HUMPHREYS, Judge.
Appellants Women's Healthcare Associates, Inc. ("WHA"), Angela C. Bess, M.D. ("Dr. Bess"), and Loudoun Hospital Center d/b/a Inova Loudoun Hospital, Alysia M. Warfield, R.N., and Azam Dabirzadeh, R.N. ("Inova"), (collectively "appellants") appeal the decision of the Virginia Workers' Compensation Commission (the "commission") transferring Valerie Mucci's ("Mucci") personal injury claims to the Circuit Court of Loudoun County (the "circuit court"). The commission affirmed the deputy commissioner's finding that Mucci's claimed injuries were separate and distinct from her infant son's neurological injury, and thus did not fall under the exclusive remedy of the Virginia Birth-Related Neurological Injury Compensation Act of 1987 (the "Act"). For the following reasons, this Court affirms the commission's decision to transfer Mucci's personal injury claims to the circuit court.
Enacted by the General Assembly in 1987, the Act provides claimants with a no-fault remedy for compensation for qualified injuries. See Code § 38.2-5002. The Act also affords potential tort defendants (at least those who choose to participate in the Birth-Related Neurological Injury Compensation Fund under Code § 38.2-5015) with an absolute immunity to civil malpractice liability for these injuries. See Code § 38.2-5002(B). By delivering an infant in a participating hospital and/or through a participating physician, the infant's family automatically waives the right to bring a medical malpractice lawsuit against the participating physician or hospital if the infant incurs a birth injury that meets the definition in the Code. Wolfe v. Va. Birth-Related Neurological Injury Comp. Program, 40 Va.App. 565, 584, 580 S.E.2d 467, 476 (2003).
Mucci went to Loudoun Hospital Center on February 22, 2006 for a scheduled labor induction. Mucci was approximately forty weeks pregnant and was considered "postdate." Cervidil was placed to ripen Mucci's cervix followed by a Pitocin infusion to initiate
In addition to her son's injuries, Mucci claims that she suffered injuries during the course of the labor and delivery of her son. In her complaint and subsequent bill of particulars in the circuit court, Mucci stated that her uterine tissue was injured as a result of Dr. Bess's failure to "perform the cesarean section that was indicated" and by her decision to "continue Pitocin induction for an extended period of time instead of discontinuing it." Mucci also claimed that these medical decisions also caused uterine hyperstimulation and prolonged labor and resulted in worry and anxiety for Mucci's own well-being. Inova filed a motion to refer the matter to the commission pursuant to the Act, which the circuit court granted on May 25, 2010.
In a February 16, 2011 pleading to the commission, Mucci further explained that her claim was for "physical injuries to herself — a damaged uterus, physical pain, and permanent scarring and disfigurement of her uterus, which occurred during the course of labor and delivery" and emotional distress "related to the permanent injury of her uterus and the surrounding tissues, rather than emotional distress related to the injuries to her son." On the morning of the April 10, 2012 evidentiary hearing to determine jurisdiction of Mucci's claims, the parties exchanged expert designations. Appellants objected to the deputy commissioner's consideration of Mucci's expert opinions, arguing that the opinions were materially distinct from the claims pled in Mucci's complaint and bill of particulars in the circuit court. Mucci presented two expert reports from Dr. Richard Stokes and Dr. Douglas R. Phillips.
According to Dr. Stokes, Mucci experienced "prolonged hyperstimulation and tetanic contractions" which "caused increased stretching of the lower uterine segment and disruption of connective tissue resulting in damage to the uterine tissue." Dr. Stokes concluded that Mucci suffered "severe pain and suffering, as well as substantial concern for her own medical well-being" as a result of the prolonged hyperstimulation and tetanic contractions. Dr. Phillips's report summarized Mucci's injuries:
Appellants relied on the expert opinion of Dr. Norman Armstrong, who stated that Mucci's medical records indicate that Mucci's cesarean section in 2006 was "a direct result of the nonreassuring fetal heart rate and signs of fetal distress. The C-section was unrelated to the mother's individual status at the time. It was performed in a standard manner and its sequelae was typical of any C-section." Ultimately, the deputy commissioner overruled appellants' objection, allowing Mucci's expert reports to the extent they addressed whether Mucci's injuries were derivative of the infant's injuries. The deputy commissioner found that Mucci's claimed injuries were separate and distinct from her son's neurological injuries and therefore were not limited to the exclusive remedy provision of Code § 38.2-5002(B). The commission affirmed this ruling on May 29, 2014, and
In their first assignment of error, appellants challenge the commission's finding that Mucci could offer expert opinions as part of her petition under Code § 8.01-273.1. Pursuant to Code § 8.01-273.1(B), the party seeking referral must provide the commission with "appropriate assessments, evaluations, and prognoses and such other records obtained during discovery and are reasonably necessary for the determination of whether the infant has suffered a birth-related injury. The medical records and the pleading referenced in this subsection shall constitute a petition as referenced in § 38.2-5004." Because this assignment of error poses a question of law, the Court reviews the commission's decision de novo. NiSource, Inc. v. Thomas, 53 Va.App. 692, 711, 674 S.E.2d 581, 591 (2009).
