Eligibility

Admission into the Program is determined solely by the Virginia Workers’ Compensation Commission based on criteria outlined in state law. The law provides that awards under the Program are exclusive. That means that if an injury is covered by the Program, the child and his or her family are not entitled to compensation from a malpractice lawsuit. Instead, the child is eligible for a lifetime of benefits from the Virginia Birth-Related Neurological Injury Compensation Program.

Key Points of the Virginia Law

• Child delivered by a participating doctor or hospital
• Child who suffered a birth-related neurological injury, as defined by Virginia law
• Injury must have resulted from oxygen deprivation or mechanical injury during labor, delivery, immediate post delivery
• Child must be permanently motorically disabled and developmentally disabled or cognitively disabled
• Child must need assistance with all daily living activities

Benefits

Covered Services/Expenses for
an Awarded Claim

• Medical
• Hospital
• Rehabilitation/Therapy
• Residential and custodial care
• Compensation for lost earnings,
  ages 18 to 65
• Special equipment or facilities
• Reasonable claim filing costs
  (including attorney’s fees)
• Medically necessary travel

Expenses not covered

• Expenses covered by other government programs
• Expenses covered by prepaid health plans or HMOs
• Expenses covered by private insurance

Claims

A petition to enter the Program may only be filed with the Virginia Workers’ Compensation Commission. While legal representation is generally recommended and in many cases will be paid for by the Birth-Injury Program, it is not required. Filing a petition begins a process that includes:

• A review of the case by a panel of expert physicians from one of three in-state medical schools
• A review by the administrative side of the Birth-Injury Program
• An initial hearing by a WCC administrative judge within 120 days of filing the petition
• Workers’ Compensation Commission issues a decision on eligibility and admission.

Once the administrative judge makes a decision, either party may file an appeal. The first appeal is to the full Commission. Next the decision may be appealed to the Virginia Court of Appeals, and finally it may be submitted to the Virginia Supreme Court.

  Click here for a chart of the entry process.

Frequently Asked Questions

Is there an application form?

A peition form is now available from the Virginia Workers' Compensation Commission. According to the Virginia Code, all "applications" must be made by filing a petition for entry with the Virginia Workers' Compensation Commission. Requirements for the petition are listed in subsection 38.2-5004. A copy of the Code is available on this website.

What do I put in the petition?

Write in the petition exactly what is asked for in subsection 38.2-5004.

Is there a filing fee?

Yes there is a $15 filing fee required by law to be paid to the Virginia Workers' Compensation Commission.

Do I have to provide medical records?

Yes. All available relevant medical records must be provided by the petitioner.  The Virginia Workers Compensation Commission can tell you how many complete copies of the records are needed.

Do I need a lawyer to file a petition?

A lawyer is not required, however it is recommended. If the claimant is placed in the Birth-Injury Program, reasonable legal fees may be available.

Can the Birth-Injury Program provide referrals for lawyers?

No. The Birth-Injury Program does not recommend or endorse any specific lawyers. However you may want to contact the the Virginia Lawyer Referral Service operated by the Virginia State Bar. The number is 800-552-7977.

Is there time limit for filing a petition?

Yes. According to law, all petitions for entry must be filed prior to the claimant's 10th birthday.

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Disclaimer
All information on this website is intended for general informational purposes only and should not be considered legally binding, legal advice, nor substitute for obtaining legal advice from competent legal counsel. Although reasonable efforts are made to keep information on this site accurate, no guarantee is made as to its accuracy.

©2003 Virginia Birth-Related Neurological Injury Compensation Program