Com. v. Bakke

• Decision Date: 27 September 2005
• Docket Number: Record No. 2351-04-4.
• Citation: 620 S.E.2d 107,46 Va. App. 508
• Court: Virginia Supreme Court
• Parties: COMMONWEALTH of Virginia, Virginia Birth-Related Neurological Injury Compensation Program and Virginia Birth-Related Neurological Program Board v. Michele BAKKE, Jonathan Bakke, Susan L. Rattner, M.D., Women Physicians of Northern Virginia, P.C. and Reston Hospital Center, LLC d/b/a Reston Hospital Center and/or Columbia Reston Hospital Center.

Page 107

620 S.E.2d 107

46 Va. App. 508

COMMONWEALTH of Virginia, Virginia Birth-Related Neurological Injury Compensation Program and Virginia Birth-Related Neurological Program Board v. Michele BAKKE, Jonathan Bakke, Susan L. Rattner, M.D., Women Physicians of Northern Virginia, P.C. and Reston Hospital Center, LLC d/b/a Reston Hospital Center and/or Columbia Reston Hospital Center.

Record No. 2351-04-4.

Court of Appeals of Virginia, Alexandria.

September 27, 2005.

Carla R. Collins, Assistant Attorney General (Jerry W. Kilgore, Attorney General Francis S. Ferguson, Deputy Attorney General, on briefs), for appellant.

Lesley S. Zork (Bruce J. Klores; Bruce J. Klores & Associates, P.C., on brief), Washington, DC, for appellees Michele Bakke and Jonathan Bakke.

Joyce A.N. Massey (Susan L. Mitchell; McCarthy, Massey & Mitchell, P.C., on brief), for appellees Susan L. Rattner, M.D. and Women Physicians of Northern Virginia, P.C.

No brief or argument for appellee Reston Hospital Center, LLC d/b/a Reston Hospital Center and/or Columbia Reston Hospital Center.

Present: BENTON and HALEY, JJ., and ROSENBLATT, Retired Judge.^*

JAMES W. BENTON, JR., Judge.

The Workers' Compensation Commission awarded benefits and expenses under the Virginia Birth-Related Neurological Compensation Act, Code §§ 38.2-5009 through 38.2-5021, to Michele Bakke and Jonathan Bakke, parents and next friends of Jenna Marie Bakke. The Commonwealth of Virginia, Virginia Birth-Related Neurological Injury Compensation Program, and the Virginia Birth-Related Neurological Injury Compensation Program Board (collectively designated "the Program") contend the commission erred (1) in applying the Act's rebuttable presumption that the infant's injury is a birth-related neurological injury, (2) in finding that some of the physicians were the most qualified to evaluate the timing of the infant's injury, (3) in concluding that evidence was insufficient to rebut the presumption, and (4) in finding that the Program failed to prove a specific non-birth-related cause of the injury. We affirm the commission's award.

I.

During her pregnancy, Michele Bakke received a diagnosis of HELLP syndrome (hemolysis, elevated liver enzyme levels and low platelet count) and preeclampsia. Because of the life-threatening dangers to Bakke and her child associated with these conditions and because of Bakke's low platelet count, physicians delivered her child by cesarian section without labor. At her birth on September 2, 1999, the infant's gestational age was estimated to be twenty-nine weeks. She weighed .885 kilograms and was 33 centimeters long. The medical records indicate the infant had "NO RESPIRATION" at delivery and was intubated immediately. A handwritten note included within the delivery records shows that she "did make some resp effort." At that time, the infant's Apgar score was five. Five minutes after birth, her Apgar score was seven. When the infant was admitted to the neonatal intensive care unit, a note indicated her condition as "responsive in severe respiratory distress." The infant's chest x-ray report indicated "WHITE OUT LUNGS," and the infant was put on a ventilator, where she remained for a month. The discharge summary noted diagnoses for twelve diseases or conditions.

The medical records from the period of the infant's birth to her discharge from the hospital on December 7, 1999 are extensive. Likewise, the commission's record contains extensive testimony, reports, and other documents from physicians regarding the infant's condition at birth and later. In two succinct sentences, the commission addressed the nub of the issue in this case:

The medical professionals who have evaluated [the infant's] medical history disagree regarding when and how [she] actually sustained the injury causing her cerebral palsy. While Dr. [James T.] Christmas and the members of the [medical panel] who reviewed [the infant's] case have opined that [she] did not sustain an injury during the course of her labor, delivery, resuscitation or immediately after her birth, Dr. [J. Peter] VanDorsten, Dr. [Daniel] Lefton, Dr. [M. Elizabeth] Latimer and Dr. [Marcus C.] Hermansen have all opined that [she] was injured around the time of her birth.

