               - 11 -
panel physician Dr. Seeds that no evidence established the

infant sustained a brain injury caused by oxygen deprivation.

     The commission affirmed the denial of benefits by a vote of

two to one.   The majority implicitly rejected the spoliation

argument, noting the lack of umbilical cord blood gas testing

and concluding the evidence established "that the cause of

Taylor's condition is uncertain."       The dissenter would have

concluded the failure of the delivering physician to keep

adequate delivery records and obtain cord blood gases, which she

said were needed "to establish definitively the cause of

Taylor's injury," entitled claimant to a presumption that the

test results would have weighed in her favor.      She reasoned that

holding no such presumption applied because Dr. Beaver was not

technically a party "would render the Act more restrictive than

a civil proceeding for medical malpractice, where the

obstetrician would be a party."

                                  II.

                               ANALYSIS

                                  A.

 SUFFICIENCY OF EVIDENCE TO INVOKE CODE § 38.2-5008 PRESUMPTION

     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
                              - 12 -
            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, but not whether, 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
            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.

     Claimant contends the presumption applied for three

reasons.    First, she claims the Program conceded application of

the presumption.    Second, she claims the evidence before the

commission compelled a finding that her disability resulted from

                                - 13 -
perinatal birth asphyxia.   Finally, she contends the delivering

physician's failure to obtain an umbilical cord blood gas

entitled her to a presumption that the results of such a test

would have been favorable to her claim.   We consider each of

these arguments in turn.

              1.   "Judicial Admission" by the Program

     Claimant contends the program conceded application of the

Code § 38.2-5008 presumption in argument before the chief deputy

commissioner and that the chief deputy erred in failing to

incorporate this concession into her ruling.

     We hold this argument does not support a reversal for two

reasons.   First, claimant failed to raise this alleged error

before the commission.   Thus, Rule 5A:18 prevents her from

raising it for the first time in this Court.

     Second, claimant's argument quotes the Program's statements

out of context and is factually incorrect.   In the hearing

before the chief deputy, counsel for the Program spent

significant time outlining the Program's evidence and explaining

how and why that evidence established "noncompensability [of the

claim] in the sense of a nonhypoxic, nonasphy[x]ic event,

nonmechanical event to a reasonable degree of medical

certainty."   Further, the Program expressly argued against

claimant's spoliation claim relating to evidence claimant

averred would have proved oxygen deprivation.   The Program would

have had no reason to advance such arguments if it had conceded
                              - 14 -
that claimant's injury resulted from oxygen deprivation and that

the statutory presumption applied.   Viewed in this context, the

Program's statement, "[t]here is no dispute . . . that the

statute gives a rebuttable presumption to the claimant," was not

a concession that claimant's evidence was sufficient to entitle

her to the presumption.

        2.    Evidence of Oxygen Deprivation Causing Injury

     Before the Code § 38.2-5008 presumption that an injury is

birth-related comes into play, a claimant must prove that her

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 her disability resulted from mechanical injury

or injury to her spinal cord.   Thus, we consider only whether

the evidence, in the absence of any inferences to be drawn from

a spoliation of evidence claim, was sufficient to support the

commission's finding that claimant failed to prove her apparent

brain injury was caused by oxygen deprivation.

     "Claimant bore the burden of proving by a preponderance of

the evidence that [s]he suffered an oxygen deprivation.      That

evidence must establish a probability of oxygen deprivation, not

merely a possibility."    Kidder v. Virginia Birth-Related

Neurological Injury Comp. Pgm., 37 Va. App. 764, 778, 560 S.E.2d

907, 913 (2002).   As with any medical question before the

commission,


                                - 15 -
          "[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
          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, absent a spoliation inference, we find

credible evidence to support the commission's decision.

Claimant's experts opined that claimant's injury must have

resulted from birth-related oxygen deprivation only because they

were unable to find any other cause.   However, both Dr. Troyer

and the panel physicians opined that the lack of evidence

suggesting another cause did not convince them that oxygen

deprivation was the cause of Taylor's disability.     Thus, absent

application of a spoliation inference, credible evidence

supported the commission's decision that claimant did not prove

her injury resulted from oxygen deprivation.

              3.   Spoliation of Evidence Inference

     Virginia law recognizes a spoliation or missing evidence

inference, which provides that "[w]here one party has within his

control material evidence and does not offer it, there is [an
                              - 16 -
inference] that the evidence, if it had been offered, would have

been unfavorable to that party."   Charles E. Friend, The Law of

Evidence in Virginia § 10-17, at 338 (5th ed. 1999); see Jacobs

v. Jacobs, 218 Va. 264, 269, 237 S.E.2d 124, 127 (1977) (holding

principle is an inference rather than a presumption).

