38.2-5008 - Determination of claims; presumption; finding of Virginia Workers' Compensation Commission binding on participants; medical advisory panel.
§ 38.2-5008. Determination of claims; presumption; finding of VirginiaWorkers' Compensation Commission binding on participants; medical advisorypanel.
A. The Commission shall determine, on the basis of the evidence presented toit, the following issues:
1. Whether the injury claimed is a birth-related neurological injury asdefined in § 38.2-5001.
a. A rebuttable presumption shall arise that the injury alleged is abirth-related neurological injury where it has been demonstrated, to thesatisfaction of the Virginia Workers' Compensation Commission, that theinfant has sustained a brain or spinal cord injury caused by oxygendeprivation or mechanical injury, and that the infant was thereby renderedpermanently motorically disabled and (i) developmentally disabled or (ii) forinfants sufficiently developed to be cognitively evaluated, cognitivelydisabled.
If either party disagrees with such presumption, that party shall have theburden of proving that the injuries alleged are not birth-relatedneurological injuries within the meaning of the chapter.
b. A rebuttable presumption of fetal distress, an element of a birth-relatedinjury, shall arise if the hospital fails to provide the fetal heart monitortape to the claimant, as required by subsection E of § 38.2-5004.
2. Whether obstetrical services were delivered by a participating physicianat the birth.
3. Whether the birth occurred in a participating hospital.
4. How much compensation, if any, is awardable pursuant to § 38.2-5009.
5. If the Commission determines (i) that the injury alleged is not abirth-related neurological injury as defined in § 38.2-5001, or (ii) thatobstetrical services were not delivered by a participating physician at thebirth and that the birth did not occur in a participating hospital, it shalldismiss the petition and cause a copy of its order of dismissal to be sentimmediately to the parties by registered or certified mail.
6. All parties are bound for all purposes including any suit at law against aparticipating physician or participating hospital, by the finding of theVirginia Workers' Compensation Commission (or any appeal therefrom) withrespect to whether such injury is a birth-related neurological injury.
B. The deans of the schools of medicine of the Eastern Virginia MedicalSchool, University of Virginia School of Medicine, and Medical College ofVirginia of Virginia Commonwealth University shall develop a plan wherebyeach claim filed with the Commission is reviewed by a panel of threequalified and impartial physicians drawn from the fields of obstetrics,pediatrics, pediatric neurology, neonatology, physical medicine andrehabilitation, or any other specialty particularly appropriate to the factsof a particular case. Such plan shall provide that each of the threeaforementioned medical schools shall maintain a review panel of physicians toreview claims, with responsibility for reviewing claims rotating among eachmedical school's panel on a case-by-case basis. The chair of the panel shallbe determined by the school's dean. In no event shall the panel contain morethan one panel member from the field of obstetrics. The Commission shalldirect the Program to pay to the medical school that performed the assessmentand prepared a report in conformity with this provision the sum of $3,000 perclaim reviewed.
C. The panel created pursuant to subsection B shall prepare a report thatprovides a detailed statement of the opinion of the panel's members regardingwhether the infant's injury does or does not satisfy each of the criteria ofa birth-related neurological injury enumerated in such term's definition in §38.2-5001. The report shall include the panel's basis for its determinationof whether each such criteria was or was not satisfied. In addition, thereport shall include such supporting documentation as the board of directorsof the program may reasonably request. The panel shall file its report withthe Commission 60 days from the date the petition was filed with theCommission. At the same time that the panel files its report with theCommission, the panel shall send copies thereof to the Program and allparties in the proceeding. At the request of the Commission, at least onemember of the panel shall be available to testify at the hearing. TheCommission shall consider, but shall not be bound by, the recommendation ofthe panel.
(1987, c. 540; 1989, c. 523; 1990, cc. 534, 535; 2003, c. 897; 2008, cc. 267,520.)