VICP Registry Case Source Bundle Canonical URL: https://vicp-registry.org/case/USCOURTS-cofc-1_17-vv-00243 Package ID: USCOURTS-cofc-1_17-vv-00243 Petitioner: A.B. Filed: 2017-02-21 Decided: 2025-10-20 Vaccine: hepatitis B Vaccination date: 2014-10-02 Condition: Bell's palsy Outcome: compensated Award amount USD: 129346 AI-assisted case summary: A.B., a 46-year-old pharmacist, filed a petition for compensation under the National Vaccine Injury Compensation Program on February 21, 2017, alleging that a hepatitis B vaccination received on October 2, 2014, caused him to develop Bell's palsy. The Special Master issued a Ruling on Entitlement on September 20, 2021, finding that A.B. was entitled to compensation. The case then proceeded to the damages phase. A subsequent ruling on June 26, 2024, addressed A.B.'s claim for lost wages, awarding compensation for the period of October 6 to October 17, 2014. The final decision on November 14, 2025, awarded A.B. a total of $129,346.32. This amount included $125,000.00 for pain and suffering, $3,131.00 for lost wages, and $1,215.32 for past unreimbursable expenses. The court found that while A.B. experienced a moderately severe Bell's palsy with some emotional distress, his physical recovery was excellent, and his emotional distress was not consistently attributed to the Bell's palsy after April 2016. The court also noted inconsistencies in A.B.'s affidavits compared to contemporaneous medical records, particularly regarding his pre-vaccination health and the duration of his symptoms. The final award reflects the severity and duration of his Bell's palsy and associated emotional distress, while acknowledging his good physical recovery and the limited timeframe of distress directly linked to the vaccine injury. Petitioner was represented by Richard Gage of Richard Gage, P.C., and the Respondent was represented by Colleen Clemons Hartley of the U.S. Department of Justice. Special Master Nora Beth Dorsey presided over the case. Theory of causation field: Third hepatitis B vaccine on October 2, 2014, age 46, followed four days later by Bell's palsy. COMPENSATED. Petitioner relied on Dr. Marcel Kinsbourne and Dr. Vera Byers, including innate immune/Toll-like receptor cytokine inflammation and demyelination of the facial nerve. Respondent disputed causation. Entitlement was granted September 20, 2021, damages proceedings followed, and final damages decision was filed October 20, 2025; award recorded as $129,346. Public staged source text: ================================================================================ DOCUMENT 1: USCOURTS-cofc-1_17-vv-00243-0 Date issued/filed: 2021-10-20 Pages: 23 Docket text: PUBLIC RULING (Originally filed: 9/20/2021) regarding 75 Ruling on Entitlement. Signed by Special Master Nora Beth Dorsey. (mca) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 1 of 23 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: September 20, 2021 * * * * * * * * * * * * * * * * * * * * * * * * * ARON BERAKI * PUBLISHED * Petitioner, * No. 17-243V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Ruling on Entitlement; Causation-in-Fact; AND HUMAN SERVICES, * Hepatitis B Vaccine; Bell’s Palsy. * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Richard Gage, Richard Gage, P.C., Cheyenne, WY, for petitioner. Adriana Ruth Teitel, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 I. INTRODUCTION On February 21, 2017, Aron Beraki (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2012).2 Petitioner alleges that he suffered from Bell’s palsy as the result of a hepatitis B vaccination he received on October 2, 2014. Petition at 1 (ECF No. 1). 1 The undersigned intends to post this Ruling on the United States Court of Federal Claims’ website. This means the Ruling 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, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. Because this Ruling contains a reasoned explanation for the action in this case, undersigned is required to post it 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). 