Wilson v. Secretary of Health and Human Services ( 2015 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
Filed: September 29, 2015
************************* UNPUBLISHED
KENDY SUE WILSON, * No. 13-866V
*
Petitioner, * Chief Special Master Dorsey
v. *
* Dismissal; Influenza (Flu) Vaccine;
SECRETARY OF HEALTH * Sensorineural Hearing Loss (SNHL);
AND HUMAN SERVICES, * Tinnitus
*
Respondent. *
*
*************************
Maximillian J. Muller, Muller Brazil, LLP, Philadelphia, PA for petitioner.
Lisa A. Watts, United States Department of Justice, Washington, DC for respondent.
DECISION1
On November 1, 2013, Kendy Sue Wilson (“petitioner”) filed a petition for compensation
under the National Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 et seq. (2006) (“Vaccine
Act”). Petitioner alleged that as a result of receiving an influenza (“flu”) vaccination on January
29, 2011, she suffered sensorineural hearing loss (“SNHL”) and tinnitus. Petition at ¶ 11.
Respondent filed her Rule 4 report on April 4, 2014, stating that this case was not
appropriate for compensation. Respondent stated that petitioner failed to provide preponderant
evidence in support of the petition for compensation, and compensation under the Act for
petitioner’s injuries must be denied.
On September 28, 2015, the parties filed a joint stipulation dismissing the petition. In the
motion, petitioner states that “[a]n investigation of the facts and science supporting the case have
demonstrated to petitioner that she will be unable to prove she is entitled to compensation in the
1
Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends to post this decision on the United States Court of Federal Claims' website, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 note (2006)). In accordance with Vaccine Rule 18(b),
petitioner has 14 days to identify and move to delete medical or other information, that satisfies
the criteria in § 300aa-12(d)(4)(B). Further, consistent with the rule requirement, a motion for
redaction must include a proposed redacted decision. If, upon review, I agree that the identified
material fits within the requirements of that provision, I will delete such material from public
access.
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Vaccine Program.” Motion for Dismissal at ¶ 1. Petitioner states that she understands that a
decision by the Special Master will result in a judgment against her, and that such a judgment
will end all rights in the Vaccine Program. Id. at ¶ 3.
To receive compensation under the Program, petitioner must prove either 1) that she
suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table—corresponding
to her vaccination, or 2) that she suffered an injury that was actually caused by a vaccine. See §§
300aa-13(a)(1)(A) and 300aa-11(c)(1). An examination of the record did not uncover any
evidence that the petitioner suffered a “Table Injury,” nor does petitioner allege that she suffered
a Table injury. While both parties have offered medical expert’s opinions on causation, the
record does not contain a medical expert’s opinion sufficient to indicate that petitioner’s injuries
were caused by a vaccination. Petitioner was unable to retain an additional expert to provide an
opinion in the case.
Under the Vaccine Act, a petitioner may not be awarded compensation based solely on
the petitioner’s claims. Rather, the petition must be supported by either medical records or by
the opinion of a competent physician. § 300aa-13(a)(1). In this case, because the medical
records are insufficient to establish entitlement to compensation, a medical opinion must be
offered in support. Petitioner, however, has not offered a persuasive medical expert opinion.
Therefore, the only alternative remains to DENY this petition. Thus, this case is
dismissed for insufficient proof. In the absence of a motion for review, the Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/ Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
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