Webb v. Secretary of Health and Human Services ( 2018 )

REISSUED FOR PUBLICATION
OCT 25 2018
OSM
U.S. COURT OF FEDERAL CLAIMS
1Jtt tqr luttrh ~tatrn Q.lnurt of lJithtral Q.llatmn
OFFICE OF SPECIAL MASTERS
*********************
SAMUEL WEBB, *
* No. 15-803V
*
Petitioner, * Special Master Christian J. Moran
*
V. *
* Filed: September 27, 2018
SECRETARY OF HEALTH *
AND HUMAN SERVICES, * Entitlement; dismissal; flu vaccine;
* Bell's palsy.
Respondent. *
* **** ************* ***
Samuel Webb, Pro Se;
Justine Walters, United States Dep't of Justice, Washington, D.C., for respondent.
UNPUBLISHED DECISION GRANTING RESPONDENT'S
MOTION FOR DISMISSAL 1
Samuel Webb filed a petition under the National Childhood Vaccine Injury
Act, 42 U.S.C. §§ 300aa-10 through 34 (2012), on July 29, 2015. His original
petition alleged that the flu vaccine he received on November 20, 2012, caused him
to develop Bell's palsy on the left side of his face. However, the medical records
obtained and filed in the years following the filing of his original petition have not
1
Because this decision contains a reasoned explanation for the action in
this case, the undersigned is required to post it on the United States Court of
Federal Claims' website in accordance with the E-Gove1nment Act of 2002. 44
U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with
access to the internet. In accordance with Vaccine Rule 18(b ), petitioners have 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 before posting the decision.
been consistent with Mr. Webb's allegation. Mr. Webb was provided an
opportunity to amend his petition to correct these issues. In his amended petition,
Mr. Webb claimed that the flu vaccine caused him to suffer from an anaphylactic
reaction, which caused an acute onset of total facial paralysis on the left side of his
face and other conditions. In response to the amended petition, the Secretary filed
an amended Rule 4( c) report, stating that there remains an absence of corroborating
medical records or opinion supporting the claim for compensation. The Secretary
also moved for dismissal of Mr. Webb's petition. For the reasons stated below, the
Secretary's motion is GRANTED and Mr. Webb's petition for compensation is
DISMISSED.
I. Procedural History
Represented by attorney Andrew Downing, Mr. Webb originally alleged that
the seasonal flu vaccine, administered on November 20, 2012, caused him to
experience facial nerve paralysis, facial palsy, and pain on the left side of his face.
Pet. at ii 3 5. The petition refers to this constellation of symptoms as being
consistent with Bell's palsy. Id. at ii 35. Bell's palsy is a unilateral facial paralysis
that is characterized by a sudden onset. Dorland's Medical Dictionary 1365 (32d
ed. 2012). The palsy is due to damage to the facial nerve. Id.After Mr. Webb filed his petition, the undersigned set a deadline of
September 4, 2015, for him file any outstanding medical records, affidavits, and a
statement of completion. Order, issued Aug. 4, 2015. The undersigned also
suspended the deadline for respondent's Rule 4(c) report while the petitioner
continued to submit the required documentation. Id.Over the course of the subsequent months, Mr. Webb filed five different
motions for an enlargement of time to file the required medical records and
affidavits. These requests were granted and petitioner ultimately filed his
statement of completion on January 19, 2016. During this period, Mr. Webb filed
an affidavit that stated that he continued to try to, unsuccessfully, arrange an
evaluation by a neurologist. See exhibit 8 at ii 6. On March 21, 2016, the
Secretary confirmed that the records appeared largely complete and on April 20,
2016, he filed his Rule 4( c) Report.
In his original Rule 4(c) report, the Secretary challenged Mr. Webb's
entitlement to compensation, stating that there was an absence of medical record or
opinion in the record supporting petitioner's claim of a vaccine-injury. Resp't's
Rep. at 10. More importantly, the respondent argued that the medical records
2
indicated that the onset of Mr. Webb's claimed injury occurred two months before
the administration of his flu vaccine on November 20, 2018. Id. at 11. For these
reasons, the Secretary requested that the undersigned find that the case was not
appropriate for compensation and dismiss the petition. Id. at 12.
During the Rule 5 status conference, the petitioner requested 30 days to
consider his next steps. Order, issued Apr. 26, 2016. Mr. Webb was ordered to
file a status report by May 26, 2016, stating how he would like to proceed.