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2012). All citations in this Ruling to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 2 of 23 After carefully analyzing and weighing the evidence in accordance with the applicable legal standards, the undersigned finds that petitioner has provided preponderant evidence that the hepatitis B vaccine he received caused him to develop Bell’s palsy, which satisfies his burden of proof under Althen v. Secretary of Health & Human Services, 418 F.3d 1274, 1280 (Fed. Cir. 2005). Accordingly, petitioner is entitled to compensation. II. PROCEDURAL HISTORY Petitioner filed medical records in support of his petition from March 21, 2017 through June 26, 2017. Petitioner’s Exhibits (“Pet. Exs.”) 1-8. On July 31, petitioner filed a Statement of Completion, stating that all relevant medical records had been filed. Statement of Completion, filed July 31, 2017 (ECF No. 10). However, on September 28, 2017, respondent filed a status report, identifying and requesting a number of outstanding records, as well as a copy of petitioner’s social security disability application and related file. Respondent’s (“Resp.”) Status Report (“Rept.”), filed Sept. 28, 2017 (ECF No. 11). Petitioner filed medical records and an affidavit regarding his records on December 27, 2017. Pet. Exs. 9-10. Petitioner filed his second Statement of Completion on February 13, 2018. Statement of Completion, filed Feb. 13, 2018 (ECF No. 16). Subsequently, on March 30, 2018, respondent filed a Rule 4(c) Report in which he concluded that petitioner had not established evidence of “six months of residual symptoms associated with his alleged vaccine injury of Bell’s palsy.” Resp. Rept. at 9 (ECF No. 17). Respondent also asserted that petitioner had not established a causal association between his vaccination and his alleged injury. Id. In addition, respondent identified additional outstanding records and documents needed. See id. Petitioner filed additional records over the next six months, and his third Statement of Completion on September 28, 2018. Pet. Exs. 11-14; Statement of Completion, filed Sept. 28, 2018 (ECF No. 25). On February 22, 2019, petitioner filed an amended petition, alleging that “his Bell’s Palsy and subsequent related issues were caused by his October 2, 2014 Hepatitis B vaccine.” Amended (“Am.”) Petition at 1 (ECF No. 29). Thereafter, the parties filed their respective expert reports and supporting medical literature. Pet. Exs. 15-40; Resp. Exs. A-D. Petitioner filed a Motion for Ruling on the Record on November 17, 2020, and then filed his supporting memorandum on January 19, 2021. Pet. Motion for Ruling on the Record (“Pet. Mot.”), filed Nov. 17, 2020 (ECF No. 55); Pet. Memorandum (“Memo.”), filed Jan. 19, 2021 (ECF No. 57). Respondent filed medical literature and a Response to the Motion for Ruling on the Record on April 19, 2021. Resp. Ex. F; Resp. Response to Pet. Mot. (“Resp. Response”), filed Apr. 19, 2021 (ECF No. 66).3 Petitioner filed his Reply on May 21, 2021. Pet. Reply to Resp. Response (“Pet. Reply”), filed May 21, 2021 (ECF No. 69). This matter is now ripe for adjudication. 3 Petitioner requested the ruling on the record in lieu of a hearing. Respondent did not object, and agreed that it was appropriate for the undersigned to resolve this case by a ruling on the record. See Resp. Response at 1 n.1. 