Appellants collectively claim that the commission erred in considering Mucci's two expert reports arguing that the petition is comprised only of the initial and responsive pleadings of the parties and medical records. Specifically, appellants argue that the commission erred in allowing Mucci to substitute new allegations in her expert reports that were not previously raised in her complaint or bill of particulars in the circuit court.
Even without considering the expert reports, the commission found that "[t]here is ample information in the record transferred to the commission regarding the alleged injuries for which Valerie Mucci seeks a remedy." When there is evidence to support the commission's findings, they will not be disturbed on appeal, even though there may be evidence in the record to support a contrary finding. Caskey v. Dan River Mills, Inc., 225 Va. 405, 411, 302 S.E.2d 507, 510-11 (1983). Even when the deputy commissioner considered only the documents appellants rely on, the commissioner still arrived at the same conclusion — that Mucci's alleged injuries are non-derivative of her son's injuries.
Notably, appellants, not Mucci, referred this case to the commission. In interpreting Code § 38.2-5001, the commission has found that healthcare providers cannot be a claimant under this statute because they cannot represent the interests of the infant. In re: Subham Patel, No. B-09-05, 10 WC UNP B0905 (Va. Workers' Comp. Comm'n Nov. 22, 2010). This conclusion is "consistent with the language in § 38.2-5004(B) and (C) which says `upon receipt of the petition or the filing of a claim.'" Id. at *11 (emphasis added). Because Mucci's claims were transferred to the commission by appellants, Mucci did not file a complaint before the commission. Instead, appellants, who sought referral to the commission pursuant to the Act, filed a petition.
Code § 8.01-273.1(B) mandates that the party seeking referral provide the commission with "appropriate assessments, evaluations, and prognoses and such other records obtained during discovery and are reasonably necessary for the determination of whether the infant has suffered a birth-related injury. The medical records and the pleading referenced in this subsection shall constitute a petition as referenced in § 38.2-5004." Therefore, the "petition" includes all medical records and expert reports that can be characterized as assessments, evaluations, prognoses, and records that can be obtained during discovery. Appellants argue that Mucci's expert reports do not meet the definition of a "petition," because the expert reports relate to Mucci's injuries and not her infant son's. However, appellants are unable to point to any statutory language or case law that supports the proposition that the deputy commissioner is limited to considering only the "petition" to make a jurisdictional determination.
The General Assembly has authorized the commission "to hear and pass upon all claims
Finally, the commission's consideration of the entire record is consistent with the less rigid, informal nature of the pleading requirements of the commission. "Pleading requirements in administrative proceedings before the Industrial Commission are traditionally more informal than judicial proceedings... rigid or technical rules of pleading, evidence, or practice in the conduct of hearings shall not apply so long as the procedures adopted protect the substantial rights of the parties." Sergio's Pizza v. Soncini, 1 Va.App. 370, 376, 339 S.E.2d 204, 207 (1986) (internal citations omitted). Thus, the commission did not err in considering other documents in the record when making its determination of jurisdiction.
Appellants also claim that the commission erred in finding that issues regarding sufficiency of notice of Mucci's claim are matters to be resolved by the circuit court upon remand.
The commission's task was never to assess whether any of the appellants were negligent with regard to Mucci's injuries. Instead, the commission's sole task was to determine if Mucci's injuries were "separate and distinct" from her son's neurological injuries within the meaning of the Act. The deputy commissioner acknowledged this limited inquiry, stating, "I'm going to allow the expert reports only to the extent that they address the nature of the injury and whether or not they're probative in my determination of whether the injury is derivative." The fact that the expert reports expressed a different theory of negligence than stated in the circuit court pleadings had no relevance to the commission's determination of whether Mucci's injuries were separate and distinct from her infant's injuries.