Petitioner requested multiple enlargements of this deadline, indicating that the
delay was due to his attempt to obtain additional medical records that may explain
the timeline of petitioner's complaints in relation to the vaccination. See order,
issued June 28, 2016.
On July 20, 2016, Mr. Downing moved to withdraw from the case. On
August 25, 2016, Mr. Webb filed a letter stating that he was proceeding prose. On
October 1, 2016, petitioner moved for leave to file an amended petition.
Petitioner's motion was granted and he was given until December 16, 2016, to file
the amended petition. Order, issued Nov. 3, 2016. At the same time, Mr.
Downing's motion to withdraw as Mr. Webb's attorney was granted. Order, issued
Nov. 2, 2016.
While Mr. Webb worked to obtain additional records, he requested several
enlargements of time to file his amended petition. During this time, Mr. Webb also
filed various motions to exclude information related to his criminal history from
the record. See Pet'r's Mot. to Exclude, filed Aug. 9, 2017; Pet'r's Mot. to Strike,
filed Aug. 9, 2017; Pet'r's Rule 403 Mot., filed Aug. 9, 2017. These motions were
denied on January 22, 2018.
Mr. Webb ultimately filed his amended petition on October 4, 2017. A
status conference was held on March 20, 2018, to discuss the amended petition and
petitioner's next steps. During the status conference, the petitioner indicated that
he had been unable to obtain an independent neurological examination and
expressed an interest in the undersigned appointing one to examine him. See
order, issued March 22, 2018. The undersigned noted that Mr. Webb could move
for the appointment of an independent neurologist, but that it was unlikely that the
Office of Special Masters would be able to make such an arrangement. Id. Mr.
Webb also requested and was granted leave to file additional medical articles
regarding his condition and / or his claim of causation. Id. The undersigned also
ordered the Secretary to file a supplemental Rule 4( c) repmi within 60 days,
addressing the newly filed medical records and Mr. Webb's amended petition. Id.3
On June 4, 2018, the Secretary filed his supplemental Rule 4(c) report,
noting that the additional exhibits, medical records, and averments made in the
amended petition did not "cure the factual discrepancies and legal insufficiencies"
of Mr. Webb's claim. Resp't's Rep. at 4. Concurrent with the filing of the Rule
4(c) report, the Secretaiy moved for Mr. Webb's claim to be dismissed, stating that
the action had been pending for three years, during which time petitioner has been
unable to support the claim with reliable evidence. Resp't's Mot. to Dismiss, filed
June 4, 2018, at 1. Mr. Webb responded, stating that dismissal was not appropriate
and that he had met the statutory requirements for compensation. Pet'r's Resp.,
filed June 25, 2018, at 1-2. The pending motion is ripe for adjudication.
II. Background
The parties to this case take two different points of view with regards to
when Mr. Webb's Bell's palsy first manifested on the left side of his face. While
Mr. Webb has filed evidence in the form of his affidavits, medical records, and
other supporting documents covering a period of nearly a decade, the focus for this
decision is the period between September and December 2012. The crux is
whether Mr. Webb's left-sided Bell's palsy started before, or following, his flu
vaccination on November 20, 2012. Accordingly, the restatement of the facts of
this case are largely limited to that period.
A. Medical Records 2
Mr. Webb had a history of Bell's palsy on the right side of his face prior to
the November 20, 2012 flu vaccine. See exhibit 3 at 44. The palsy first appeared
in Mr. Webb's medical records on November 5, 2011. Exhibit 3 at 44. This was
two weeks before Mr. Webb received a seasonal flu vaccination on November 22,
2011 (the year before the vaccination in question).
Over the course of the next year, Mr. Webb noticed improvement in the
right-sided Bell's palsy. Id. at 36. During this time, he visited the health care staff
for other medical and psychological complaints that are not pertinent to the present
issue. See generally exhibit 3.
2
Mr. Webb is a prisoner in custody of the Arizona Depaiiment of Corrections (ADOC).
Before being placed in custody with ADOC, he was jailed by Maricopa County. Thus, many of
his records arise out ofrequests for medical treatment submitted by Mr. Webb to the institution.
