Va. Code » Title 38.2. Insurance » Chapter 50. Virginia Birth-Related Neurological Injury Compensation Act
Virginia Code

Va. Code Ann. § 38.2-5008 (2026)

Determination of claims; presumption; finding of Virginia Workers' Compensation Commission binding on participants; medical advisory panel

✓ current as of May 2026
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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 § 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' 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 § 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 § 38.2-5009.

5. If the Commission determines (i) that the injury alleged is not a birth-related neurological injury as defined in § 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' 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 Virginia Health Sciences 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's panel on a case-by-case basis. The chair of the panel shall be determined by the school'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's members regarding whether the infant's injury does or does not satisfy each of the criteria of a birth-related neurological injury enumerated in such term's definition in § 38.2-5001. The report shall include the panel'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.

1987, c. 540; 1989, c. 523; 1990, cc. 534, 535; 2003, c. 897; 2008, cc. 267, 520; 2023, cc. 756, 778; 2026, c. 482.

Notes of Decisions
Cited in 31 cases (2 in the last 5 years), 1991–2024 · leading case: Commonwealth v. Bakke, 620 S.E.2d 107 (Va. Ct. App. 2005).
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Commonwealth v. Bakke, 620 S.E.2d 107 (Va. Ct. App. 2005). · cites it 78× “Code § 38.2-5008." We conclude that this claim lacks merit.”
Virginia Birth-Related Neurological Injury Comp. Prog. v. Young, 541 S.E.2d 298 (Va. Ct. App. 2001). · cites it 57× “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.”
Wolfe v. Virginia Birth-Related Neurological Injury Comp. Prog., 580 S.E.2d 467 (Va. Ct. App. 2003). · cites it 23× “irth-related brain *570 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; (8)…”
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004). · cites it 13× “This description of a prima facie case requires the factfinder to subjectively believe the evidence preponderates in the claimant’s favor, not merely to conclude that an objective, rational factfinder could so find. The subtle distinction between these two competing views of a…”
Kidder v. Virginia Birth-Related Neurological Injury Comp. Prog., 560 S.E.2d 907 (Va. Ct. App. 2002). · cites it 22× “” Also, he moved to dismiss the petition on the ground that claimant was not entitled to benefits because the version of Code §§ 38.2-5008 and -5009 in effect when Andrew was born required that both the hospital and the delivering physician be “participating” in the program and…”
Coffey v. Virginia Birth-Related Neurological Injury Comp. Prog., 558 S.E.2d 563 (Va. Ct. App. 2002). · cites it 21× “, an infant, who sues by Danielle Marie Trivette Coffey, his mother and next friend, contends (1) that the commission erred in assuming jurisdiction and deciding his claim without affording him legal counsel; and (2) that the commission erred in holding that the Birth-Related…”
Jeff Charles Hammer, M.D. v. D.S., Crystal Senecal, 796 S.E.2d 454 (Va. Ct. App. 2017). · cites it 16× “Sufficiency of Evidence to Rebut the Presumption of Oxygen Deprivation The Commission determined that although appellants met their burden of establishing the statutory presumption *401 under Code § 38.”
Spicer v. Virginia Birth-Related Neurological Injury Comp. Prog., 633 S.E.2d 732 (Va. Ct. App. 2006). · cites it 4× “Code § 38.2-5008(A)(4) then directs the commission to determine the amount of any “compensation” awardable under Code § 38.”
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004). · cites it 7× “Code § 38.2-5008(A)(5) (emphasis added). In this case, Kyle was bom at home without the aid of a physician.”
Cooper v. Adler, 604 S.E.2d 747 (Va. Ct. App. 2004). · cites it 4× “Once the matter is properly before the commission, Code § 38.2-5008 requires the commission to determine, among other things, if the “injury claimed is a birth-related neurological injury.”
John P. Kavanaugh, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 728 S.E.2d 527 (Va. Ct. App. 2012). · cites it 6× “, and each of Virginia’s "medical schools shall maintain a review panel of physicians to review claims, with responsibility for reviewing claims rotating among each medical school’s panel on a case-by-case basis” and the "Commission shall direct the Program to pay to the medical…”
