Roberts v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0390V
Filed: April 29, 2019
UNPUBLISHED
PAULA ROBERTS,
Petitioner,
v. Special Processing Unit (SPU);
Petitioner’s Motion for a Decision
SECRETARY OF HEALTH AND Dismissing Her Petition; Influenza
HUMAN SERVICES, (Flu) Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA); Shoulder Injury; Vaccine
Act Entitlement
Lawrence R. Cohan, Anapol Weiss, Philadelphia, PA, for petitioner.
Christine Mary Becer, U.S. Department of Justice, Washington, DC, for respondent.
DISMISSAL DECISION1
Dorsey, Chief Special Master:
On March 14, 2019, petitioner filed a petition for compensation under the
National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.,2 (the
“Vaccine Act”). Petitioner alleges that she suffered chronic left shoulder pain as a result
of an influenza vaccine administered in 2013. Petition at 1. The petition indicates that
petitioner only recently sought counsel and that at the time the petition was filed,
complete medical records had been ordered but not received, and the statute of
limitations was anticipated to run on March 19, 2019. Id. at 1-2.
On April 25, 2019, petitioner filed a motion for a dismissal decision stating that
after a review of additional medical records it was determined that petitioner did not
1 The undersigned intends to post this decision on the United States Court of Federal Claims' website.
This means the decision will be available to anyone with access to the internet. In accordance with
Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information,
the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the
undersigned agrees that the identified material fits within this definition, the undersigned will redact such
material from public access. Because this unpublished decision contains a reasoned explanation for the
action in this case, undersigned is required to post it on the United States Court of Federal Claims'
website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal
Management and Promotion of Electronic Government Services).
2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for
ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C.
§ 300aa (2012).
report symptoms of a shoulder injury related to vaccine administration (“SIRVA”) within
48 hours of her vaccination. Petitioner’s Motion for a Decision Dismissing Petition, filed
April 25, 2019 (ECF No. 9). Petitioner states that she would therefore “be unable to
prove that she is entitled to compensation in the Vaccine Program.” Id. Under these
circumstances, petitioner agrees “that to proceed further would be unreasonable and
would waste the resources of the Court, the respondent, and the Vaccine Program.” Id.
Petitioner states that she “understands that a decision by the [undersigned] dismissing
her petition will result in a judgment against her. She has been advised that such a
judgment will end all of her rights in the Vaccine Program.” Id.
To receive compensation under the Vaccine Act, petitioner must prove either
1) that she suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury
Table – corresponding to a covered vaccine, or 2) that she suffered an injury that was
actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Examination of
the record does not disclose any evidence that petitioner suffered a “Table Injury.”
Further, the record does not contain a medical expert’s opinion or any other persuasive
evidence indicating that petitioner’s alleged injury was vaccine-caused.
Under the Vaccine Act, a petitioner may not be awarded compensation based on
the petitioner’s claims alone. Rather, the petition must be supported by either the
medical records or by a medical opinion. § 13(a)(1). In this case, the record does not
contain medical records or a medical opinion sufficient to demonstrate that the vaccinee
was injured by a vaccine. For these reasons, and in accordance with § 12(d)(3)(A),
petitioner’s claim for compensation is denied and this case is dismissed for
insufficient proof. The Clerk shall enter judgment accordingly.3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2