2 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 3 of 23 III. ISSUES TO BE DECIDED The parties agree that the petitioner was diagnosed with Bell’s palsy, and thus, they do not dispute diagnosis. However, they dispute causation. Respondent argued that petitioner failed to show by preponderant evidence that the hepatitis B vaccination administered on October 2, 2014 caused petitioner’s Bell’s palsy. Resp. Response at 12. Therefore, respondent asserts that petitioner is not entitled to compensation under the Vaccine Act. Id. IV. MEDICAL TERMINOLOGY Bell’s palsy is a peripheral nerve disease involving the facial nerve (seventh cranial nerve)4 which affects “facial functions and appearance.” Pet. Ex. 26 at 1.5 The clinical presentation of Bell’s palsy is characterized by “weak eyebrow lifting, incomplete eye closure, drooping mouth corner, dry eye, loss of taste sensitivity, hyperacusis[6] and ear pain.” Id. There are a number of causes for facial nerve palsy, including idiopathic (referred to as Bell’s palsy), infection, congenital, trauma, tumors, and others. Id. Bell’s palsy refers to those cases where the cause is unknown, and alternative causes have been excluded. Id. V. FACTUAL SUMMARY A. Summary of Relevant Facts The facts are not in dispute. Petitioner, a pharmacist, was 46 years of age when he received his third hepatitis B vaccination,7 on October 2, 2014, in his left arm. Pet. Ex. 1 at 6. Petitioner’s chiropractic records establish that pre-vaccination, he had a history of low back pain, but his medical history is non-contributory as it relates to his Bell’s palsy. See generally Pet. Ex. 2. 4 Bell’s palsy may involve other nerves as well. See A. Greco et al., Bell’s Palsy and Autoimmunity, 12 Autoimmunity Rev. 323 (2012). Greco et al. states that, “[i]t has been proposed that Bell’s palsy is in fact a polyneuropathy, as the facial paralysis may be associated with involvement of other cranial nerves.” Pet. Ex. 19 at 4. 5 Yang Zhao et al., Advances in Diagnosis and Non-Surgical Treatment of Bell’s Palsy, 10 J. Otology 7 (2015). 6 Hyperacusis is exceptionally acute hearing, the hearing threshold being unusually low. Hyperacusis, Dorland’s Online Med. Dictionary, https://www.dorlandsonline.com/dorland/ definition?id=23650 (last visited Aug. 25, 2021). It may or may not be accompanied by pain. Id. 7 The hepatitis B vaccine is given in a series of three doses on a zero, one-month, and six-month schedule. See Pet. Ex. 41 at 2. Petitioner received the ENGERIX-B vaccine. Pet. Ex. 1 at 6. 3 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 4 of 23 On October 6, 2014, petitioner presented to neurologist Dr. Shahbuddin Mukardamwala, with weakness of the left side of his face. Pet. Ex. 3 at 1. Petitioner reported that he had received the hepatitis B vaccine the prior Thursday (October 2, 2014), and that the following day, Friday (October 3, 2014), he had a severe headache involving the left postauricular8 area. Id. By Saturday (October 4, 2014), petitioner was unable to close his left eye and he had numbness of the left side of his face. Id. He sought treatment at a local emergency room, where he was noted to have neuropathic pain. Pet. Ex. 7 at 2. Petitioner denied having any urinary tract infection, upper respiratory infection, fever, or recent travel. Pet. Ex. 3 at 1. Dr. Mukardamwala’s physical exam revealed that petitioner was unable to wrinkle the left side of his forehead, that he had left eye closure weakness, and left nasolabial flattening. Id. Dr. Mukardamwala diagnosed petitioner with “left peripheral seventh nerve palsy, likely idiopathic” and prescribed prednisone, Valtrex,9 Vitamin B12, and pain medication. Id. at 2. Petitioner presented to Dr. Mukardamwala on October 13, 2014, with worsening of his left postauricular pain. Pet. Ex. 3 at 3. MRI of the brain performed on October 14, 2014 did not show any acute intracranial process. Pet. Ex. 5 at 15. Petitioner was advised to discontinue Valtrex. Pet. Ex. 3 at 3. To address the pain, petitioner underwent an occipital nerve block on October 17, 2014. Id. at 4. On January 5, 2015, petitioner saw Dr. Mukardamwala for follow-up, and he complained of panic attacks and night terrors. Pet. Ex. 3 at 7. His Bell’s palsy had improved—he had a symmetric smile and symmetric forehead wrinkling. Id. He was prescribed Paxil 20 mg to be taken twice daily for anxiety and melatonin at night for sleep. Id. Petitioner returned on February 