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Cooper v. Adler11/16/2004
Djuana Cooper (Cooper) appeals a decision from the Virginia Workers' Compensation Commission (commission) awarding benefits to her decedent infant son, Amori, pursuant to the Virginia Birth-Related Neurological Injury Compensation Act (Act). Code §§ 38.2-5000 to 38.2-5021. Cooper claims the commission erred in: (1) adjudicating her common law claim of emotional distress; (2) transforming her common law claim into a claim for her infant child; (3) determining it had jurisdiction to preclude her from prosecuting her civil claim in circuit court and finding the Act was her exclusive remedy regarding her common law claim; and (4) determining the infant had suffered a "birth-related neurological injury" when Cooper's motion for judgment alleged no cause of action on behalf of the infant. On cross-appeal, Potomac Hospital contends Cooper cannot pursue this appeal since she did not give notice of appearance as required by Code § 8.01-273.1. The commission determined that Code § 38.2-5002 gave the commission authority to adjudicate the claim of the infant and that the remedy afforded the infant foreclosed Cooper's common law claim. For the reasons stated, we affirm the commission's ruling.
I. PROCEDURAL HISTORY AND BACKGROUND
Amori Cooper was born on March 29, 2000 at Potomac Hospital in Prince William County. During delivery he suffered oxygen deprivation and died on September 13, 2000. On March 15, 2002, Ms. Cooper filed a motion for judgment in the Circuit Court of Prince William County alleging that during labor and delivery the named defendants negligently injured her fetus in utero thus causing her emotional distress.
She pled in her motion for judgment:
14. During her labor and delivery on March 29, 2000, Djuana L. Cooper was subjected to a dangerous labor which resulted in the birth of her fetus in an injured condition and she has suffered emotional distress as a result and such emotional distress will continue in the future and substantially affect her emotional well being in many respects.
25. From the period of March 29, 2000 to the present, the plaintiff has suffered severe emotional distress due to the preventable injury to her fetus and such damage will continue in the future and adversely affect her mental well being.
26. But for the defendants' joint or concurring breaches of their respective duties, as set forth above, Djuana L. Cooper's fetus would not have been injured in utero and in the delivery process and Djuana L. Cooper would not have suffered emotional distress as a result of her fetus being permanently injured. Pursuant to Code § 8.01-273.1 and at the request of the defendants, the circuit court referred the matter to the Workers' Compensation Commission for a determination of whether the case falls within the jurisdiction of the Virginia Birth-Related Neurological Injury Compensation Act. The deputy commissioner entered an order on October 2, 2002 directing counsel for the infant to file all relevant documents with the commission. Counsel for Ms. Cooper responded to the deputy by letter dated October 14, 2002, maintaining that the infant, Amori, was neither his client nor a plaintiff in the Motion for Judgment filed in the circuit court. A hearing was held before the deputy on February 18, 2003 and, over objection of counsel, the deputy allowed counsel for Ms. Cooper to participate in the hearing. The deputy found that the commission had jurisdiction to decide this case on referral from the circuit court, that the infant suffered a birth-related neurological injury, and that the infant was entitled to an award.
Ms. Cooper appealed the decision to the full commission for a determination whether th
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