NORA BETH DORSEY, Special Master
This matter is before the undersigned on respondent's Motion for Ruling on the Record. On July 27, 2012, Jeffrey Land ("petitioner") filed a petition for compensation under the National Vaccine Injury Compensation Program ("the Program"),
Respondent has chosen not to further defend this case. Respondent states that although she does not believe petitioner has established entitlement to compensation by a preponderance of the evidence, respondent "elects not to expend its limited resources to retain an expert to respond to Dr. Höke's report." Respondent's Motion for Ruling on the Record ("Resp't's Motion"), filed Feb. 12, 2014, at 7. Petitioner filed a response to Respondent's Motion on February 27, 2014. Petitioner's Response ("Pet'r's Response). Respondent requested that the undersigned decide the case on the record evidence as it stands. Resp't's Motion at 7.
As discussed below, the undersigned finds, based on a review of the record as a whole, that petitioner is entitled to compensation.
A review of the petition, Rule 4(c) report, as well as respondent's Motion and petitioner's response thereto, show that the parties do not dispute the relevant facts of this case. Thus, the undersigned will only briefly discuss the facts below.
Petitioner's medical history, prior to receiving the flu vaccination at issue in this case, was significant for chronic back pain, neck pain, pelvic pain, a limb-length discrepancy, and gastro-esophageal reflux disease. Pet. Ex. 2 at 14-15; Pet. Ex. 3 at 5, 22; Pet. Ex. 5 at 28.
On October 28, 2010, petitioner, who was 35-years-old at the time, received a flu vaccine at his place of employment. Pet. Ex. 3 at 4; Pet. Ex. 4 at 1-2. In his affidavit, petitioner states that
Pet. Ex. 6 at 1-2.
On November 1, 2010, petitioner was admitted to Port Huron Hospital with complaints of leg numbness, unsteadiness, and pain in his mid-back and left hip since October 30, 2010. Pet. Ex. 2 at 8. Petitioner could not move his left leg, and could not walk.
On November 2, 2010, petitioner was admitted to the hospital. Pet. Ex. 2 at 14. The admission report noted that petitioner's weakness and numbness began the previous day and that petitioner had received a flu vaccine "a couple of days ago."
A CT scan of petitioner's brain revealed no acute abnormalities. Pet. Ex. 2 at 18. MRIs of petitioner's brain and spinal cord were normal, and a lumbar puncture revealed no acute issues. Pet. Ex. 2 at 54, 70-71. Petitioner was started on intravenous Solu-Medrol, but his condition did not improve.
On November 4, 2010, petitioner was re-evaluated by Dr. Naguib. Pet. Ex. 2 at 56. Dr. Naguib stated:
By November 5, 2010, petitioner was able to put weight on his left leg with a walker. Pet. Ex. 2 at 57. On November 6, 2010, he experienced vomiting and nausea, which were felt to be a side effect of the IVIG.
By November 7, 2010, Dr. Naguib felt that petitioner had experienced "marvelous improvement." Pet Ex. 2 at 60. Petitioner was able to lift his left leg off of the bed, bend it, and flex it, and put weight on it.
Petitioner was discharged from Port Huron Hospital on November 8, 2010, with a discharge diagnoses of acute inflammatory/infectious polyneuropathy, numbness and weakness of the lower extremities, chronic pain syndrome and lower back pain, and nausea and vomiting. Pet. Ex. 2 at 12. He had improved significantly and was walking.
On November 11, 2010, petitioner was evaluated by Dr. Naguib as an outpatient. Pet. Ex. 1 at 44-45. Dr. Naguib noted that petitioner was "not back to normal but he is able now to put weight on the left lower extremity."
On January 4, 2011, petitioner underwent electromyogram ("EMG") and nerve conduction studies. Pet. Ex. 1 at 33. Dr. Naguib's impression was that petitioner suffered from a mild case of right sided pronator nerve mononeuropathy that was primarily demyelinating without evidence of acute denervation.
On January 12, 2011, petitioner underwent repeat EMG and nerve conduction studies, which revealed bilateral median nerve carpal tunnel syndrome at the wrist and a left ulnar nerve sensory mononeuropathy. Pet. Ex. 1 at 29. Dr. Naguib recommended lumbar epidural steroid injections for petitioner's back pain.
On March 2, 2011, petitioner was re-evaluated by Dr. Naguib. Pet. Ex. 1 at 15-16. He had experienced 75 percent improvement in his back pain from the lumbar epidural steroid injection.
On May 4, 2011, petitioner received another epidural steroid injection to treat his back pain. Pet. Ex. 1 at 11. He began a second course of physical therapy on May 18, 2011. Pet. Ex. 2 at 235. The evaluation indicated that petitioner experienced "mid-lower back pain, [right] leg numbness, [left] leg weakness . . . . Mechanism of injury: Flu-injection — spinal cord swelling — progressive (left) leg weakness."