24, 2015, with complaints of “left facial tightness and facial spasms.” Id. at 8. Warm compresses and methocarbamol10 were prescribed for facial tightness and spasms, and his dose of Paxil was decreased. Id. Petitioner was also referred to psychiatry. Id. Dr. Salah Qureshi, a psychiatrist, saw petitioner on March 11, 2015. Pet. Ex. 6 at 1. Petitioner reported facial pain, anxiety, and depression. Id. at 4. Dr. Qureshi prescribed Effexor.11 Id. at 5. Dr. Qureshi continued to see and treat petitioner over a period of several 8 The postauricular area is behind or posterior to the auricle, the exterior portion of the ear. Dorland’s Illustrated Medical Dictionary 1479 (33d ed. 2020). 9 Valtrex (valacyclovir) is an antiviral medication used to treat infections with herpes zoster (shingles), herpes simplex genitalis (genital herpes), and herpes labialis (cold sores). Valtrex, RxList, https://www.rxlist.com/valtrex-side-effects-drug-center.htm (last visited Aug. 25, 2021). 10 Methocarbamol is indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions. Methocarbamol, RxList, https://www.rxlist.com/consumer_methocarbamol_robaxin/drugs-condition.htm (last visited Aug. 25, 2021). 11 Effexor (venlafaxine) is used to treat depression, anxiety, panic attacks, and social anxiety disorder (social phobia). Venlafaxine, RxList, https://www.rxlist.com/consumer_venlafaxine_ effexor_effexor_xr/drugs-condition.htm (last visited Aug. 25, 2021). 4 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 5 of 23 years. See generally Pet. Ex. 8. On October 20, 2015, Dr. Qureshi diagnosed petitioner with post-traumatic stress disorder (“PTSD”). Id. at 6. In April 2016, petitioner reported that he was going through a divorce, had financial stress, and was caring for his two-year-old daughter. Id. at 8. On August 25, 2017, petitioner underwent a medical examination for a social security disability determination by Dr. Ron Kirkwood. Pet. Ex. 14 at 3. Dr. Kirkwood noted that petitioner continued to have palsy on the left side of his face, and that it affected his eye. Id. Petitioner presented to Dr. Raghu Athre on April 25, 2018, complaining of tightness in the left side of his face. Pet. Ex. 11 at 1. Dr. Athre documented that petitioner had “complete facial nerve movement on the left side. . . . [Petitioner’s] cosmetic outcome after Bell’s palsy [was] excellent.” Id. B. Petitioner’s Affidavit Petitioner executed an affidavit on February 28, 2019. In it, petitioner averred that he received the hepatitis B vaccine at issue on Thursday, October 2, 2014. Pet. Ex. 15 at ¶ 1. Afterward, he experienced pain in his left arm where the vaccine was administered. Id. On the evening of October 2, he had “general malaise and soreness.” Id. On Friday morning, October 3, 2014, he opened the pharmacy where he worked. Id. at ¶ 2. His arm was sore, but otherwise, he was fine. Id. That afternoon, he began having a headache. Id. His headache continued and became severe, with “sharp piercing pain behind his left ear, and [his] left eye was mildly burning with flowing tears.” Id. On Sunday, October 5, 2014, petitioner’s pain, eye burning, and tearing continued. Id. at ¶ 3. When he arrived home after work, and looked in the mirror, he saw that his “face was deformed.” Id. His left eye did not blink or close, his mouth could not hold water when he tried to brush his teeth, the left side of his face had no feeling, he was unable to chew food, and his mouth was drooping on the left side. Id. Petitioner “thought he was having a stroke,” and so he drove himself to an emergency room. Id. At the emergency room, petitioner was given medication for his severe headache. Pet. Ex. 15 at ¶ 4. The “sharp piercing pain behind [his] left ear continued for 3-4 months” and did not respond to medical treatment and so petitioner had a nerve block. Id. at ¶ 5. Petitioner also had numbness of his “tongue for approximately six months.” Id. As of the date of the affidavit, petitioner