Raymond v. Secretary of Health and Human Services ( 2022 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 21-537V
UNPUBLISHED
ROBERT RAYMOND,
Chief Special Master Corcoran
Petitioner,
v. Filed: March 11, 2022
SECRETARY OF HEALTH AND Motion for decision; Dismissal;
HUMAN SERVICES, Influenza Vaccine; Shoulder Injury
Related to Vaccine Administration
Respondent. (SIRVA)
Ronald C. Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
Heather L. Pearlman, U.S. Department of Justice, Washington, DC, for Respondent.
DECISION1
On February 8, 2021, Robert Raymond filed a petition for compensation under
the National Vaccine Injury Compensation Program, 42 U.S.C. § 300aa—10 through
34,2 (the “Vaccine Act”). Mr. Raymond alleged that he suffered a shoulder injury related
to vaccine administration (“SIRVA”) from an influenza vaccine he received on
September 4, 2020. ECF no. 1.
On March 2, 2022, Mr. Raymond filed a motion for a decision dismissing the
petition. For the reasons set forth below, Mr. Raymond’s motion is GRANTED, and this
case is DISMISSED.
In the petition, Mr. Raymond alleged that he suffered a shoulder injury from an
influenza vaccination but did not otherwise detail any of his symptoms or medical
treatment. ECF No. 1. Mr. Raymond did not submit any medical records or other
supporting documentation with the petition.
1
Although I have not formally designated this Decision for publication, I am required to post it on the United
States Court of Federal Claims' website because it contains a reasoned explanation for the action in this
case, in accordance with the E-Government 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), 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, I agree that the identified material fits within this
definition, I will redact such material from public access.
2
National 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).
The February 3, 2021 PAR Initial Order required Mr. Raymond to file all the
statutorily required documents, including medical records supporting the vaccination,
pre-vaccination treatment, and post-vaccination treatment. ECF No. 5. Despite receiving
numerous extensions of time, Mr. Raymond did not file any medical records in support
of his petition.
On March 2, 2022, Mr. Raymond filed a motion for a decision dismissing the
petition stating that he “has been unable to secure further evidence required by the
Court to prove entitlement to compensation in the Vaccine Program.” ECF No. 16.
To receive compensation under the National Vaccine Injury Compensation
Program, a petitioner must prove either 1) that the vaccinee suffered a “Table Injury” –
i.e., an injury falling within the Vaccine Injury Table – corresponding to one of the
vaccinations, or 2) that the vaccinee suffered an injury that was actually caused by a
vaccine. See §§ 300aa—13(a)(1)(A) and 11(c)(1). Mr. Raymond alleged that he
sustained a SIRVA Table Injury.
Under the Vaccine Act, a petitioner may not receive compensation based solely
on the petitioner’s claims alone. Rather, the petition must be supported by either
medical records or by the opinion of a competent physician. § 300aa—13(a)(1). For a
Table Injury, among other requirements, a petitioner must establish with supporting
documentation that he received a covered vaccine and he satisfied the severity
requirement, that he either suffered the effects of this injury for at least six months or the
injury resulted in inpatient hospitalization and surgical intervention. § 300aa—11(c)(1).
Mr. Raymond did not file sufficient medical records to establish that he received a
covered vaccine nor that the met the severity requirement. Moreover, Mr. Raymond
admitted in the motion for a decision that he will not be able to establish entitlement to
compensation.
Thus, Petitioner has failed to establish entitlement to compensation in the
Vaccine Program. This case is dismissed for insufficient proof. The clerk shall
enter judgment accordingly.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
If Petitioner wishes to bring a civil action, he must file a notice of election rejecting the judgment
pursuant to § 21(a) “not later than 90 days after the date of the court’s final judgment.”
2