                                 CODE OF VIRGINIA

DETERMINATION OF CLAIMS; PRESUMPTION; FINDING OF VIRGINIA WORKERS&#8217;
COMPENSATION COMMISSION BINDING ON PARTICIPANTS; MEDICAL ADVISORY PANEL (§
38.2-5008)

A. The Commission shall determine, on the basis of the evidence presented to it,
the following issues:

   1. Whether the injury claimed is a birth-related neurological injury as
   defined in &#xA7; 38.2-5001.
   				a. 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&#8217; 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.
   				b. A rebuttable presumption of fetal distress, an element of a
   birth-related injury, shall arise if the hospital fails to provide the fetal
   heart monitor tape to the claimant, as required by subsection E of &#xA7;
   38.2-5004.

   2. Whether obstetrical services were delivered by a participating physician at
   the birth.

   3. Whether the birth occurred in a participating hospital.

   4. How much compensation, if any, is awardable pursuant to &#xA7; 38.2-5009.

   5. If the Commission determines (i) that the injury alleged is not a
   birth-related neurological injury as defined in &#xA7; 38.2-5001, or (ii) that
   obstetrical services were not delivered by a participating physician at the
   birth and that the birth did not occur in a participating hospital, it shall
   dismiss the petition and cause a copy of its order of dismissal to be sent
   immediately to the parties by registered or certified mail.

   6. All parties are bound for all purposes including any suit at law against a
   participating physician or participating hospital, by the finding of the
   Virginia Workers&#8217; Compensation Commission (or any appeal therefrom) with
   respect to whether such injury is a birth-related neurological injury.

B. The deans of the schools of medicine of the Eastern Virginia Health Sciences
Center at Old Dominion University, University of Virginia School of Medicine,
and Medical College of Virginia of Virginia Commonwealth University shall
develop a plan whereby each claim filed with the Commission is reviewed by a
panel of three qualified and impartial physicians drawn from the fields of
obstetrics, pediatrics, pediatric neurology, neonatology, physical medicine and
rehabilitation, or any other specialty particularly appropriate to the facts of
a particular case. Such plan shall provide that each of the three aforementioned
medical schools shall maintain a review panel of physicians to review claims,
with responsibility for reviewing claims rotating among each medical
school&#8217;s panel on a case-by-case basis. The chair of the panel shall be
determined by the school&#8217;s dean. In no event shall the panel contain more
than one panel member from the field of obstetrics. The Commission shall direct
the Program to pay to the medical school that performed the assessment and
prepared a report in conformity with this provision the sum of $3,000 per claim
reviewed.

C. The panel created pursuant to subsection B shall prepare a report that
provides a detailed statement of the opinion of the panel&#8217;s members
regarding whether the infant&#8217;s injury does or does not satisfy each of the
criteria of a birth-related neurological injury enumerated in such term&#8217;s
definition in &#xA7; 38.2-5001. The report shall include the panel&#8217;s basis
for its determination of whether each such criteria was or was not satisfied. In
addition, the report shall include such supporting documentation as the board of
directors of the program may reasonably request. The panel shall file its report
with the Commission 60 days from the date the petition was filed with the
Commission. At the same time that the panel files its report with the
Commission, the panel shall send copies thereof to the Program and all parties
in the proceeding. At the request of the Commission, at least one member of the
panel shall be available to testify at the hearing. The Commission shall
consider, but shall not be bound by, the recommendation of the panel.

HISTORY: 1987, c. 540; 1989, c. 523; 1990, cc. 534, 535; 2003, c. 897; 2008, cc.
267, 520; 2023, cc. 756, 778.