continued to “experience tightness and spasms in the left corner of [his] mouth, the left side of his face, and the top of [his] left eye below [the] eyebrow.” Pet. Ex. 15 at ¶ 6. Petitioner also has fatigue and spasms of his left eye. Id. He avoids smiling because his smile is not symmetric. Id. Due to his Bell’s palsy, petitioner averred that he “developed chronic anxiety, depressive episodes, nightmares due to panic attacks at night, and chronic insomnia.” Pet. Ex. 15 at ¶ 7. He further alleged that he has been “diagnosed with PTSD and chronic insomnia,” and that he sees a psychiatrist and takes medication to treat these conditions. Id. 5 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 6 of 23 C. Expert Reports 1. Petitioner – Dr. Marcel Kinsbourne a. Background and Qualifications Dr. Kinsbourne earned his B.A. from Christ Church at Oxford University. Pet. Ex. 27 at 1. He earned his Bachelor of Medicine and Bachelor of Surgery from Oxford University Medical School. Id. He also earned an M.A. and a Doctor of Medicine from Oxford University. Id. From 1974 to 1980, he was the Senior Staff Physician at the Hospital for Sick Children in Toronto, and also the Director of the Behavioral Neurology Unit at Boston University’s Sargent College of Allied Health Professions from 1973 to 1982. Id. at 2. Dr. Kinsbourne also served as the Director of the Behavioral Neurology Department at the Eunice Kennedy Shriver Center from 1980 to 1991. Id. Throughout his career, Dr. Kinsbourne has held teaching positions at various institutions. Id. Dr. Kinsbourne has served and is currently serving on a number of editorial boards, including Archives of Clinical Neuropsychology and Cognitive Neuropsychiatry. Id. at 3. He has authored or co-authored more than 400 publications. Id. at 5- 39. b. Opinion Dr. Kinsbourne agreed with petitioner’s treating physicians that petitioner had Bell’s palsy. He explained that Bell’s palsy is “either partial or complete isolated (‘mononeuritic’) paralysis of the seventh facial nerve.” Pet. Ex. 16 at 3. The onset is acute, and the paralysis peaks two to three days after onset, and then may gradually decrease, and even completely resolve. Id. Symptoms may also include postauricular pain, as well as changes in sensation of the face and taste perception. Id. i. Althen Prong One: Medical Theory of Causation Dr. Kinsbourne proposed an innate immune system theory involving the Toll-like receptor (“TLR”) system, resulting in the release of proinflammatory cytokines, to explain how the hepatitis B vaccine can cause Bell’s palsy.12 Pet. Ex. 16 at 5. The first tenet of petitioner’s theory is based on onset as it relates to the immune system. Dr. Kinsbourne opined that the “brief temporal interval between [] vaccination and [] onset of neuropathy” implicates the innate immune system, “which is activated almost immediately after an immune challenge by . . . vaccination.” Pet. Ex. 16 at 5. Due to the short onset period, Dr. Kinsbourne opined that the often-cited adaptive immune system theory of molecular mimicry is not applicable here. Id. The Greco et al. article, referenced by Dr. Kinsbourne, provides an overview of current knowledge about the causes of Bell’s palsy. See Pet. Ex. 19. While there are suggested 12 Dr. Kinsbourne also discussed autoimmune causes of Bell’s palsy. However, this Ruling focuses on the theory based on proinflammatory cytokines. 