          In general, a party's conduct, so far as it
          indicates his own belief in the weakness of
          his cause, may be used against him as an
          admission, subject of course to any
          explanations he may be able to make removing
          that significance from his conduct. . . .
          "[Conduct showing the] [c]onceal[ment] or
          destr[uction] [of] evidential material is
          . . . admissible; in particular the
          destruction (spoliation) of documents as
          evidence of an admission that their contents
          are as alleged by the opponents." 1
          Greenleaf Ev. (16 Ed.), sec. 195, at 325.

Neece v. Neece, 104 Va. 343, 348, 51 S.E. 739, 740-41 (1905);

see also Blue Diamond Coal Co. v. Aistrop, 183 Va. 23, 28-29, 31

S.E.2d 297, 299 (1944) (in wrongful death action where party's

agents failed to procure evidence of cause of death presumed to

be available through autopsy authorized by decedent's wife but

not performed before embalming, allowing "inference that

[agents] at least thought [autopsy results] would be adverse to

their principal").

     "The textbook definition of 'spoliation' is 'the

intentional destruction of evidence[.'] . . .   However,

spoliation issues also arise when evidence is lost, altered or

cannot be produced."   Steve E. Couch, Spoliation of Evidence:

Is One Man's Trashing Another Man's Treasure, 62 Tex. B.J. 242,
                              - 17 -
243 & n.4 (1999).   Spoliation "encompasses [conduct that is

either] . . . intentional or negligent."    Karen Wells Roby &

Pamela W. Carter, Spoliation:    The Case of the Missing Evidence,

47 La. B.J. 222, 222 (1999).    A spoliation inference may be

applied in an existing action if, at the time the evidence was

lost or destroyed, "a reasonable person in the defendant's

position should have foreseen that the evidence was material to

a potential civil action."     Boyd v. Travelers Ins. Co., 652

N.E.2d 267, 270-71 (Ill. 1995) (citations omitted), quoted in

Robert L. Tucker, The Flexible Doctrine of Spoliation of

Evidence:   Cause of Action, Defense, Evidentiary Presumption,

and Discovery Sanction, 46 Def. L.J. 587, 603 (1997) (citing

Boyd language as representative of cases that have considered

issue).

     Claimant contends she was entitled to a spoliation

inference based on the failure of the delivering physician to

preserve umbilical cord blood and request cord blood gas

testing.    The Program responds that the delivering physician was

neither a party nor an agent of a party.    Because the Program

itself had no duty to see that the evidence was preserved or the

testing performed, it argues that the presumption may not be

applied to a proceeding under the Act.

     The commission found, based in part on "missing information

not in the record," that claimant failed to meet her burden of

proof, thereby implicitly rejecting the argument that it should
                              - 18 -
infer cord blood gas testing results would have been favorable

to claimant.   The commission did not state the reason for its

refusal to draw such an inference based on the spoliation claim.

Based on the requirement of Code § 38.2-5010 that the

commission's review shall be accompanied by "a statement of the

findings of fact, rulings of law and other matters pertinent to

the questions at issue," we conclude that, as to the issues on

which the commission's majority opinion was silent, its

affirmance of the chief deputy commissioner's denial of benefits

constituted an adoption of the deputy's reasoning.   The

dissenter's express opinion--that the delivering physician

should have been treated as a party for purposes of application

of a spoliation of evidence inference--supports the conclusion

that the majority's rejection of the inference was based on a

contrary belief that the physician should not be considered a

party.

     We previously considered in Kidder, albeit tangentially,

whether a missing evidence inference may be applied to a

claimant's duty to prove injury resulting from oxygen

deprivation under the Act.   Kidder involved an absence of

evidence of both an umbilical cord pH and fetal heart tracings

from the last twenty minutes preceding the infant's birth.   37

Va. App. at 780 n.6, 560 S.E.2d at 914 n.6.   There, we reasoned

as follows:


                               - 19 -
          Claimant complains that his claim should not
          be denied due to a lack of objective
          evidence of fetal distress because fetal
          heart tracings and . . . 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 that
          the fetal heart monitor was disconnected to
          permit the emergency cesarean section, and
          the panel opined that [the infant's]
          "vigorous condition" at birth "may well have
          been deemed adequate to verify his immediate
          condition" without obtaining "an umbilical
          cord pH."

Id. (emphasis added).

     Thus, we intimated in Kidder that a claimant would be

entitled to a spoliation inference on proof that the absence of

critical evidence "resulted from negligence or intentional

behavior on the part of a[] treating physician."   Id.   Although

we did not discuss the implications of the fact that a physician

is not directly a party to a claim for benefits under the Act,

we implicitly held that the physician need not be a party in

order for his actions to be relevant in assessing a claimant's

ability to meet his or her burden of proving entitlement to the

Code § 38.2-5008 presumption.   For the reasons that follow, we

conclude our implicit holding in Kidder remains sound.