Petitioner was seen by Dr. Naguib on June 29, 2011 for lumbar degenerative disc disease, a lumbar sprain with muscle stiffness, and acute inflammatory polyneuropathy. Pet. Ex. 1 at 4. Petitioner continued to experience weakness in his left leg and numbness in his right leg.
On July 14, 2011, petitioner was re-evaluated by Dr. Naguib. Pet. Ex. 1 at 1. His motor strength had improved in his left leg, and he had improved sensation in his right leg.
At an October 20, 2011 visit to Dr. Naguib, petitioner had returned to work, but continued to experience back pain, which Dr. Naguib attributed to discogenic pain. Pet. Ex. 8 at 20.
On December 14, 2011, petitioner underwent repeat EMG and nerve conduction studies. Pet. Ex. 8 at 14. Dr. Naguib felt that the studies revealed a right side sural nerve mononeuropathy showing mild demyelination across petitioner's ankle segment without active denervation.
On March 2, 2012, petitioner received another lumbar epidural steroid injection for his low back pain, and was told to return for repeat injections in one month, five months, and nine months. Pet. Ex. 8 at 1-2.
By August 2012, Dr. Naguib's impression was that petitioner suffered from an acute inflammatory polyneuropathy with residual weakness and lumbar radicular pain to the left leg, discogenic back pain, insomnia, and restless leg syndrome. Pet. Ex. 11 at 2-3.
A November 12, 2012 MRI of petitioner's thoracic spine was normal. Pet. Ex. 16 at 5. An MRI of the cervical spine showed a "compromise to multiple neural foramina as discussed in body report. There appears to be a slight increase of signal in the cord at C3-C4 and C5-C6." Pet. Ex. 16 at 3-4.
A December 19, 2012 brain MRI was normal. Pet. Ex. 16 at 1. One month later, Dr. Aboukasm, a neurologist, noted that petitioner had "transverse myelitis with residual myelopathy." Pet. Ex. 18 at 2-3. Petitioner's prescription for physical therapy was renewed.
Petitioner next saw Dr. Aboukasm on August 5, 2013, who noted that petitioner "continues to use Percocet 10/325 four times a day to manage his back pain. He continues to be active at work; however, overall his physical activity has declined significantly since he had the transverse myelitis . . . ." Pet. Ex. 21 at 4-5.
Special masters may determine whether a petitioner is entitled to compensation based upon the record. A hearing is not required. 42 U.S.C. § 399aa-13; Vaccine Rule 8(d).
To be awarded compensation under the Vaccine Act, 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 the vaccinations in question, which creates a presumption that the injury was caused by the vaccination, or 2) that his medical problems were caused by the vaccine(s) at issue.
On the issue of a table injury, petitioner may not take advantage of any presumption because the Table does not compensate for an association between the vaccination at issue here, the flu vaccination, and his alleged injuries. 42 C.F.R. § 100.3(a). Further, petitioner has not alleged that he suffered from a "table injury," and there is no evidence that any "table injury" occurred. As a result, petitioner cannot be deemed entitled to compensation on that basis.
Because petitioner cannot prevail based on a showing that he has a "table injury," petitioner bears the burden of proving that the vaccination caused the injury for which he seeks compensation.
Dr. Höke opined that the primary theory that drives his opinion is molecular mimicry which is a process by which "antigenic determinants of the microorganisms are recognized by the host's immune system as similar to its own antigenic determinants and, because of the structural resemblances, antibodies and auto-reactive T cells not only destroy the invading pathogen but can react with host tissues as well . . . ."
Based on the evidence presented by petitioner, the undersigned finds that petitioner has provided a reliable medical theory connecting the flu vaccine and his transverse myelitis. Thus, petitioner has satisfied
Pet. Ex. 19 at 3-5.
Petitioner's treating physicians also noted an association between petitioner's injuries and his flu vaccination as noted above.
Petitioner received his vaccination on October 28, 2010. Pet. Ex. 4 at 1-2. By October 31, 2010, petitioner had difficulty moving his toes and walking. Pet. Ex. 6 at 1-2. On November 1, 2010, he experienced numbness and tingling in his lower extremities. Pet. Ex. 2 at 18-21.
Dr. Höke stated that "A careful review of the literature evaluating the association between transverse myelitis and influenza vaccine between 1970 and 2009 shows that transverse myelitis after influenza vaccine is often underreported and the time from the vaccine to onset of transverse myelitis range from few days to few months." Pet. Ex. 19 at 4; Pet. Ex. 19, Tabs A, C, E, G, M.
Based on the information set forth by petitioner, the undersigned finds that petitioner has satisfied
In choosing not to defend the case, respondent has not presented any evidence that a factor unrelated to the flu vaccine caused petitioner's injuries. In addition, the medical records do not identify any alternative cause of petitioner's injuries.
In view of respondent's position and of the undersigned's review of the entire record, see § 300aa-13(a)(1), the undersigned finds that petitioner is entitled to compensation for an injury that was caused-in-fact by a covered vaccine. 42 C.F.R. § 100.3(a)(XIV);
