Buetow v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-998V
Filed: July 31, 2015
(Not to be published)
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SHARI BUETOW, *
*
Petitioner, * Joint Stipulation of Dismissal;
v. * Influenza Vaccine; Transverse
* Myelitis
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
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Mark L. Krueger, Esq., Mark L. Krueger, Baraboo, WI for petitioner.
Gordon Shemin, Esq., U.S. Dep’t of Justice, Washington, D.C., for respondent.
DECISION1
Gowen, Special Master:
On October 16, 2014, petitioner filed a petition for Vaccine Compensation in the National
Vaccine Injury Compensation Program [“the Program”],2 alleging that the influenza vaccine
received on October 18, 2011, caused her to suffer from transverse myelitis. The information in
the record, however, does not show entitlement to an award under the Program. On July 30, 2015,
the parties filed a joint stipulation of dismissal. Joint Stipulation of Dismissal, filed July 30, 2015.
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 influenza vaccine, or 2) that petitioner suffered an injury that was actually caused by a
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Because this unpublished decision contains a reasoned explanation for the action in this case, I intend to post this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.
vaccine. 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 she suffered a “Table Injury” or that her 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/Thomas L. Gowen
Thomas L. Gowen
Special Master