4
In the fall of 2012, the records show that Mr. Webb made some routine visits
to the health center. On October 9, 2012, he was seen to have his blood pressure
measured. Id. at 33. This visit was due to a request made by Mr. Webb on a
Health Needs Request. See exhibit 9 at 6. Some short notes accompany this
record, stating that he "has no concerns/ complaints" and that he was "in [O]
distress." Exhibit 3 at 33. Mr. Webb was also seen for blood draws on November
12, 2012, and November 13, 2012. Id. The records made by the technicians that
performed these blood draws do not show any complaints by Mr. Webb. Id.During the fall of 2012, Mr. Webb also made several other Health Needs
Requests. See exhibit 9. In three of these requests, he asked for tape for the
purpose of addressing symptoms from his Bell's palsy; the tape is used to keep his
affected eye shut so that he can sleep. In the needs request on October 19 and 29,
2012, Mr. Webb stated that he needed the tape for his "eye." Id. at 1, 4. In the
October 24, 2012 request, Mr. Webb stated that he needed the tape for his "eyes."
Id. at 2.
Mr. Webb received a seasonal flu vaccine on November 20, 2012. Exhibit 3
at 8-9.
Ten days after his flu vaccination, Mr. Webb visited the clinic again for a
scheduled visit. Id. at 31. During this appointment, the records show that Mr.
Webb stated that he had developed Bell's palsy on the left side of his face on
September 21, 2012. Id. The records further state that his right-sided Bell's palsy
was resolved. Id. Importantly, the records provide certain indicia in support of the
timing provided. Specifically, the records state, accurately, that Mr. Webb was on
trial on September 5, 2012, and that Mr. Webb believed that his Bell's palsy was
secondary to the stress caused by the trial. Compare id. (noting that Mr. Webb's
trial was on September 5, 2012) with exhibit 13 at 1 (Mr. Webb's calendar noting
that his guilty verdict was delivered on that day). The records also state that the
left-sided Bell's palsy has improved since September 2012. Exhibit 3 at 31.
Because of the importance of this record to this decision, the document is
reproduced below:
5
Id.In the following years, Mr. Webb's medical records show that his symptoms
associated with the Bell's palsy gradually improved. In December 2012, he was
unable to close his left eye. Exhibit 3 at 37. In March 2013, he had a slight droop
in his right jaw. Exhibit 5 at 185. By March 2014, he had only slight pain and
scant facial paralysis. Exhibit 5 at 178.
B. Mr. Webb's Affidavits and other records
Mr. Webb submitted several exhibits that conveyed his personal recollection
of events surrounding his reaction to the November 20, 2012 flu vaccine.
In his original affidavit, Mr. Webb stated that his right-sided Bell's palsy
started in early November 2011. Exhibit 1 at ,I 8. He stated that his Bell's palsy
improved throughout the year, though he continued to experience temporary flare-
ups of his symptoms. Id. at ,I 13-15.
Mr. Webb stated that after he received his flu vaccine on November 20,
2012, he began experiencing Bell's palsy symptoms on the left side of his face. Id.at ,I 17. He expressed that the onset was very similar to his experience with the
right side of his face a year earlier. Id.Mr. Webb further averred that he set up an appointment with Correctional
Health Services because he was concerned about the onset of Bell's palsy
6
symptoms on the left side of his face. Id. at ,I 18. This appointment took place on
November 30, 2012, and resulted in the record reproduced above. The November
30, 2012 appointment is not further described in Mr. Webb's first affidavit.
In the affidavit filed concurrently with his amended petition, Mr. Webb
stated that it was after the November 21, 2012 flu vaccine that he started
experiencing the onset of symptoms he attributed to Bell's palsy. Exhibit 10 at ,I 1.
Mr. Webb described the onset of the pain in some detail. See id. at ,I 2. Mr. Webb
stated that the facial paralysis was first noticed on the morning of November 28,
2012. Id. at ,I 6. He stated that he is sure of the timeline because he remembers
being concerned about his appearance for his upcoming sentencing on December
5, 2012. Id. at ,I 7. In this affidavit, Mr. Webb does not address the November 30,
2012 medical appointment.
In a separate affidavit, filed as exhibit 14, Mr. Webb addressed the
November 30, 2012 visit in more detail. In this affidavit he stated that the
physician assistant "made a medical records blunder." Exhibit 14 at ,I 1. Mr.
Webb controverted his previous averment that the November 30, 2012 visit was
scheduled in response to the onset of Bell's palsy on the left side of his face
following the November 20, 2012 vaccination. See exhibit 1 at ,I 18. Here, he
acknowledged that the appointment was for a "scheduled chronic care visit for
hype1iension and chronic kidney disease." Id. He further stated that when he saw
the physician assistant, Mr. Webb told him about the symptoms he had been
experiencing on the left side of his face. Id. at ,I 2-4. However, Mr. Webb argued
that the physician assistant made a series of blunders in documenting Mr. Webb's
concerns into the record. Id. at ,I 5-8.