Furthermore, appellants were on notice of Mucci's specific allegations of injury. It is clear from the medical records and bill of particulars that Mucci seeks damages for her alleged permanent disfigurement and damage to her uterus, and pain and worry about her own well-being. Mucci's February 16, 2011 pleading to the commission (submitted more than a year before the evidentiary hearing), further explained that her claim is for "physical injuries to herself — a damaged uterus, physical pain, and permanent scarring and disfigurement of her uterus, which occurred during the course of labor and delivery" and emotional distress "related to the permanent injury of her uterus and the surrounding tissues, rather than emotional distress related to the injuries to her son."
Appellants were provided with every opportunity to conduct discovery prior to the evidentiary hearing that the parties, themselves, requested. "Any party ... upon application
Additionally, any variance in the theory of negligence alleged in the complaint and expert reports was not relevant to the commission's jurisdictional determination. Proving such theories would be a necessary requirement for Mucci to prove in circuit court, not before the commission. Therefore, the commission did not err in finding that any issues of proof or notice are best left to the circuit court upon remand.
Appellants further argue that the commission erred in its application of the facts of the present case to the law set forth in the Act. As a result, this alleged error is a mixed question of fact and law and is therefore reviewed de novo. Young v. Va. Birth-Related Neurological Injury Comp. Program, 46 Va.App. 558, 569, 620 S.E.2d 131, 137 (2005). Appellants' third, fourth, fifth, sixth, and seventh assignments of error claim the commission erred in interpreting Code § 38.2-5002(B). The statute specifically states,
Code § 38.2-5002(B) (emphasis added).
When construing a statute, "`[c]ourts are not permitted to rewrite statutes. This is a legislative function. The manifest intention of the legislature, clearly disclosed by its language, must be applied. There can be no departure from the words used where the intention is clear.'" Barr v. Town & Country Props., Inc., 240 Va. 292, 295, 396 S.E.2d 672, 674 (1990) (quoting Anderson v. Commonwealth, 182 Va. 560, 566, 29 S.E.2d 838, 841 (1944)). Courts must also assume that the legislature chose, with care, the words it used when it enacted the relevant statute, and are bound by those words when interpreting the statute. Id.
Appellants have advanced three specific assignments of error to the commission's interpretation of Code § 38.2-5002(B) as it relates to whether a mother's injury claim is separate and distinct from the infant's injury. First, appellants claim that the commission erred in finding that Mucci's alleged injuries are "separate and distinct" from the child's neurological injuries.
The statute makes clear, "This subsection shall not be construed to exclude other rights and remedies available to the infant's mother arising out of or related to a physical injury, separate and distinct from an injury to the infant that is suffered by the infant's mother during the course of the infant's delivery." Code § 38.2-5002(B). The preceding sentence of the code section expressly states that the remedies granted to the infant shall exclude all other rights and remedies that may be available to other parties with respect to the infant's injury "arising out of or related to a medical malpractice claim with respect to such injury to the infant ... that... are derivative to the medical malpractice claim with respect to the infant's injury." Id. Read together, it follows that the "separate and distinct" claims of an injured child's mother that are not subject to the exclusive remedy of the Act, are distinct from the "derivative claims" "arising out of" a claim of injury to the infant, which are encompassed by the Act.
Appellants mistakenly argue that the correct inquiry under the Act is whether the claim of the parent arises out of or is related to the infant's medical malpractice claim. The term "medical malpractice claim" is qualified with the phrase "with respect to such injury to the infant." Code § 38.2-5002(B). Therefore, the medical malpractice claim must be causally related to the injury of the infant. This interpretation is consistent with this Court's previous holding that the phrase "arising out of" implicates a causation requirement and has been construed as referring to the "origin or cause of the injury." Cooper, 44 Va.App. at 278, 604 S.E.2d at 752 (citing Bradshaw v. Aronovitch, 170 Va. 329, 335, 196 S.E. 684, 686 (1938)). Thus, this Court must consider the origin of Mucci's injury rather than merely the origin of Mucci's medical malpractice claim as appellants suggest. The Virginia Supreme Court has considered the meaning of a derivative claim, holding it to be a claim "having no origin in itself, but one owing its existence to a preceding claim." Mahony v. Becker, 246 Va. 209, 212, 435 S.E.2d 139, 141 (1993) (citing Black's Law Dictionary 443 (6th ed.1990)).
