Commonwealth v. Bakke

I

CONCURRENCE

I concur in the majority’s view “that credible evidence ... supports the commission’s finding that the Program did not present for review the deputy commissioner’s ruling that the evidence was sufficient to entitle the infant to the Code § 38.2-5008 presumption.”

I respectfully dissent, however, to the majority’s view that the Program failed to rebut the Code § 38.2-5008 presumption.

II

THE STATUTE AND THE PRESUMPTION

Succinctly stated, and as here applicable, under the Virginia Birth-Related Neurological Compensation Act (the “Act”), if an infant suffers “ ‘an injury to the brain’…