More specifically, Mr. Webb stated that the documentation that the left-
sided Bell's palsy started on "9/21/18," should read "11/21/18." Id. at ,I 5. Mr.
Webb fmiher argued that when the treater wrote "notes improvement [left] side
face since Sept. 2012," the physician assistant had confused the month of
September from Mr. Webb's statement that he was found guilty in September. Id.Mr. Webb argues that the note "means that the extreme pain had abated or
improved since it had started on what should have been annotated 11/21/12." Id.(internal quotations omitted).
Mr. Webb also pointed out that he did not request treatment for the onset of
Bell's palsy in the fall of 2012 in any of the submitted Health Needs Requests. Id.at ,I 6. He also noted that the records of the technicians that checked his blood
pressure and drew his blood on October 9, November 12, and November 13, did
7
not indicate that anything was wrong or that Mr. Webb had any complaints. Id. at ,r
6 (referencing exhibit 3 at 33). In his affidavit, Mr. Webb also pointed out that in
the Health Needs Requests for tape, he usually used the singular "eye" and that the
one time he used the plural "eyes" was a typographical enor that he recalled
making and recalled deciding not to fix at the time. Exhibit 14 at ,r 7 (referencing
exhibit 9).
In addition to his affidavits, Mr. Webb submitted other exhibits such as a
pain journal (exhibit 11) and a medical visit log (exhibit 20). These largely
conce1ned a time period that is not critical for the purposes of this decision.
However, exhibit 13 is an annotated calendar detailing his recall of symptoms
following the 2012 vaccination. The calendar is consistent with the contents of the
affidavits and is not further summarized here.
C. The Secretary's Argument
In his motion to dismiss, the Secretary argues that Mr. Webb is not entitled
to compensation for he has failed to meet his burden of proving causation.
Resp't's Ivlot., filed June 4, 2018, at 1 (incorporating the arguments made in the
concurrently filed supplemental Rule 4( c) report). The Secretary argues that Mr.
Webb's claims are controverted by the medical records insofar as the onset of his
left-sided Bell's palsy preceded the 2012 flu vaccination and there is no evidence
in the record supporting the injuries alleged in Mr. Webb's amended petition. See
Resp't's Rule 4(c) Rep., filed June 4, 2018, at 4-5. The Secretary notes that the
action has been pending for three years, during which time Mr. Webb has been
unable to support his claim with reliable evidence. Resp't's Mot., filed June 4,
2018, at 1.
D. Mr. Webb's Argument
Mr. Webb responded to the Secretary's motion, stating that he had met his
burden by a preponderance of evidence. Pet'r' s Resp., filed June 25, 2018, at 1.
Mr. Webb criticizes the respondent's reliance on a single medical record to
conclude that Mr. Webb's Bell's palsy manifested before the vaccination in
question. Id. at 2. Mr. Webb argues that he has presented preponderant evidence
to show that the medical record in question is a "medical records blunder" and that
because of his confinement in prison, he has been "prevented beyond his control to
see a medical expert." Id. at 2-3. Ivlr. Webb further argues that he has satisfied his
burden to show a compensable vaccine injury under the Vaccine Act, as it has been
interpreted by the Federal Circuit. Id. at 4-6.
8
III. Standards of Adjudication
Petitioners are required to establish their cases by a preponderance of the
evidence. 42 U.S.C. § 300aa-13(l)(a). The preponderance of the evidence
standard requires a "trier of fact to believe that the existence of a fact is more
probable than its nonexistence before [he] may find in favor of the party who has
the burden to persuade the judge of the fact's existence." Moberly v. Sec'y of
Health & Human Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010) (citations
omitted).
The Secretary's motion turns on a factual determination that Mr. Webb's
Bell's palsy on the left side of his face occurred prior to the administration of his
flu vaccine on November 20, 2012. The process for finding facts in the Vaccine
Program begins with analyzing the medical records, which are required to be filed
with the petition. 42 U.S.C. § 300aa-1 l(c)(2). Medical records that are created
contemporaneously with the events they describe are presumed to be accurate.
Cucuras v. Sec'y of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir.
1993).
Not only are medical records presumed to be accurate, they are also
presumed to be complete, in the sense that the medical records present all the
problems of the patient. Completeness is presumed due to a series of propositions.
First, when people are ill, they see a medical professional. Second, when ill people
see a doctor, they report all of their problems to the doctor. Third, having heard
about the symptoms, the doctor records what he or she was told.