6 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 7 of 23 etiologies and mechanisms, the authors emphasized that the cause of the condition is not known. Id. at 3. They opined that viral infection and immune causal mechanisms may be at play.13 Id. at 3-4. The second tenet of Dr. Kinsbourne’s theory of innate immune system response is that the hepatitis B vaccination “activated the TLRs of the innate immune system, which in turn cause[d] the release of proinflammatory cytokines.” Pet. Ex. 16 at 5. Proinflammatory cytokines are accessible to the peripheral nerves (like the facial nerve) because “the blood-nerve- barrier is thinner and more permeable than the blood-brain-barrier.” Id. Dr. Kinsbourne stated that the “peripherally produced cytokines caused headache” and demyelination of the seventh cranial nerve. Id. An article by Zhang and Lu, which discussed the TLR system as it relates to hepatitis B viral infections supports this aspect of Dr. Kinsbourne’s proposed theory. Pet. Ex. 35.14 They explained that TLRs are “a group of highly conserved molecules that play a critical role in the recognition of pathogen-associated molecular patterns (PAMPs) and in the activation of innate immune responses to infectious agents.” Id. at 2. TLRs sense pathogen associated molecule patterns and activate antiviral mechanisms, which include “the production of antiviral effectors like interferons [] and proinflammatory cytokines,” in an attempt to control the hepatitis B infection.15 Id. at 1. These proinflammatory cytokines include IL-6, IL-8, and TNF-α. Id. at 2- 3. In addition to being found in patients with hepatitis B viral infections, proinflammatory cytokine levels have been found to be significantly elevated in patients with Bell’s palsy. Pet. Ex. 37.16 In the Yilmaz et al. study, levels of proinflammatory cytokines (IL-6, IL-8, and TNF- α) were significantly higher in patients with Bell’s palsy than in controls. Id. at 1. The authors were not able to determine whether the elevated levels were pathogenic or represented a response to the underlying pathology. Id. However, they postulated that proinflammatory cytokines played a role in generating or perpetuating inflammation. Id. at 3. While Yilmaz et al. do not discuss vaccines, they do suggest an inflammatory mechanism. They question, for example, 13 The authors explained that while the cause of Bell’s palsy is not known, there are two infectious pathogens for which the evidence of causation is “quite sound.” Pet. Ex. 19 at 3. “These include Borrelia burgdorferi in Lyme disease and [herpes] zoster in Ramsay-Hunt syndrome.” Id. 14 Ejuan Zhang & Mengji Lu, Toll-Like Receptor (TLR)-Mediated Innate Immune Responses in the Control of Hepatitis B Virus (HBV) Infection, 204 Med. Microbiology Immunology 11 (2015). 15 “Binding of TLR agonist to their receptors initiates the activation of complex networks of intracellular signal transduction pathways to coordinate the inflammatory response.” Pet. Ex. 35 at 2. 16 Mustafa Yilmaz et al., Serum Cytokine Levels in Bell’s Palsy, 197 J. Neurological Sci. 69 (2002). 7 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 8 of 23 whether an inflammatory mechanism may be caused by the herpes simplex virus (“HSV”). Id. at 1. And significantly, they observed that in Bell’s palsy, “there is an inflammatory reaction compressing the facial nerve in the fallopian canal.” Id. at 3. The Yilmaz et al. authors further stated that it is “likely that there is demyelination in Bell’s palsy.”17 Id. “Since there is demyelination . . . the significantly elevated concentrations of [the cytokine] TNF-α in serum indicate an inflammatory component of the virus-induced demyelination.” Id. The third tenet of petitioner’s theory is based on the anatomy of the area through which the facial nerve travels as it innervates the muscles of the face. The relevance of the anatomy is discussed by Jain and Kumar, cited by Dr. Kinsbourne in support of his inflammatory mechanism. See Pet. Ex. 20.18 The facial nerve travels through the fallopian canal, which provides a bony covering. Id. at 2. While the bony canal protects the nerve, it can also make the nerve “vulnerable to palsy due to entrapment neuropathy.” Id. Like Yilmaz et al., Jain and Kumar suggest that the probable mechanism of Bell’s palsy is compression of the facial nerve “secondary to any type of inflammatory edema.” Id. at 3. “Initially, inflammation causes only a temporary loss of sensory or motor function, but it may result in permanent nerve degeneration