Filed: Jun. 08, 2018
Latest Update: Jun. 08, 2018
Summary: DECISION ON ENTITLEMENT 1 THOMAS L. GOWEN , Special Master . On March 2, 2015, Andrew Bussa ("Mr. Bussa") filed a claim in the National Vaccine Injury Compensation Program. 2 He alleged that as a result of receiving an influenza ("flu") vaccination on October 24, 2013, he developed Guillain-Barr Syndrome ("GBS"), with residual effects lasting for more than six months. Petition (ECF No. 1); Amended Petition (ECF No. 21). After Mr. Bussa passed away on February 1, 2016, Ms. Donata Tina Bu
Summary: DECISION ON ENTITLEMENT 1 THOMAS L. GOWEN , Special Master . On March 2, 2015, Andrew Bussa ("Mr. Bussa") filed a claim in the National Vaccine Injury Compensation Program. 2 He alleged that as a result of receiving an influenza ("flu") vaccination on October 24, 2013, he developed Guillain-Barr Syndrome ("GBS"), with residual effects lasting for more than six months. Petition (ECF No. 1); Amended Petition (ECF No. 21). After Mr. Bussa passed away on February 1, 2016, Ms. Donata Tina Bus..
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DECISION ON ENTITLEMENT1
THOMAS L. GOWEN, Special Master.
On March 2, 2015, Andrew Bussa ("Mr. Bussa") filed a claim in the National Vaccine Injury Compensation Program.2 He alleged that as a result of receiving an influenza ("flu") vaccination on October 24, 2013, he developed Guillain-Barré Syndrome ("GBS"), with residual effects lasting for more than six months. Petition (ECF No. 1); Amended Petition (ECF No. 21). After Mr. Bussa passed away on February 1, 2016, Ms. Donata Tina Bussa, as executor of his estate, was substituted as the petitioner. See Order (ECF No. 46).
On June 6, 2018, petitioner filed a motion for a decision dismissing this claim. Petitioner's Motion (ECF No. 68). The motion provides that petitioner has been unable to secure further evidence required by the Court to prove entitlement to compensation in the Vaccine Program. Petitioner is aware that a decision by the special master dismissing the petition will result in a judgment against petitioner and will end all of petitioner's rights in the Vaccine Program. Id. Petitioner intends to protect her rights to file a civil action in the future. Therefore, pursuant to 42 U.S.C. § 300aa-21(a)(2), petitioner intends to elect to reject the Vaccine Program judgment and to file a civil action. Id. at 2. This matter is now ripe for review.
Under the Vaccine Act, the Program may not award compensation solely based on a petitioner's own claims. Rather, a petitioner must support his claim with either medical records or the opinion of a competent physician. §13(a)(1). Several challenges to petitioner's claim have been apparent over the past three years it has been pending. The first challenge would be to establish whether Mr. Bussa actually developed GBS, considering that his symptoms had a rapid onset and then improved without receipt of the usual treatments for GBS, namely, intravenous immunoglobulin ("IVIG") and/or plasma exchange. Mr. Bussa's symptoms may be alternately explained by a posterior circulation stroke or a transient ischemic attack ("TIA"). If petitioner established that Mr. Bussa did have GBS, a further challenge would be to establish that he experienced the residual effects of GBS for at least six months. This would necessitate addressing whether Mr. Bussa's increased fatigue and weakness were more likely related to his numerous preexisting comorbidities. However, the medical records reflect that Mr. Bussa complained about dizziness, weakness, and fatigue prior to receiving the vaccination.
In this case, there is insufficient evidence by way of either medical records or expert opinion to carry petitioner's burden of proof. Petitioner's claim therefore cannot succeed and must be dismissed. §11(c)(1)(A).
Thus, this case is dismissed for insufficient proof. The Clerk of the Court shall enter judgment accordingly.
IT IS SO ORDERED.
