Filed: Jun. 28, 2019
Latest Update: Jun. 28, 2019
Summary: DISMISSAL 1 HERBRINA D. SANDERS , Special Master . On May 21, 2018, Gerald L. Muensterman ("Petitioner") filed a petition on behalf of the estate of Cletus J. Muensterman for compensation under the National Vaccine Injury Compensation Program 2 ("Vaccine Program" or "Program"). 42 U.S.C. 300aa-10 to 34 (2012). Petitioner alleged that Mr. Muensterman developed a shoulder injury related to vaccine administration ("SIRVA") as a result of the pneumococcal vaccine he received on June 16, 20
Summary: DISMISSAL 1 HERBRINA D. SANDERS , Special Master . On May 21, 2018, Gerald L. Muensterman ("Petitioner") filed a petition on behalf of the estate of Cletus J. Muensterman for compensation under the National Vaccine Injury Compensation Program 2 ("Vaccine Program" or "Program"). 42 U.S.C. 300aa-10 to 34 (2012). Petitioner alleged that Mr. Muensterman developed a shoulder injury related to vaccine administration ("SIRVA") as a result of the pneumococcal vaccine he received on June 16, 201..
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DISMISSAL1
HERBRINA D. SANDERS, Special Master.
On May 21, 2018, Gerald L. Muensterman ("Petitioner") filed a petition on behalf of the estate of Cletus J. Muensterman for compensation under the National Vaccine Injury Compensation Program2 ("Vaccine Program" or "Program"). 42 U.S.C. § 300aa-10 to 34 (2012). Petitioner alleged that Mr. Muensterman developed a shoulder injury related to vaccine administration ("SIRVA") as a result of the pneumococcal vaccine he received on June 16, 2015. Pet. at 1, ECF No. 1. The information in the record, however, does not show entitlement to an award under the Program.
On June 26, 2019, Petitioner filed a motion for a decision dismissing his petition. ECF No. 28. In his motion, Petitioner conceded that, because Mr. Muensterman passed away on September 9, 2017, "[e]stablishing causation-in-fact . . . [would be] difficult." Id. at 2. Therefore, Petitioner continued, "dismissing the Petition is the most prudent course of action in order to avoid incurring additional fees and expenses unnecessarily." Id.
To receive compensation under the Program, Petitioner must prove either (1) that Mr. Muensterman suffered a "Table Injury"—i.e., an injury falling within the Vaccine Injury Table— corresponding to the vaccination, or (2) that he 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 any evidence that Mr. Muensterman suffered a "Table Injury." Further, the record does not contain persuasive evidence that Mr. Muensterman's alleged injuries were caused by the pneumococcal vaccine he received.
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 Petitioner has not filed a supportive opinion from an expert witness. Therefore, this case must be dismissed for insufficient proof. The Clerk of the Court shall enter judgment accordingly.3
IT IS SO ORDERED.