     Although a delivering physician will never be a party to a

"claim . . . for compensation" under the Act, Code § 38.2-5001,

the Act is structured such that a delivering physician who is
                              - 20 -
also a participating physician under the Act is in privity with

a party--the Program.

            It is generally held that privity means a
            mutual or successive relationship to the
            same rights of property, or such an
            identification in interest of one person
            with another as to represent the same legal
            rights; and the term "privy" where applied
            to a judgment or decree refers to one whose
            interest has been legally represented at the
            trial.

Patterson v. Saunders, 194 Va. 607, 613, 74 S.E.2d 204, 208

(1953).    Because the Program is in privity with the physician, a

nonparty, invocation of the missing evidence inference against

the Program is appropriate.    Cf. Bd. of Supervisors v. Southern

Cross Coal Corp., 238 Va. 91, 96, 380 S.E.2d 636, 639 (1989)

("[A] surety, defending an obligee's suit on the principal's

bonded obligation, stands in the principal's shoes and may

assert only those defenses available to the principal.      Because

principal and surety are in privity, the defenses available to

both may be asserted by either."     (Citation omitted)).

     The Act expressly provides that, with certain exceptions

not relevant here, "the rights and remedies herein granted . . .

shall exclude all other rights and remedies of such infant, his

personal representative, parents, dependents, or next of kin, at

common law or otherwise arising out of or related to a medical

malpractice claim with respect to [a birth-related neurological]

injury."   Code § 38.2-5002(B).    The immunity from suit provided


                                  - 21 -
by the Act applies to all participating physicians. 1   Code

§ 38.2-5001.   Participating physicians are licensed Virginia

obstetricians who, inter alia, paid to the Program the annual

assessment required by the Act and "had in force an agreement

. . . whereby the physician agreed to submit to review by the

Board of Medicine" if the Board "determines that there is reason

to believe that the alleged injury resulted from, or was

aggravated by, substandard care on the part of the physician."

Code §§ 38.2-5001, -5004(B).   Thus, by virtue of the provisions

of the Act, the payment of an assessment to the Program, and the

existence of an agreement between the physician and the related

licensing arm of the Commonwealth, the Program is in privity

with the participating physician against whom a particular claim

is filed.

     A ruling that would not allow the Program to be held

responsible for a participating physician's failure to secure

important evidence would provide a physician with little

incentive to obtain or preserve evidence critical to an injured

party's ability to prove her claim under the Act.   But for the

Act, the physician would have such an incentive because a

claimant could sue the physician directly and the physician

would be a party against whom the claimant could assert the

right to a missing evidence inference under appropriate facts.


     1
       Physicians who choose not to participate in the Program
have no immunity from suit.
                              - 22 -
Applying such an inference to the Program encourages the Program

to address the issue with its participating physicians, either

routinely as a part of its agreement with each participating

physician or at least episodically by requesting Board review of

a participating physician who has negligently or intentionally

failed to secure important evidence in a particular case.    Thus,

allowing application of such an inference to the Program should

lessen the incentive a negligent physician might have to fail to

preserve relevant evidence.   As the dissenting commissioner

observed, a claimant's burden of proof under the Act should be

no greater than it would have been at common law.   Depriving a

claimant of the inference that missing evidence would have been

favorable to him would have just such a result.

     Thus, we remand to the commission to make the factual

findings necessary to determine whether the missing evidence

inference should apply and, if so, whether the evidence,

including the inference, entitles claimant to benefits.    We note

that Dr. Troyer's testimony, depending on how it is viewed by

the commission, could support a finding that Dr. Beaver was

negligent in failing to preserve umbilical cord blood for cord

blood gas testing.   Further, even if the inference applies, it

is up to the commission to determine whether the lack of

evidence of two of the four criteria required by the ACOG for a

finding of birth-related asphyxia precludes a finding of


                               - 23 -
birth-related asphyxia even with a presumed cord pH of less than

7.0.

                                III.

       For these reasons, we hold the Program did not concede

claimant's entitlement to the Code § 38.2-5008 presumption and

that the evidence, without an inference that the absent cord

blood gas testing would have shown oxygen deprivation, was

insufficient to prove claimant's entitlement to the Code

§ 38.2-5008 presumption.   However, we hold that such an

inference is available to a claimant under appropriate facts.

Thus, we remand to the commission to determine whether those

facts were present in this case and, if so, whether the

evidence, including the inference, was sufficient to prove

claimant's entitlement to the statutory presumption and benefits

under the Act.

                  Affirmed in part, reversed in part, and remanded.




                                - 24 -
