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Injury program eligibility appealed

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State continues to say Franklin boy does not qualify for assistance

The state’s birth-injury program has been arguing unsuccessfully since late 2003 that a Paraplegic Franklin County boy is not severely injured enough to receive the program’s lifetime help.

This week, in papers filed electronically after business hours by the state attorney general’s office, the program says it’s not giving up.

A petition for rehearing delivered to the state’s court of appeals argues that there’s insufficient evidence that 6-year-old Mason McGrady, who has no feeling below his waist but is able to perform “a very nice army crawl” on his stomach, should receive program help.

“The family is terribly frustrated with the decision [by the program] to appeal yet another time,” T. Daniel Frith III, the McGrady family’s lawyer, said yesterday. “This claim was deemed to be valid at three separate levels of this process. The repeated appeals have delayed Mason’s medical care for over 2½ years. He badly needs medical attention and care which cannot be provided by his family.”

A hearing officer ruled in January 2004 that Mason fits the program’s strict eligibility guidelines. That was followed in April last year by a split decision from the state Workers’ Compensation Commission upholding Mason’s eligibility. This month, a 2-1 decision by the Virginia Court of Appeals supported the commission.

“The idea that this program advertises itself as non-adversarial is ridiculous,” Frith said.

This week’s appeal could prolong the case for years. It brings to 18 the number of birth-injury cases that have reached the state’s appeals courts in recent years; in all but one, rulings of the compensation commission have been upheld.

The appeals — which have challenged benefits, legal fees and entry criteria — began in earnest in 2000 when program deficits first appeared. That has raised allegations from lawyers representing families that the program is obstructing care to cut costs while not moving to raise fees paid by hospitals, doctors and insurers.

But program lawyers and board members say they are vigorously preserving the program’s narrow spectrum of injury and benefits. The program is about $100 million short of funds it is required to have in hand.

Program acceptance would mean that Mason could get medically necessary care, nursing help at home, a wage benefit, and vehicle and housing additions adapted for handicap use.

A key issue, however, according to program arguments, is that Mason’s spinal-cord injury at birth must create permanent Motor-control damage as well as developmental Disability or a cognitive disability. A child also must need assistance in all aspects of daily living.

But the law doesn’t define developmental or “motoric” — nor does it define “all aspects of daily living.”

Mason has no feeling below his waist, is incontinent and has breathing difficulties. Some children accepted for care can walk and talk; others are Ventilator dependent, blind, unable to feed themselves and are so weak they will not live into their teens.

The program has accepted about 100 children in its 18-year history; injured infants in the program are barred from suing participating doctors or hospitals. The program was envisioned as a non-adversarial alternative to medical-malpractice suits for children injured by negligence or who meet a certain level of injury at birth.

Mason will need help for the rest of his life, most experts agree, but whether he will need assistance in all aspects of daily life is another matter. He can talk and perform some bathing activities but can’t transfer independently from a wheelchair.

The appeals court decision said the law is structured in a way that allows a presumption that a child is sufficiently injured if the evidence shows that both motor-control damage is present and there is developmental or cognitive damage.

In its plea for a new hearing, the program argues that the presumption doesn’t apply and that experts used by the family failed to establish a distinction between motor-control damage and developmental damage.

The McGradys work three jobs to pay for Mason’s therapies. He requires care from about seven doctors for various injuries, according to court records.

Contact Bill McKelway at (804) 649-6601.

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