Kabelitz v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: May 31, 2022

* * * * * * * * * * * * * * * SHARON KABELITZ, * No. 17-466V

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Petitioner, * Special Master Sanders

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v. *

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SECRETARY OF HEALTH * Dismissal; Insufficient Proof; Influenza AND HUMAN SERVICES, * (“Flu”) Vaccine; Shoulder Injury Related to

* Vaccine Administration (“SIRVA”)

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Respondent. *

* * * * * * * * * * * * * * * Leah V. Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner. Adriana R. Teitel, U.S. Department of Justice, Washington, DC, for Respondent.

DISMISSAL1

On March 31, 2017, Sharon Kabelitz (“Petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that she suffered from a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine administered on November 5, 2015. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.

On February 17, 2022, I issued a Fact Ruling determining that Petitioner has not provided preponderant evidence that her shoulder injury manifested within forty-eight hours after her vaccination. Fact Ruling at 1, ECF No. 67. On May 19, 2022, Petitioner filed a motion for a decision dismissing her petition. ECF No. 73. Petitioner stated that the record is now complete. Id. at 1. Respondent does not object to Petitioner’s motion. Id. at 2.

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 the vaccination, or (2) that she suffered an injury that was actually caused by a vaccine. See §§ 13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that Petitioner suffered a “Table Injury.” Further, the record does not contain persuasive evidence that Petitioner’s alleged injuries were caused by the flu vaccine.

Under the Act, petitioners may not be given a Program award based solely on their claims alone. Rather, the petition must be supported by medical records or the opinion of a competent physician. § 13(a)(1). In this case, the medical records are insufficient to prove Petitioner’s claim, and at this time, Petitioner has not filed a supportive opinion on causation from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master