Getman v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

No. 12-914V Filed: September 15, 2014

(Not to be published) *********************************************** VIVIAN GETMAN, *

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Petitioner, * Dismissal Decision; Flu vaccine; CIDP; v. * GBS; No Expert Report

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SECRETARY OF THE DEPARTMENT * OF HEALTH AND HUMAN SERVICES, *

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Respondent. *

*********************************************** Diana Stadelnikas Sedar, Esq., Maglio, Christopher & Toale, PA, Sarasota, Fl, for petitioner.

Althea Davis, Esq., U.S. Department of Justice, Washington, DC for respondent.

DISMISSAL DECISION1 Gowen, Special Master:

On December 26, 2012, petitioner filed a petition for Vaccine Compensation in the National Vaccine Injury Compensation Program [“the Program”],2 alleging that the flu vaccine she received on October 26, 2010, caused her injuries diagnosed as CIDP versus Guillain-Barre syndrome [GBS]. Petition at 1-2. The information in the record, however, does not show entitlement to an award under the Program. On August 28, 2014, petitioner moved for a decision on the record and indicated within her motion that she would not be filing a medical expert opinion in this matter. Petitioner’s Motion for Decision on the Record, filed Aug. 28, 2014.

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 §§ 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