Filed: Jul. 19, 2019
Latest Update: Jul. 19, 2019
Summary: Not to be Published DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1 KATHERINE E. OLER , Special Master . On January 31, 2018, Michael Cericola ("Petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 2 alleging that he suffered from a right Shoulder Injury Related to Vaccine Administration ("SIRVA") as a result of the influenza ("flu") vaccination that he received on October 3, 2016. Petition ("Pet.") at 1, ECF No. 1. This case was origi
Summary: Not to be Published DECISION DISMISSING CASE FOR INSUFFICIENT PROOF 1 KATHERINE E. OLER , Special Master . On January 31, 2018, Michael Cericola ("Petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program, 2 alleging that he suffered from a right Shoulder Injury Related to Vaccine Administration ("SIRVA") as a result of the influenza ("flu") vaccination that he received on October 3, 2016. Petition ("Pet.") at 1, ECF No. 1. This case was origin..
More
Not to be Published
DECISION DISMISSING CASE FOR INSUFFICIENT PROOF1
KATHERINE E. OLER, Special Master.
On January 31, 2018, Michael Cericola ("Petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program,2 alleging that he suffered from a right Shoulder Injury Related to Vaccine Administration ("SIRVA") as a result of the influenza ("flu") vaccination that he received on October 3, 2016. Petition ("Pet.") at 1, ECF No. 1. This case was originally assigned to Chief Special Master Nora Beth Dorsey as part of the Special Processing Unit. ECF No. 4.
On May 20, 2019, Respondent filed a Rule 4(c) Report. ECF No. 24. Respondent stated that Petitioner had not satisfied his burden of proof, specifically noting that Petitioner had not provided medical records or a medical expert report establishing the following, that: (1) Petitioner's vaccination was administered in the right shoulder, (2) Petitioner right shoulder injury did not predate his vaccination, (3) Petitioner's onset of right shoulder pain occurred within 48 hours of vaccination, and (4) Petitioner's right shoulder pain was consistent with SIRVA. Id. at 4-5. Respondent further argued that Petitioner had failed to establish that "he suffered the residual effects or complications of his alleged shoulder injury for more than six months after vaccine administration as required by Section 11(c)(1)(D) of the Vaccine Act." Id. at 6.
This case was reassigned to my docket on May 30, 2019. ECF No. 26.
On July 19, 2019, Petitioner filed the present motion to dismiss his claim and a supplemental declaration, indicating that "[a]n investigation of the facts and science supporting his case has demonstrated to [Petitioner] that he will be unable to prove that he is entitled to compensation in the Vaccination Program." See Petitioner's Motion to Dismiss, ECF Nos. 29-31.
To receive compensation under the Vaccine Program, a petitioner must prove either (1) that he suffered a "Table Injury" — i.e., an injury falling within the Vaccine Injury Table — corresponding to one of his vaccinations, or (2) that he suffered an injury that was actually caused by a vaccine. See Sections 13(a)(1)(A) and 11(c)(1). Moreover, under the Vaccine Act, a petitioner may not receive a Vaccine Program award based solely on his claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent medical expert. Section 13(a)(1). In this case, however, there is insufficient evidence in the record for Petitioner to meet his burden of proof. Petitioner's claim, therefore, cannot succeed and in accordance with his motion, must be dismissed. Section 11(c)(1)(A).
Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly.3
IT IS SO ORDERED.