Appellate authorities have accepted the reasoning supporting a presumption
that medical records created contemporaneously with the events being described
are accurate and complete. A notable example is Cucuras in which petitioners
asserted that their daughter, Nicole, began having seizures within one day of
receiving a vaccination, although medical records created around that time
suggested-that the seizures began at least one week after the vaccination. Cucuras,
993 F.3d at 1527. A judge reviewing the special master's decision stated that "[i]n
light of [the parents'] concern for Nicole's treatment ... it strains reason to
conclude that petitioners would fail to accurately report the onset of their
daughter's symptoms. It is equally unlikely that pediatric neurologists, who are
trained in taking medical histories concerning the onset of neurologically
significant symptoms, would consistently but erroneously report the onset of
9
seizures a week after they in fact occurred." Cucuras v. Sec'y of Health & Human
Servs., 26 CL Ct. 537, 543 (1992), aff'd, 993 F.2d 1525 (Fed. Cir. 1993).
Decisions by judge_s of the Comt of Federal Claims have followed Cucuras
in affirming findings by special masters that the lack of contemporaneously created
medical records can contradict a testimonial assertion that symptoms appeared on a
certain date. See, e.g., Doe/70 v. Sec'y of Health & Human Servs., 95 Fed. Cl.
598, 608 (Fed. Cl. 2010) (stating "[g]iven the inconsistencies between petitioner's
testimony and his contemporaneous medical records, the special master's decision
to rely on petitioner's medical records was rational and consistent with applicable
law"), aff'd sub nom. Rickett v. Sec'y of Health & Human Servs., 468 Fed. Appx.
952 (Fed. Cir. 2011) (non-precedential opinion); Doe/17 v. Sec'y of Health &
Human Servs., 84 Fed. Cl. 691, 711 (2008); Ryman v. Sec'y of Health & Human
Servs., 65 Fed. Cl. 35, 41-42 (2005); Snyder v. Sec'y of Health & Human Servs.,
36 Fed. Cl. 461, 465 ( 1996) (stating "The special master apparently reasoned that,
if Frank suffered such [developmental] losses immediately following the
vaccination, it was more likely than not that this traumatic event, or his parents'
mention of it, would have been noted by at least one of the medical record
professionals who evaluated Frank during his life to date. Finding Frank's medical
history silent on his loss of developmental milestones, the special master
questioned petitioner's memory of the events, not her sincerity"), aff'd, 117 F.3d
545, 547-48 (Fed. Cir. 1997).
The presumption that contemporaneously created medical records are
accurate and complete is rebuttable, however. For cases alleging a condition found
in the Vaccine Injury Table, special masters may find when a first symptom
appeared, despite the lack of a notation in a contemporaneous medical record. 42
U.S.C. § 300aa-13(b )(2). By extension, special masters may engage in similar
fact-finding for cases alleging an off-Table injury. In such cases, special masters
are expected to consider whether medical records are accurate and complete. To
overcome the presumption that written records are accurate, testimony is required
to be "consistent, clear, cogent, and compelling." Blutstein v. Sec'y of Health &
Human Servs., No. 90-2808V, 1998 WL 408611, at *5 (Fed. Cl. Spec. Mstr. June
30, 1998).
In determining the accuracy and completeness of medical records, special
masters will consider various explanations for inconsistencies between
contemporaneously created medical records and later given testimony. The Court
of Federal Claims listed four such explanations. The Comt noted that
inconsistencies can be explained by: (1) a person's failure to recount to the medical
10
professional everything that happened during the relevant time period; (2) the
medical professional's failure to document everything reported to her or him; (3) a
person's faulty recollection of the events when presenting testimony; or (4) a
person's purposeful recounting of symptoms that did not exist. La Londe v. Sec'y
Health & Human Servs., 110 Fed. Cl. 184,203 (Fed. Cl. 2013), affd, 746 F.3d
1334 (Fed. Cir. 2014).
In weighing divergent pieces of evidence, special masters usually find
contemporaneously written medical records to be more significant than oral
testimony. Cucuras, 993 F.2d at 1528. Oral and written testimony offered after
the events in question is less reliable than contemporaneous reports when the
motivation for accurate explication of symptoms is more immediate. Reusser v.
Sec'y of Health & Human Servs., 28 Fed. Cl. 516,523 (1993). However,
compelling testimony may be more persuasive than written records. Campbell v.
