Alfaro v. Secretary of Health and Human Services

URIG|NAL In the Uniteh Statea Gluttrt of Iieheral Tlaima oFFlcE oF sPECIAL MASTERS F l LED =s<=x<>x<>x<>x=>x==c=>i<>c<>i<>x==c<>x=>x<>x<>x=*>x<>c=>x<>k MAR?)lZI]M DORIS ALFARO, * u.s. couRT oF >x< NO_ 12_578\/ FEDERAL CLA|MS Petitioner, * Special Master Christian J. Moran >l< v. * Filed: March 31, 2014 >l< SECRETARY OF HEALTH * Decision on the record; insufficient AND HUl\/IAN SERVICES, * proof of causation; nerve damage; * tumor; influenza ("flu") vaccine.

Respondent. * >l<>|<>l<>i<>l<=l<=l<>l<>l<>l<>l<>l<>|<>l<>l<>l<>l<>l<>l<** Doris Alfaro, Santa Barbara, CA, pro se; Vincent J. l\/Iatanosl<i, United States Dep’t of Justice, Washington, D.C., for respondent.

UNPUBLISHED DECISION DENYING COMPENSATIONI Doris Alfaro filed a petition under the National Childhood Vaccine Injury Act, 42 U.S.C. §300a-l0 gt. §e_<:l., on September 7, 2()12. Her petition alleged that she suffered nerve damage to both arms and a tumor on her left arm as a result of the influenza ("flu") vaccine she received on ()ctober 26, 20lO. The information in the record, however, does not show entitlement to an award under the Program.

I. Procedural Histol_'y On September 7, 2012, Doris Alfaro, representing herself, filed a petition under the National Childhood Vaccine Injury Act, § 300aa-l0 through 34, alleging l The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899, 2913 (Dec. 17, 2002), requires that the Court post this ruling on its website. Pursuant to Vaccine Rule l8(b), the parties have 14 days to file a motion proposing redaction of medical information or other information described in 42 U.S.C. § 300aa-l2(d)(4). Any redactions ordered by the special master will appear in the document posted on the website. that she experienced pain on her left arm caused in fact by an influenza vaccine she received on October 26, 2010.

An initial status conference was held on October 3l, 20 l2. For this conference, Ms. Alfaro arranged to have a bilingual individual join her for the call to assist by communicating for her in English.z Following the conference, respondent periodically filed medical records previously forwarded to her by Ms. Alfaro (exhibits A-K and L). Respondent additionally assisted in the collection of Ms. Alfaro’s medical records by filing a motion to authorize a subpoena for records from UCLA Health System in Los Angeles, California. §e_e_ order, issued Apr. 12, 2013 (authorizing subpoena).

On April 22, 2013, respondent filed her Rule 4 report finding the evidence insufficient to recommend compensation. Resp’t’s Rep’t, filed Apr. 22, 2013, at 12. Respondent further stated that Ms. Alfaro’s injury did not "meet the criteria for a Table Injury," and recommended that the final decision on Ms. Alfaro’s eligibility under the Vaccine Act be deferred until additional medical information, including an independent medical exam, became available. I_d. at 1 1-l2.

A status conference was held on May 1, 2013, to discuss respondent’s Rule report. During this conference, the parties discussed the status of the record and arrangements for Ms. Alfaro to receive and independent medical examination On May 13, 2013, respondent filed the records obtained by subpoena. Exhibit M.

On June 3, 2013, respondent filed a status report detailing the arrangements for Ms. Alfaro to receive an independent medical exam by Nerses Sanossian, l\/[.D., on June 7, 2013, in Los Angeles. On August 9, 2013, respondent filed the resulting examination report and Dr. Sanossian’s curriculum vitae. Exhibits N-O.

The same report was provided to Ms. Alfaro in Spanish.

Dr. Sanossian’s assessment found no correlation between l\/Is. Alfaro’s arm pain and the influenza vaccination she received on October 26, 20l0. Exhibit N at 7. Dr. Sanossian additionally stated that l\/Is. Alfaro’s tumor appeared to be an "incidental finding revealed by the extensive testing which was performed due to the physical complains exhibited by the patient," and that there was "no indication f that the injection was in a region where a nerve would be expected to travel." l_oL at 7-8.

2 Ms. Alfaro arranged for similar assistance'for each following status conference as well.

On january 27, 2014, a status conference was held to discuss Dr. Sanossian’s report and the next steps necessary to move the case forward. During this conference, the undersigned asked Ms. Alfaro if she planned to submit further evidence, l\/Is. Alfaro answered that she did not. Following the conference, Ms. Alfaro was given another opportunity to file any further evidence or medical expert opinion in support of her petition by l\/Iarch 3, 2014. §e__e_ order, issued Jan. 28, 2014. l\/ls. Alfaro filed nothing further. Accordingly, this case is now ready for adj udication.

II. Analysis To receive compensation under the National Vaccine Injury Compensation Program (hereinafter "the Program"), petitioner must prove either l) that l\/ls.

Alfaro 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. §e_e §§ 300aa-l3(a)(l)(A) and B()Oaa-l l(c)(l). An examination of the record did not uncover any evidence that l\/Is. Alfaro suffered a "Table lnjury." Thus, she is necessarily pursuing a causation-in-fact claim.

Under the Act, a 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 cfa competent physician. § 300aa-l3(a)(l). In this case, because the medical records and independent medical examination do not support l\/[s. Alfaro’s claim, a medical opinion must be offered in support. Ms. Alfaro, however, has offered no such opinion.

Accordingly, it is clear from the record in this case that l\/Is. Alfaro 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.

Any questions may be directed to my law clerk, Mary Holmes, at (202) 357- 6353.

IT IS S() ORDERED. l ~:..~ l Christian J. l\/I ran Special Master