In a lengthy opinion, the commission reviewed in detail the medical evidence and found that the more persuasive opinions were rendered by those physicians who opined that the damage to the infant's brain was caused at birth. The Program contends that the commission's reasoning is flawed and that the award should be reversed.

II.

The Virginia Birth-Related Neurological Injury Compensation Act provides compensation to families whose infants suffer "birth-related neurological injuries" caused by a participating physician or a participating hospital. Code §§ 38.2-5000 to 38.2-5021. A "birth-related neurological injury" is defined as follows:

[I]njury 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 § 38.2-5001. Thus, to satisfy this statutory definition the following four factors necessarily must be established:

(1) The infant sustained "an injury to the brain or spinal cord" that was "caused by deprivation of oxygen or mechanical injury."

(2) The injury occurred "in the course of labor, delivery or resuscitation necessitated by a deprivation of oxygen or mechanical injury that occurred in the course of labor or delivery, in a hospital."

(3) The injury rendered the infant "permanently motorically disabled and (i) developmentally disabled or (ii) for infants sufficiently developed to be cognitively evaluated, cognitively disabled."

(4) Such disability caused "the infant to be permanently in need of assistance in all activities of daily living."

Central Virginia Obstetrics & Gynecology Assoc., P.C. v. Whitfield, 42 Va.App. 264, 273, 590 S.E.2d 631, 635-36 (2004) (quoting Code § 38.2-5001) (footnote omitted).

III.

Initially, we address the Program's contention that the commission "err[ed] in applying the presumption set forth in . . . Code § 38.2-5008." We conclude that this claim lacks merit.

"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." Wolfe v. Virginia Birth-Related Neuro. Injury Comp. Pgm., 40 Va.App. 565, 578, 580 S.E.2d 467, 473 (2003). This presumption is described by the statute 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.

Code § 38.2-5008(A)(1). "Once the presumption applies, the burden of proof shifts to the party opposing the presumption to disprove elements two and four[, as listed in Part II above], and thereby establish `that the injuries alleged are not birth-related neurological injuries within the meaning of the chapter.'" Whitfield, 42 Va. App. at 273, 590 S.E.2d at 636 (quoting Wolfe, 40 Va.App. at 578, 580 S.E.2d at 474 and Code § 38.2-5008(A)(1)).

On its review, the commission ruled that the deputy commissioner "concluded that the medical evidence predominated in establishing that the presumption provided in Code § 38.2-5008 applies to [the infant's] case and the program has not requested review of that finding." Credible evidence in the record supports this ruling.

The deputy commissioner found after considering the three volumes of medical records plus all of the expert medical opinions . . ., that the infant is entitled to the rebuttable presumption that her injury as alleged is a birth-related neurological injury caused by oxygen deprivation . . .[,] that the infant is both developmentally and cognitively disabled . . .[, and that the] physicians and hospital also participated in the Program.

The deputy commissioner expressly relied upon the opinions of Drs. VanDorsten, Latimer, Lefton, and Hermansen to support these findings.

On the commission's review, the Program asserted in its written statement that the deputy commissioner's "ruling is consistent with and founded upon a correct application of the law and. . . credible evidence." The Program's written statement concluded "that the rulings of [the deputy commissioner] . . . should be sustained and affirmed in full." This unambiguous, express language in the Program's written statement supports the commission's finding that the issue of the infant's entitlement to the rebuttable presumption was not raised by the Program at the commission's review.

Rule 5A:18 bars our review of issues that were not put "before the commission on review in [the party's] written statement or its reply to the [other party's] written statement . . . [and that were] not considered by the full commission." Berner v. Mills, 38 Va. App. 11, 18, 560 S.E.2d 925, 928 (2002). See also Williams v. Gloucester Sheriff's Dep't, 266 Va. 409, 411, 587 S.E.2d 546, 548 (2003) (noting that parties may raise issues before the commission by motions to reconsider); Overhead Door Co. of Norfolk v. Lewis, 29 Va.App. 52, 62, 509 S.E.2d 535, 539-40 (1999) (same); Steadman v. Liberty Fabrics, Inc., 41 Va.App. 796, 806 n.3, 589 S.E.2d 465, 467 n.3 (2003) (noting failure of the party to appeal an issue decided adversely by the deputy...