King v. Virginia Birth-Related Neurological Injury Comp. Prog., 410 S.E.2d 656 (Va. 1991). · cites it 2× “Code §§ 38.2-5008 and -5009. Each participating physician is required to pay an annual assessment of $5,000 to the Program.”
Show all 31 citing cases →
Va. Code Ann. § 38.2-5008(1): 1 case
John P. Kavanaugh, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 728 S.E.2d 527 (Va. Ct. App. 2012). “, and each of Virginia’s "medical schools shall maintain a review panel of physicians to review claims, with responsibility for reviewing claims rotating among each medical school’s panel on a case-by-case basis” and the "Commission shall direct the Program to pay to the medical…”
Va. Code Ann. § 38.2-5008(A): 6 cases
Virginia Birth-Related Neurological Injury Comp. Prog. v. Young, 541 S.E.2d 298 (Va. Ct. App. 2001). “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.”
Kidder v. Virginia Birth-Related Neurological Injury Comp. Prog., 560 S.E.2d 907 (Va. Ct. App. 2002). “” Also, he moved to dismiss the petition on the ground that claimant was not entitled to benefits because the version of Code §§ 38.2-5008 and -5009 in effect when Andrew was born required that both the hospital and the delivering physician be “participating” in the program and…”
Parson v. Miller, 822 S.E.2d 169 (Va. 2018).
VA Birth-Related Neuro. Injury Comp. Prgm v. Young (Va. Ct. App. 2001).
Virginia Birth-Related Neurological Injury Comp. Prog. v. Allen McGrady (Va. Ct. App. 2006).
Va. Code Ann. § 38.2-5008(A)(1): 14 cases
Commonwealth v. Bakke, 620 S.E.2d 107 (Va. Ct. App. 2005). “Code § 38.2-5008." We conclude that this claim lacks merit.”
Virginia Birth-Related Neurological Injury Comp. Prog. v. Young, 541 S.E.2d 298 (Va. Ct. App. 2001). “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.”
Coffey v. Virginia Birth-Related Neurological Injury Comp. Prog., 558 S.E.2d 563 (Va. Ct. App. 2002). “, an infant, who sues by Danielle Marie Trivette Coffey, his mother and next friend, contends (1) that the commission erred in assuming jurisdiction and deciding his claim without affording him legal counsel; and (2) that the commission erred in holding that the Birth-Related…”
Wolfe v. Virginia Birth-Related Neurological Injury Comp. Prog., 580 S.E.2d 467 (Va. Ct. App. 2003). “irth-related brain *570 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; (8)…”
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004). “This description of a prima facie case requires the factfinder to subjectively believe the evidence preponderates in the claimant’s favor, not merely to conclude that an objective, rational factfinder could so find. The subtle distinction between these two competing views of a…”
Va. Code Ann. § 38.2-5008(A)(1)(a): 8 cases
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004). “This description of a prima facie case requires the factfinder to subjectively believe the evidence preponderates in the claimant’s favor, not merely to conclude that an objective, rational factfinder could so find. The subtle distinction between these two competing views of a…”
Chippenham & Johnston-Willis v. Va. Birth-Related (Va. Ct. App. 2004).
Cent. Va. Obstetrics,et al v. Lawanda P. Whitfiel (Va. Ct. App. 2004).
Danville Reg'l Med. Ctr. v. Virginia Birth-Related Neurological Injury (Va. Ct. App. 2009).
Felicia N. Speller v. Sentara Norfolk Gen. Hosp. (Va. Ct. App. 2024).
Va. Code Ann. § 38.2-5008(A)(4): 3 cases
Spicer v. Virginia Birth-Related Neurological Injury Comp. Prog., 633 S.E.2d 732 (Va. Ct. App. 2006). “Code § 38.2-5008(A)(4) then directs the commission to determine the amount of any “compensation” awardable under Code § 38.”
John P. Kavanaugh, Jr. v. Virginia Birth-Related Neurological Injury Comp. Prog., 728 S.E.2d 527 (Va. Ct. App. 2012). “, and each of Virginia’s "medical schools shall maintain a review panel of physicians to review claims, with responsibility for reviewing claims rotating among each medical school’s panel on a case-by-case basis” and the "Commission shall direct the Program to pay to the medical…”
Jordyn Spicer, etc. v. Virginia Birth-Related Neurological Injury Comp. Prog. (Va. Ct. App. 2006).
Va. Code Ann. § 38.2-5008(A)(5): 2 cases
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004). “Code § 38.2-5008(A)(5) (emphasis added). In this case, Kyle was bom at home without the aid of a physician.”
Meador v. Birth-related Injury, 604 S.E.2d 88 (Va. Ct. App. 2004).
Va. Code Ann. § 38.2-5008(A)(5)(ii): 2 cases
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004). “Code § 38.2-5008(A)(5) (emphasis added). In this case, Kyle was bom at home without the aid of a physician.”
