VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_16-vv-00892 Package ID: USCOURTS-cofc-1_16-vv-00892 Petitioner: Kathleen Kunka Filed: 2016-11-28 Decided: 2017-01-05 Vaccine: influenza Vaccination date: 2013-09-28 Condition: peripheral neuropathy Outcome: dismissed Award amount USD: AI-assisted case summary: Kathleen Kunka filed a petition on July 27, 2016, alleging that she suffered peripheral neuropathy as a result of receiving a flu vaccine on September 28, 2013. The respondent was the Secretary of Health and Human Services. On November 28, 2016, Ms. Kunka moved for a dismissal decision, which the respondent did not oppose. To be eligible for compensation under the National Vaccine Injury Compensation Program, a petitioner must demonstrate residual effects of a vaccine injury lasting more than six months after vaccination, prove a "Table Injury" listed in the Vaccine Injury Table, or establish that the vaccination actually caused the injury. The record in this case did not establish that Ms. Kunka experienced residual effects for six months following the vaccination. Furthermore, the record did not contain evidence of a "Table Injury," nor did Ms. Kunka allege such an injury. The petition also lacked persuasive evidence indicating that the flu vaccine actually caused her alleged peripheral neuropathy. The Vaccine Act requires that claims be supported by medical records or the opinion of a competent physician. In this instance, the medical records were insufficient, and Ms. Kunka offered no supporting medical opinion. Special Master Thomas L. Gowen issued a decision on January 5, 2017, dismissing the case for insufficient proof, as Ms. Kunka failed to demonstrate residual effects for six months, a "Table Injury," or that the injury was actually caused by the flu vaccination. Howard D. Mishkind represented the petitioner, and Jennifer L. Reynaud represented the respondent. The decision was not to be published. Theory of causation field: Petitioner Kathleen Kunka alleged peripheral neuropathy from a flu vaccine administered on September 28, 2013. The case was dismissed by Special Master Thomas L. Gowen on January 5, 2017, upon petitioner's motion for dismissal due to insufficient proof. Petitioner failed to establish residual effects lasting more than six months post-vaccination, did not allege or prove a "Table Injury," and provided no persuasive evidence that the flu vaccine actually caused her alleged injuries. The petition lacked sufficient medical records and a competent physician's opinion to support the claim. Petitioner's counsel was Howard D. Mishkind, and respondent's counsel was Jennifer L. Reynaud. No specific mechanism of injury was presented or discussed in the public decision. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_16-vv-00892-0 Date issued/filed: 2017-01-05 Pages: 2 Docket text: PUBLIC DECISION (Originally filed: 11/28/2016) regarding 7 DECISION of Special Master ( Signed by Special Master Thomas L. Gowen.)(mpj) Copy to parties. -------------------------------------------------------------------------------- Case 1:16-vv-00892-UNJ Document 11 Filed 01/05/17 Page 1 of 2 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-892V Filed: November 28, 2016 [Not to be published] * * * * * * * * * * * * * KATHLEEN KUNKA, * * Special Master Gowen Petitioners, * v. * * Dismissal; Influenza (“Flu”) * Vaccine; Peripheral Neuropathy SECRETARY OF HEALTH * AND HUMAN SERVICES, * * Respondent. * * * * * * * * * * * * * * Howard D. Mishkind, Mishkind Law Firm Co., L.P.A., Beachwood, OH, for petitioners. Jennifer L. Reynaud, United States Department of Justice, Washington, DC for respondent. DECISION1 On July 27, 2016, Kathleen Kunka (“petitioner”) filed a petition pursuant to the National Vaccine Injury Compensation Program.2 Petitioner alleged that as a result of receiving a flu vaccine on September 28, 2013, she suffered peripheral neuropathy. Petition at ¶¶ 2-3. The information in the record, however, does not show entitlement to an award under the Program. On November 28, 2016, petitioner moved for a dismissal decision. Motion for a Decision, filed Nov. 28, 2016. Respondent does not oppose petitioner’s motion. To receive compensation under the Program, petitioner must establish that she suffered the residual effects or complications of her vaccine injury for more than six months after the administration of the vaccine. 42 U.S.C. 300aa-11(c)(1)(B)(i)(III). The record does not establish that petitioner has experienced residual effects of her alleged vaccine injury for six months. 1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post this decision on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to delete medical or other information, that satisfies the criteria in § 300aa- 12(d)(4)(B). Further, consistent with the rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, I agree that the identified material fits within the requirements of that provision, I will delete such material from public access. 2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-10 et seq. (hereinafter “Vaccine Act” or “the Act”). Hereafter, individual section references will be to 42 U.S.C. § 300aa of the Act. 1 Case 1:16-vv-00892-UNJ Document 11 Filed 01/05/17 Page 2 of 2 In addition, to receive compensation under the Program, petitioner must prove either (1) that she suffered a “Table Injury”—i.e., an injury falling within the Vaccine Injury Table— corresponding to the vaccination, or (2) that she suffered an injury that was actually caused by the vaccination. See §§ 13(a)(1)(A) and 11(c)(1). An examination of the record did not uncover any evidence that petitioner suffered a “Table Injury,” nor does petitioner allege that she suffered a “Table Injury.” The record does not contain any persuasive evidence indicating that petitioner’s alleged injuries were caused by the flu vaccine. Under the Vaccine Act, petitioner may not be given a Program award based solely on the petitioners’ claims alone. Rather, the petition must be supported by either medical records or by the opinion of a competent physician. § 13(a)(1). In this case, because there are insufficient medical records supporting petitioner’s claim, a medical opinion must be offered in support. Petitioner, however, has offered no such opinion. Accordingly, it is clear from the record in this case that petitioner has failed to demonstrate that she experienced residual effects of her alleged vaccine injury for six months, nor that she suffered a “Table Injury” or that the injuries were “actually caused” by the flu vaccination. Thus, this case is dismissed for insufficient proof. The Clerk shall enter judgment accordingly. IT IS SO ORDERED. / Thomas L. Gowen Thomas L. Gowen Special Master 2