In analyzing whether a mother's injury was separate and distinct from her infant's injury, this Court rejected a mother's claim for emotional distress stemming from her child's neurological injuries reasoning, "but for the injury to the child, appellant would have no claim of emotional distress." Cooper, 44 Va.App. at 279, 604 S.E.2d at 752. In that case, this Court found that the mother's injuries "flowed naturally from and was incidental to the birth-related neurological injury to her child." Id. In other words, the mother's claim was derivative of her child's injury claim and only existed because her child was born with neurological injuries.
Conversely, Mucci's claim for injuries to her uterine tissue and emotional stress relating to those injuries did not occur "but for" the birth-related neurological injury to her son. These claimed injuries could have also occurred with the delivery of an otherwise healthy child. The commission found that the "injuries [Ms. Mucci] allegedly sustained were not caused by the loss of oxygen to [her infant son's] brain but rather by the induction of labor and subsequent cesarean section. Her injuries did not flow naturally and incidentally from those her child suffered." It is clear from the face of the statute that
Appellants' sixth assignment of error alleges that the commission incorrectly interpreted the injury timing restrictions of Code § 38.2-5002(B), an issue of first impression for this Court. Specifically, appellants argue that the commission erred in concluding that Mucci's alleged injuries sustained during labor, and not delivery, are beyond the commission's jurisdiction.
Words in a statute are to be construed according to their ordinary meaning, given the context in which they are used. Grant v. Commonwealth, 223 Va. 680, 684, 292 S.E.2d 348, 350 (1982). "Where the legislature has used words of a plain and definite import the courts cannot put upon them a construction which amounts to holding the legislature did not mean what it has actually expressed." Watkins v. Hall, 161 Va. 924, 930, 172 S.E. 445, 447 (1934). The term "delivery" is defined as "the procedure of delivering the fetus and placenta by manual, instrumental, or surgical means."
Appellants limit the statutory language by focusing solely on the term "delivery" to conclude that Mucci's injury claims are encompassed by the Act. Yet, the plain language of the statute is, "during the course of the infant's delivery." Code § 38.2-5002(B). Adopting appellants' proposed interpretation of this statutory language to mean only the birth of a child, would render the phrase, "during the course of" completely meaningless. If the General Assembly intended to limit the statutory exclusion to a mother's injuries only occurring at the precise moment of delivery, the statute could have been easily written as "at delivery" or "at birth." Nonetheless, the legislature specifically included the phrase "during the course of," which is consistent with a more expansive inclusion of time, place, and circumstances.
Virginia jurisprudence is clear that, "where the question involves an interpretation which is within the specialized competence of the agency and the agency has been entrusted with wide discretion by the General Assembly, the agency's decision is entitled to special weight in the courts." Johnston-Willis, Ltd. v. Kenley, 6 Va.App. 231, 244, 369 S.E.2d 1, 8 (1988).
Va. Alcoholic Beverage Control Comm'n v. York St. Inn, Inc., 220 Va. 310, 315, 257 S.E.2d 851, 855 (1979).
The commission has exclusive jurisdiction to decide whether an infant's claim lies within the purview of the Act.Code § 38.2-5003. The legislature entrusted the commission with broad discretion in interpreting and enforcing the Act. In this role, the commission has consistently held that the key inquiry in determining whether a mother's claim is
As applied to Code § 38.2-5002(B), this Court affirms the commission's determination that limiting the interpretation of the language "during the course of delivery" to only the moment of the infant's birth would create an inconsistency with the definition of "birth related neurological injury," which can occur during labor, delivery, and resuscitation. This Court appropriately defers to the commission's consistent interpretation of the Act and its medical terms such as "during the course of delivery."
In their final assignment of error, appellants claim that the commission erred by basing its ruling that it lacks jurisdiction over Mucci's claims on "the fact that applying the Act to Ms. Mucci's personal injury claim would give her no remedy even if she proves her case."
Finding that the commission did not err in concluding that Mucci's claims were separate and distinct from her infant son's neurological injuries and thus, were not subject to the exclusive remedy of the Act, we affirm the commission's finding and decision to transfer Mucci's personal injury claims to the circuit court for resolution.
Affirmed.