Sec'y of Health & Human Servs., 69 Fed. Cl. 775, 779 (2006) ("[L]ike any norm
based upon common sense and experience, this rule should not be treated as an
absolute and must yield where the factual predicates for its application are weak or
lacking."); Camery v. Sec'y of Health & Human Servs., 42 Fed. Cl. 381,391
(1998) (this rule "should not be applied inflexibly, because medical records may be
incomplete or inaccurate"); Murphy v. Sec'y of Health & Human Servs., 23 Cl. Ct.
726, 733 (1991 ), aff d, 968 F.2d 1226 (Fed. Cir. 1992) ("[T]he absence of a
reference to a condition or circumstance is much less significant than a reference
which negates the existence of the condition or circumstance.") (citation omitted).
IV. Analysis
A. Mr. Webb's Original Claim: Bell's Palsy
Although Mr. Webb argues that the medical record of November 30, 2012
was a "medical records blunder," on balance the undersigned finds the November
30, 2012 medical record to be the most reliable evidence of when Mr. Webb's left-
sided Bell's palsy started. The other evidence presented by Mr. Webb is, at best,
equivocal. In contrast, the November 30, 2012 record is precise, cogent, and clear.
The November 30, 2012 record does not lend itself to the conclusion that it
is not an accurate account of what Mr. Webb reported at the time. Of all his
medical records, the record is relatively complete and comprehensive. The record
is also internally consistent and creates a nanative of events that is tied to other
events in Mr. Webb's life.
11
Mr. Webb's argument that the treater mistakenly wrote September instead of
November is not persuasive for two reasons. First, the treater created a narrative in
which Mr. Webb's stress due to the guilty verdict on September 5, 2012, may have
been causally associated with the onset of his Bell's palsy two weeks later. This
same notation does not make sense if the treater meant to write that the onset was
"11/21/12" instead of "9/21/12." Second, the treater made a second notation that
Mr. Webb had noted improvement since "Sept. 2012." The argument that a treater
mistakenly wrote an "11" instead of a "9" is a stretch, but conceivable. The
argument that a treater wrote an "11" instead of a "9" and "Sept." instead of
"Nov." is much less persuasive.
Mr. Webb is correct that other records inform his claim that the vaccination
pre-dated the onset of his left-sided Bell's palsy. The fact that the left-sided palsy
was not noted in visits to get his blood pressure checked and his blood drawn in
October and November 2012 is relevant and probative. Nonetheless, these records
are easily explained by two observations. First, these appointments were for the
purpose of running specific tests performed by technicians and were not physical
examinations or an attempt to collect medical history. In contrast, this was the
case for the November 30, 2012 appointment. Second, the fact that Mr. Webb did
not complain about his Bell's palsy at these appointments to have his blood drawn
and blood pressure taken is entirely consistent with Mr. Webb's testimony that he
did not think that anything could be done and that he had self-diagnosed the issue
as the same Bell's palsy that had occmTed on the right side of his face a year prior.
See exhibit 14 at ,r 2 ("I did not put in a Health Needs Request because there was
nothing that could be done").
The Health Needs Requests that Mr. Webb did file that fall are relevant as
well. However, their evidentiary value is minimal, at best. Mr. Webb's argument
that the fact that two of the three records refers to "eye" in the singular as opposed
to the plural rests on the assumption that the one record that uses the plural was a
typo, as Mr. Webb suggests. However, the undersigned cannot credit Mr. Webb's
averment that he remembers making the typographical error; recalling a typo years
later strains reason. Even more, the evidence in the record indicates that by
October 2012, Mr. Webb's right-sided Bell's palsy had largely resolved and thus
the tape could have been just for his left eye. Regardless, the undersigned finds the
singular / plural distinction in these records to be especially unhelpful for resolving
the factual question at bar.
Also potentially relevant is the absence of Health Needs Requests or other
indications that Mr. Webb sought treatment for Bell's palsy in September or
12
October 2012. Mr. Webb argues that this buttresses his claim of a later onset.
However, Mr. Webb's decision to not solicit treatment for the left side Bell's palsy
is, as noted before, consistent with Mr. Webb's statement that he did not believe
anything could be done and was intent to let the palsy run its course without
medical treatment. See exhibit 14 at ,r 2 ("I did not put in a Health Needs Request
because there was nothing that could be done").
Furthermore, Mr. Webb's argument that he would have sought treatment for
left-sided Bell's palsy is inconsistent with even Mr. Webb's version of events.
More specifically, Mr. Webb claims that the left-side Bell's palsy started on
November 21, 2012, with intense pain and was followed by facial paralysis on
November 28, 2012. To the extent that Mr. Webb is conect in saying that he
would have sought treatment in September if the onset actually occuned in
September, we would also expect him to have sought treatment in November if the
onset occuned in November. However, Mr. Webb did not report the intense pain
or the paralysis when the symptoms occuned, instead nothing was mentioned until
a previously-scheduled visit approximately 10 days later.
