Blesi v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 15-208V Filed: February 17, 2016 Unpublished

**************************** TAMIE BLESI, * * Petitioner, * Petitioner’s Motion for a Decision * Dismissing Her Petition; Influenza (“Flu”) v. * Vaccine; Shoulder Injury; Insufficient * Proof of Causation; Vaccine Act SECRETARY OF HEALTH AND * Entitlement; Denial Without Hearing HUMAN SERVICES, * Special Processing Unit (“SPU”) * Respondent. * * **************************** Maximillian Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.

Traci Patton, U.S. Department of Justice, Washington, DC, for respondent.

DECISION 1

Dorsey, Chief Special Master: On March 2, 2015, Tamie Blesi (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act” or “Program”). 3 Petitioner alleges that she suffered an injury to her left shoulder as a result of an influenza vaccination she received on December 4, 2012. Petition at ¶¶ 1-12. The information in the record does not show entitlement to an award under the Program.

2National 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).

On February 15, 2016, petitioner moved for a decision dismissing her petition, acknowledging that insufficient evidence exists to demonstrate entitlement to compensation. (ECF No. 26). Petitioner indicated in her motion that “[a]n investigation of the facts and science supporting her case ha[s] demonstrated to petitioner that she will be unable to prove that she is entitled to compensation in the Vaccine Program.” Id. Petitioner further indicated that she “understands that a decision by the [undersigned] dismissing her petition will result in a judgment against her. [She] has been advised that such a judgment will end all of her rights in the Vaccine Program.” Id. 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 a covered vaccine, or 2) that she suffered an injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1). Examination of the record does not disclose any evidence that petitioner suffered a “Table Injury.” Further, the record does not contain a medical expert’s opinion or any other persuasive evidence indicating that petitioner’s alleged injury was vaccine-caused.

Under the Vaccine Act, a petitioner may not be awarded compensation based on the petitioner’s claims alone. Rather, the petition must be supported by either the medical records or by a medical opinion. § 13(a)(1). In this case, the record does not contain medical records or a medical opinion sufficient to demonstrate that the vaccinee was injured by a vaccine. For these reasons, and in accordance with § 12(d)(3)(A), petitioner’s claim for compensation is denied and this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. 4 IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master