Eligibility
Admission into the Program is determined exclusively by the Virginia Workers’ Compensation Commission, based on criteria established in state law. Under the law, awards through the Program are exclusive—meaning that if an injury qualifies for coverage, the child and their family are not entitled to pursue compensation through a malpractice lawsuit. Instead, the child becomes eligible for a lifetime of benefits provided by the Virginia Birth-Related Neurological Injury Compensation Program. Petition ProcessEligibility FAQKey Points of the Virginia Law
To qualify, the following criteria must be met:
- The child was delivered by a participating doctor or hospital
- The child suffered a birth-related neurological injury as defined by Virginia law
- The injury resulted from oxygen deprivation or mechanical injury during labor, delivery, or the immediate post-delivery period
- The child is permanently motorically disabled and also developmentally or cognitively disabled
- The child requires assistance with all activities of daily living
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 prepaid health plans or HMOs
- Expenses covered by private insurance
Process
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:
Review
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
Hearing
A formal hearing is held before a judge with the Virginia Workers’ Compensation Commission (WCC).
Both parties may present evidence and testimony during this hearing.
Decision
The WCC judge issues a decision on the child’s eligibility for admission into the Program.
Appeals
Either party may appeal the decision.
The first appeal goes to the full Workers’ Compensation Commission.
Further appeals may be made to the Virginia Court of Appeals, and finally, to the Virginia Supreme Court.
Process Flow Chart
Eligibility – FAQ
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Is there an application form?
The Virginia Workers’ Compensation Commission now offers a petition form. According to the Virginia Code, all “applications” must be made by filing a petition for entry with the Commission. The requirements for the petition are listed in subsection 38.2-5004.
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.
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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 Virginia Lawyer Referral Service operated by the Virginia State Bar. The number is (800) 552-7977.
Is there a time limit for filing a petition?
Yes, according to law, all petitions for entry must be filed prior to the claimant’s 10th birthday.
Information
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.