due to compression in the fallopian canal.” Id.19 In addition to citing papers that discuss the TLR system and proinflammatory cytokines as it relates to his proposed theory of inflammation, as well as articles that explain the relevant anatomical considerations, Dr. Kinsbourne also cited papers showing that Bell’s palsy has been reported as an adverse reaction following vaccination. In Zhou et al.,20 the Centers for Disease Control and Prevention (“CDC”) reviewed reports from the Vaccine Adverse Event Reporting System (“VAERS”) to evaluate the risk of Bell’s palsy following the administration of flu vaccines given by the parenteral route (injection) from 1991 to 2001. Pet. Ex. 44 at 1. They found 197 reports of Bell’s palsy. Id. Of these, 145 received a flu vaccine not given in combination with other vaccines, while the balance also received other vaccines. Id. at 3. The authors concluded that the “study provided multiple lines of evidence for a signal that Bell’s palsy may be associated with the [flu] vaccine[].” Id. at 4. 17 Demyelination is the destruction, removal, or loss of the myelin sheath of a nerve or nerves. Dorland’s Illustrated Medical Dictionary 493 (33d ed. 2020). 18 Shraddha Jain & Sunil Kumar, Bell’s Palsy: A Need for Paradigm Shift?, 1 Annals Otology & Neurotology 1 (2018). 19 Jain and Kumar state, “[a]mong all cranial nerves, [the] facial nerve is the only nerve that travels in a bony canal. Nerve dysfunction may result more easily as the facial nerve swells within the confines of the noncompliant bony facial canal. Endoneural pressure then increases, and neural vasculature is compressed, leading to ischemia . . . and axonal degeneration.” Pet. Ex. 20 at 6. 20 Weigong Zhou et al., A Potential Signal of Bell’s Palsy After Parenteral Inactivated Influenza Vaccines: Reports to the Vaccine Adverse Event Reporting System (VAERS)-United States 1991-2001, 13 Pharmacoepidemiological Drug Safety 505 (2004). 8 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 9 of 23 Mutsch et al. reported 46 cases of Bell’s palsy associated with the intranasal flu vaccine after it was introduced in Switzerland in 2000. Pet. Ex. 21 at 1.21 The risk of Bell’s palsy after intranasal vaccination was 19 times higher than the risk seen in control subjects. Id. at 2. There were also reports of Bell’s palsy in those who received the vaccine parenterally (by injection).22 In conclusion, the authors reported there was “strong evidence that an inactivated intranasal [flu] vaccine caused Bell’s palsy,” resulting in the Swiss government discontinuing use of the vaccine. Pet. Ex. 16 at 4 (citing Pet. Ex. 21 at 1). Although the authors concluded there was “strong evidence” of vaccine causation with respect to the intranasal flu vaccination, they did not reach any conclusions as to the causal mechanism. Pet. Ex. 21 at 9. Due to concerns raised by the Zhou et al. and Mutsch et al. studies, a study of the incidence of Bell’s palsy following flu parenteral vaccination was undertaken by Stowe et al. in the United Kingdom using the General Practice Research Database for the period of 1992 through 2005. Pet. Ex. 23 at 1.23 The study did not find evidence of an increased risk, except for an increase on the day of vaccination. Id. The authors stated that the increase was “unlikely to represent a causation association on the grounds of biological plausibility.” Id. at 3. They interpreted the increase as an “opportunistic recording of cases at the time of vaccination.” Id. Specific to the hepatitis B vaccine, Dr. Kinsbourne cited an article by Shaw et al., which reported 10 cases of Bell’s palsy following hepatitis B vaccination. Pet. Ex. 16 at 4 (citing Pet. Ex. 40 at 1).24 Shaw et al. reported on neurological adverse events that occurred between 1982 and 1985 related to the “new plasma-derived hepatitis B vaccine.” Pet. Ex. 40 at 1. During that time frame, 41 neurologically adverse events were reported, including 10 cases of Bell’s palsy. Id. “[N]o conclusive epidemiologic association could be made between any neurologic adverse event and the vaccine.” Id. 21 Margot Mutsch et al., Use of the Inactivated Intranasal Influenza Vaccine and the Risk of Bell’s Palsy in Switzerland, 350 N. Eng. J. Med. 896 (2004). 