Finally, the undersigned notes that while Mr. Webb is confident in his ability
to recall events from 2012 with incredible specificity (for example, as noted above,
Mr. Webb avers that he can recall making a typographical enor on a health needs
form), the evidence in this case shows that Mr. Webb's memory is not as perfect as
he may think. In his original affidavit, Mr. Webb claimed that the onset of his
Bell's palsy symptoms following the November 20, 2012 vaccination prompted
him to fill out a Health Needs Request, with complaints about pain and paralysis
on the left side of his face. Exhibit 1 at ,r 18. However, Mr. Webb later
acknowledged that he was mistaken; the November 30, 2012 appointment was a
previously scheduled six-month chronic care visit for his hypertension. Am. Pet. at
,r 7.
In summary, the undersigned finds it more likely than not that Mr. Webb's
Bell's palsy staiied on or around September 21, 2012. Accordingly, his claim that
the November 20, 2012 flu vaccine caused the injury cannot prevail.
B. Mr. Webb's Additional Claims
Mr. Webb amended his petition to include a claim that the flu vaccine he
received on November 20, 2012 caused him to have an anaphylactic reaction,
followed by bilateral trigeminal neuralgia, fibromyalgia, and a chronic
13
inflammat01y demyelinating polyneuropathy. Am. Pet. at 2. Mr. Webb did not
allege significant aggravation.
As an initial matter, the undersigned notes that in his amended petition, Mr.
Webb continues to associate the onset of these symptoms to his reaction to the
November 20, 2012 vaccination. Thus, the finding that Mr. Webb's facial
paralysis began in September 2012 undermines his claims of vaccine causation for
the injuries alleged in the amended petition as well.
Furthermore, Mr. Webb has not met his burden of showing that he suffers
from the injuries alleged in the amended petition. The Federal Circuit has stated
that "the statute places the burden on the petitioner to make a showing of at least
one defined and recognized injmy." Lombardi v. Sec'y of Health & Human Servs.,
656 F .3d 1343, 1353 (Fed. Cir. 2011 ). Put another way, if a petitioner cannot
prevail on showing that he suffers from his alleged injury, that ends the analysis.
See Hibbard v. Sec'y of Health and Human Servs., 698 F.3d 1355, 1365 (Fed. Cir.
2012).
Here, the medical records simply do not sustain a claim that Mr. Webb
suffered any of the alleged injuries with the exception of Bell's palsy.
Throughout the records from 2016 and 2017, Mr. Webb complained he was
suffering from some alternate, or underlying, condition other than the Bell's palsy
with which he had already been diagnosed. See, e.g., exhibit 23 at 2 (recording a
May 16, 2017 visit where Mr. Webb reported that he "believes he has other
neurological problems going on" and that he was "trying to connect his
hypercalcemia and facial paralysis to a possible neurological problem other than
the Bell's palsy"); exhibit 23 at 5 (Mr. Webb "requesting to see a neurologist for
multiple complaints" on March 3, 2017); exhibit 22 at 8 (recording a November 9,
2016 visit where Mr. Webb told his physician to "forget about the Bells Palsy" and
requesting a neurology consultation because he is "conce1ned that further
demyelination of his nerves will continue or that he has a tumor and that is why he
wants to have the neurology consult").
However, the record simply does not sustain a finding that Mr. Webb suffers
from a neurological condition beyond Bell's palsy. Despite the numerous
complaints and evaluations, Mr. Webb's treating physicians appear to have
universally concluded that Mr. Webb suffered from a waning course of Bell's
palsy and had no other underlying neurological condition. See, e.g., exhibit 22 at 8
(assessing Mr. Webb with a facial nerve disorder); exhibit 22 at 16 (assessing Mr.
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Webb with "old Bell's palsy"); exhibit 23 at 2 (noting that Mr. Webb had "no new
neurological symptoms" and assessing him with Bell's palsy with chronic
symptoms that are improved); exhibit 16 at 1 (cancelling Mr. Webb's request for
an off-site neurological examination following examination by his treating
physician). Accordingly, the evidence Mr. Webb presented falls short of his
statutory requirement to present preponderant evidence of the injury he alleged in
the amended petition.
