REISSUED FOR PUBLICATION
SEP 11 2020
OSM
U.S. COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1026V
Filed: August 13, 2020
UNPUBLISHED
PATRICK MCRAE, Special Master Horner
Petitioner,
v. Decision Dismissing Petition;
Influenza (flu) vaccine;
SECRETARY OF HEALTH AND Migraine; Shoulder Pain;
HUMAN SERVICES, Severity Requirement; Six-
Month Sequalae
Respondent.
Patrick McRae, pro se, Jaratt, VA.
Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.
DECISION1
On July 17, 2019, petitioner filed a claim under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012), alleging that he suffered right shoulder and
arm pain and migraines following receipt of an influenza (“flu”) vaccine on February 2,
2019. (ECF No. 1.) 2 For the reasons discussed below, his petition is now dismissed.
I. Procedural History
This case was assigned to me on August 29, 2019. (ECF No. 8.) On September
6, 2019, I issued an Initial Order, providing petitioner with instructions on how to
proceed. Upon my review of the records, I found that the records filed were inadequate
to support petitioner’s claim. (ECF No. 9.) I explained that “in order to pursue this claim
petitioner will need to file additional medical records or a medical opinion that
1 Because this decision contains a reasoned explanation for the special master’s action in this case, it will
be posted on the United States Court of Federal Claims’ website in accordance with the E-Government
Act of 2002. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
2
“ECF No.” refers to the location of each document on the court’s electronic docket for this case.
corroborate petitioner’s allegation of continued residual effects of his alleged injury for
more than six months.” (Id. at 3.)
Petitioner filed additional records which were received by the court on January
28, 2020. (ECF No. 16.) However, upon my review of these additional records, I found
that petitioner had not provided any records showing his condition after March 8, 2019,
which was still within two months of his February 2, 2019 vaccination. On February 6,
2020, I gave petitioner another opportunity to file any additional records or medical
opinion to support his claim that would show that his injury lasted for at least six months.
(ECF No. 17.) However, no filings were made by petitioner.
On June 4, 2019, I issued an Order to Show Cause, giving petitioner one last
opportunity to show why this case should not be dismissed for failure to prosecute and
for insufficient proof. (ECF No. 20.) On July 20, 2020, petitioner filed a letter to the
Court, stating that
There is nothing els[e] that I could do to show you and court that I was
healthy and took this flu shot for the first time and was with pain in my
shoulder where I got this sh[ot] and that lasted a little over just one month
and I had a headache that never stopped almost as long as my shoulder
but it did not feel the same it had became my [new] normal. I did not get
sick or anything lasting for the time you spoke of, so I am healthy now and
would like to stop taking up any more of the court’s time.
(ECF No. 21.)
II. Discussion
In general, to receive compensation in the Vaccine Program, petitioner must
prove either (1) that he suffered a “Table Injury” – i.e., an injury falling within the
Vaccine Injury Table – corresponding to a covered vaccine, or (2) that he suffered an
injury that was actually caused by a covered vaccine. See §§ 13(a)(1)(A) and 11(c)(1).
To satisfy his burden of proving causation in fact, petitioner must show by preponderant
evidence: “(1) a medical theory causally connecting the vaccination and the injury; (2) a
logical sequence of cause and effect showing that the vaccination was the reason for
the injury; and (3) a showing of a proximate temporal relationship between vaccination
and injury.” Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1278 (Fed. Cir.
2005).
Additionally, however, when congress created the Vaccine Injury Program from
which petitioner is now seeking to recover compensation, they decided that only severe
vaccine injuries would be compensated. In order to state a claim for a vaccine injury
under the Vaccine Act, a vacinee must have either:
2
(i) suffered the residual effects or complications of such illness, disability,
injury, or condition for more than 6 months after the administration of the
vaccine, or (ii) died from the administration of the vaccine, or (iii) suffered
such illness, disability, injury or condition from the vaccine which resulted
in inpatient hospitalization and surgical intervention.
§300aa-11(c)(1)(D).
Congress also limited compensation only to those cases that are supported by
either medical records or the opinion of a competent physician. The Vaccine Act states
with regard to a finding that petitioner can recover for his injury that: “The special master
or court may not make such finding based on the claims of a petitioner alone,
unsubstantiated by medical records or medical opinion.” 42 U.S.C. § 300aa-13(a)(1).
In this case, petitioner has provided only one medical record showing a single
medical assessment on February 20, 2019, and has not provided any records showing
his condition after March 8, 2019. Moreover, in response to my Order to Show Cause,
petitioner indicated that his shoulder pain and headache lasted “a little over just one
month” and further confirmed that his injury did not persist for the required period of
time. (ECF No. 21, p.1.)
Petitioner’s alleged vaccine injury did not result in hospitalization or death and he
has documented that his injury lasted less than two months. He has therefore failed to
satisfy the statutory severity requirement pursuant to the Vaccine Act. Accordingly, I
DISMISS this petition for failure to establish a prima facie case of entitlement to
compensation.
III. Conclusion
This case is now DISMISSED. The clerk of the court is directed to enter
judgment in accordance with this decision.3
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by each party, either separately or
jointly, filing a notice renouncing the right to seek review.
3