22 The authors state that “27 of the 182 patients with Bell’s palsy (14.8%) . . . had been immunized with [the] parenteral [flu] vaccine.” Pet. Ex. 21 at 6. With regard to this data, the authors stated that “there was essentially no risk of Bell’s palsy after receipt of the traditional, parenteral vaccine.” Id. These findings were commented on in the Stowe et al. paper as follows: “Although [the Mutsch et al.] study showed no association very few patients had received the parenteral vaccine and the study design had a number of limitations and biases that may have led to missing a true association.” Pet. Ex. 23 at 1. 23 Julia Stowe et al., Bell’s Palsy and Parenteral Inactivated Influenza Vaccine, 2 Hum. Vaccines 110 (2006). 24 Frederic E. Shaw et al., Postmarketing Surveillance for Neurologic Adverse Events Reported After Hepatitis B Vaccination: Experience of the First Three Years, 127 Am. J. Epidemiology 337 (1988). 9 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 10 of 23 Dr. Kinsbourne also referenced the hepatitis B vaccine package insert for the vaccine administered to petitioner, ENGERIX-B. See Pet. Ex. 41. Section 6.2, entitled “Postmarketing Experience,” stated, “[t]he following adverse reactions have been identified during post-approval use of ENGERIX-B. Because these reactions are reported voluntarily from a population of uncertain size, it is not always possible to reliably estimate their frequency or establish a causal relationship to the vaccine.” Id. at 8. Following the above statement, under the subsection for nervous system disorders, “Guillain-Barre syndrome and Bell’s palsy” are listed as adverse reactions. Id. Lastly, Dr. Kinsbourne cited a report by Alp et al., describing a case of Bell’s palsy following hepatitis B vaccination in a two-year-old child. Pet. Ex. 17 at 1.25 The child had no upper respiratory tract infection, her MRI of the brain was normal, and testing for viral causes was negative. Id. at 1. No alternative cause was suggested based on the diagnostic workup. Id. “The sole cause suspected was the vaccination against hepatitis B six days before diagnosis of the disease.” Id. at 2. ii. Althen Prong Two: Logical Sequence of Events It is Dr. Kinsbourne’s opinion that petitioner’s hepatitis B vaccine caused his Bell’s palsy, and that his residual deficits and psychological problems are sequelae of his injury. Pet. Ex. 16 at 6. Dr. Kinsbourne opined that the first manifestation of petitioner’s Bell’s palsy was the left-sided postauricular headache that he experienced the day after vaccination. Pet. Ex. 16 at 4. The following day, petitioner had “facial muscle weakness.” Id. While petitioner’s palsy resolved, Dr. Kinsbourne explained that the long-term sequalae included abnormal movements of the left side of his face (“synkinesis”) and left eyelid closure with voluntary contraction of the left-sided facial muscles. Id. Synkinesis “is attributed to aberrant reinnervation of the facial muscles during recovery” from Bell’s palsy. Id. Petitioner had a diagnostic workup to determine the cause of his condition, but no other causes were revealed. Pet. Ex. 16 at 1-2. Potential alternative causes such as viral infections (HSV and human herpes virus-6) were not found. Id. There was no evidence of any alternative cause set forth in the medical records. Id. at 6. Further, Dr. Kinsbourne noted that petitioner’s treating neurologist, Dr. Mukardamwala, prescribed prednisone, which suggested that he presumed the cause was immune in nature.26 Pet. Ex. 28 at 1. 25 Handan et al., Bell’s Palsy as a Possible Complication of Hepatitis B Vaccination in a Child, 27 J. Health Population & Nutrition 707 (2009). 26 Dr. