Gray v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
(Filed: October 21, 2015)
* * * * * * * * * * * * * * * UNPUBLISHED
SAMUEL GRAY, *
* No. 13-880V
Petitioner, *
*
v. * Special Master Roth
*
SECRETARY OF HEALTH * Influenza Vaccine; Table Injury;
AND HUMAN SERVICES, * Dyspnea; Neurological Symptoms;
* Insufficient Proof
Respondent. *
*
* * * * * * * * * * * * * * *
Verne E. Paradie, Jr., Maglio, Paradie Sherman Walker and Worden, Lewiston, ME for
petitioner.
Gordon E. Shemin, U.S. Dept. of Justice, Washington, DC for respondent.
DECISION1
Roth, Special Master:
On November 5, 2013, petitioner filed a petition for Vaccine Compensation in the
National Vaccine Injury Compensation Program [“the Program”],2 alleging that the influenza
vaccine he received on October 21, 2010 caused him to suffer from Dyspnea and other
neurological symptoms. The information in the record, however, does not support entitlement to
an award under the Program. On January 24, 2014, petitioner moved for a decision dismissing
this petition.
To receive compensation under the Program, petitioner must prove either 1) that he
suffered a “Table Injury” – i.e., an injury falling within the Vaccine Injury Table – corresponding
to his vaccination, or 2) that petitioner suffered an injury that was actually caused by a vaccine.
1
Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this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 have 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.
2
The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100
Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter,
individual section references will be to 42 U.S.C. § 300aa of the Act.
1
See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence
that petitioner suffered a “Table Injury.” Further, the record does not contain persuasive
evidence indicating that petitioner’s alleged injury was vaccine-caused.
Under the Act, petitioner may not be given a Program award 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. § 13(a)(1). In this case, because there are insufficient
medical records supporting petitioner’s claim, a medical opinion must be offered in support.
Petitioner, however, has offered no such opinion that supports a finding of entitlement.
Accordingly, it is clear from the record in this case that petitioner has failed to
demonstrate either that he suffered a “Table Injury” or that petitioner’s injuries were “actually
caused” by a vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall
enter judgment accordingly.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
2