Relatedly, Mr. Webb has indicated that he would like the undersigned to
designate, and arrange for, a court-appointed neurologist to independently examine
Mr. Webb. See order, issued Mar. 22, 2018. As an initial matter, the undersigned
has doubts about his jurisdiction to offer Mr. Webb the relief he requests.
Regardless of the answer to that jurisdictional issue, the undersigned does not find
that a court-appointed neurologist is appropriate here. Mr. Webb's medical records
indicate that he has been examined by multiple healthcare providers and all have
come to the same conclusion regarding Mr. Webb's clinical course. Nothing in the
record, beyond Mr. Webb's recent averments otherwise, contradicts the findings of
Mr. Webb's physicians or otherwise undermines the credibility of those
physicians.
In addition, the undersigned notes that the onset of Mr. Webb's claimed
neurological symptoms occurred months prior to the flu vaccine he received in
November 2012. This factual issue regarding the onset logically precludes the
claim that any neurological symptoms that Mr. Webb may have had are the result
of an adverse reaction to the vaccine. W.C. v. Sec'y of Health & Human Servs.,
704 F.3d 1352, 1358 (Fed. Cir. 2013) ("If a petitioner has a disorder before being
vaccinated, the vaccine logically cannot have caused the disorder"). Thus, to
whatever extent Mr. Webb may actually benefit from the services of an
independent neurologist (despite his physicians' opinions otherwise) it does not
appear that an outside neurologist would be able to provide probative evidence for
Mr. Webb's petition. 3 For the aforementioned reasons, Mr. Webb's request for a
court-appointed neurologist is denied.
3
Mr. Webb's October 4, 2017 Amended Petition alleges he suffered various injuries that
were "the result from an adverse effect" of the flu vaccination. The Amended Petition does not
allege significant aggravation.
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C. A Hearing is Not Necessary for the Adjudication of Mr.
Webb's Petition
The undersigned has determined that Mr. Webb's claim can be dismissed
without a hearing to take Mr. Webb's oral testimony.
In D'Tiole v. Sec'y of Health & Human Servs., the Federal Circuit stated that
"the decision to hold an evidentiary hearing is statutorily committed to the
discretion of the Special Master." 726 F. App'x 809, 812 (Fed. Cir. 2018) (citing
42 U.S.C. § 300aa-12(d)(3)(B)(v)). This discretion is tempered by Vaccine Rule
3(b)(2) and Vaccine Rule 8. Vaccine Rule 3(b)(2) requires special masters to
"afford[] each party a full and fair opportunity to present its case." Vaccine Rule
8(d) authorizes a special master to "decide a case on the basis of written
submissions without conducting an evidentiary hearing."
As an initial matter, the documentary record appears complete. For the first
year this case was pending, a capable and experienced attorney represented Mr.
Webb. On Mr. Webb's behalf, Mr. Downing submitted records and affidavits
relating to his claim during that time. Furthermore, after Mr. Downing's
withdrawal, Mr. Webb has shown himself capable of filing additional records and
other supporting documentation. He has also amended his petition. Thus, the
documentary part of the case is sufficient.
The remaining question is whether oral testimony is also needed. Based
upon "the specific circumstances" (Vaccine Rule 8(a)), the undersigned finds that
taking oral testimony is not required to adjudicate Mr. Webb's claim fairly. In the
undersigned's experience, hearings prove helpful when records contain ambiguities
or when a record appears missing. However, here, those circumstances are not
present. The medical records from 2012 are consistent and complete.
The consistency of the medical records stands in contrast with Mr. Webb's
affidavits. Mr. Webb's statements have been inte1nally inconsistent and appear
opportunistic insofar as the averments have, over time, shifted to comport with the
medical records. These changes in written testimony lessen the likelihood of
receiving reliable testimony at a hearing.
Finally, Mr. Webb has offered no supporting affiants that substantiate his
claims to weigh against a finding that a hearing is appropriate. In the
undersigned's experience, oral testimony from third-parties can be helpful, but Mr.
Webb has not identified any potential percipient witnesses.
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Accordingly, in consideration of the specific circumstances of Mr. Webb's
case, the undersigned finds an adjudication without a hearing appropriate.
V. Conclusion
For the aforementioned reasons, the undersigned finds that Mr. Webb has
been provided a full and fair opportunity to present his case of a vaccine injury.
The evidence entered by Mr. Webb is not sufficient to meet his statutory burden
for proving a compensable vaccine injury. Accordingly, Mr. Webb's petition is
DISMISSED pursuant to Vaccine Rule 8(d).
IT IS SO ORDERED.
``~
Christian J. M6ran
Special Master
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