Meador v. Birth-related Injury, 604 S.E.2d 88 (Va. Ct. App. 2004).
Va. Code Ann. § 38.2-5008(A)(l): 6 cases
Coffey v. Virginia Birth-Related Neurological Injury Comp. Prog., 558 S.E.2d 563 (Va. Ct. App. 2002). “, an infant, who sues by Danielle Marie Trivette Coffey, his mother and next friend, contends (1) that the commission erred in assuming jurisdiction and deciding his claim without affording him legal counsel; and (2) that the commission erred in holding that the Birth-Related…”
Kidder v. Virginia Birth-Related Neurological Injury Comp. Prog., 560 S.E.2d 907 (Va. Ct. App. 2002). “” Also, he moved to dismiss the petition on the ground that claimant was not entitled to benefits because the version of Code §§ 38.2-5008 and -5009 in effect when Andrew was born required that both the hospital and the delivering physician be “participating” in the program and…”
Wolfe v. Virginia Birth-Related Neurological Injury Comp. Prog., 580 S.E.2d 467 (Va. Ct. App. 2003). “irth-related brain *570 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; (8)…”
Virginia Birth-Related Neurological Injury Comp. Prog. v. Young, 541 S.E.2d 298 (Va. Ct. App. 2001). “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.”
Meador v. Virginia Birth-Related Neurological Injury Comp. Prog., 604 S.E.2d 88 (Va. Ct. App. 2004). “Code § 38.2-5008(A)(5) (emphasis added). In this case, Kyle was bom at home without the aid of a physician.”
Va. Code Ann. § 38.2-5008(A)(l)(a): 2 cases
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004). “This description of a prima facie case requires the factfinder to subjectively believe the evidence preponderates in the claimant’s favor, not merely to conclude that an objective, rational factfinder could so find. The subtle distinction between these two competing views of a…”
Jeff Charles Hammer, M.D. v. D.S., Crystal Senecal, 796 S.E.2d 454 (Va. Ct. App. 2017). “Sufficiency of Evidence to Rebut the Presumption of Oxygen Deprivation The Commission determined that although appellants met their burden of establishing the statutory presumption *401 under Code § 38.”
Va. Code Ann. § 38.2-5008(B): 7 cases
Kidder v. Virginia Birth-Related Neurological Injury Comp. Prog., 560 S.E.2d 907 (Va. Ct. App. 2002). “” Also, he moved to dismiss the petition on the ground that claimant was not entitled to benefits because the version of Code §§ 38.2-5008 and -5009 in effect when Andrew was born required that both the hospital and the delivering physician be “participating” in the program and…”
Wolfe v. Virginia Birth-Related Neurological Injury Comp. Prog., 580 S.E.2d 467 (Va. Ct. App. 2003). “irth-related brain *570 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; (8)…”
Coffey v. Virginia Birth-Related Neurological Injury Comp. Prog., 558 S.E.2d 563 (Va. Ct. App. 2002). “, an infant, who sues by Danielle Marie Trivette Coffey, his mother and next friend, contends (1) that the commission erred in assuming jurisdiction and deciding his claim without affording him legal counsel; and (2) that the commission erred in holding that the Birth-Related…”
Jeff Charles Hammer, M.D. v. D.S., Crystal Senecal, 796 S.E.2d 454 (Va. Ct. App. 2017). “Sufficiency of Evidence to Rebut the Presumption of Oxygen Deprivation The Commission determined that although appellants met their burden of establishing the statutory presumption *401 under Code § 38.”
Danville Reg'l Med. Ctr. v. Virginia Birth-Related Neurological Injury (Va. Ct. App. 2009).
Va. Code Ann. § 38.2-5008(C): 6 cases
Cent. Virginia Obstetrics & Gynecology Assocs., P.C. v. Whitfield, 590 S.E.2d 631 (Va. Ct. App. 2004). “This description of a prima facie case requires the factfinder to subjectively believe the evidence preponderates in the claimant’s favor, not merely to conclude that an objective, rational factfinder could so find. The subtle distinction between these two competing views of a…”
Spicer v. Virginia Birth-Related Neurological Injury Comp. Prog., 633 S.E.2d 732 (Va. Ct. App. 2006). “Code § 38.2-5008(A)(4) then directs the commission to determine the amount of any “compensation” awardable under Code § 38.”
Jeff Charles Hammer, M.D. v. D.S., Crystal Senecal, 796 S.E.2d 454 (Va. Ct. App. 2017). “Sufficiency of Evidence to Rebut the Presumption of Oxygen Deprivation The Commission determined that although appellants met their burden of establishing the statutory presumption *401 under Code § 38.”
Jordyn Spicer, etc. v. Virginia Birth-Related Neurological Injury Comp. Prog. (Va. Ct. App. 2006).
Chippenham & Johnston-Willis v. Va. Birth-Related (Va. Ct. App. 2004).
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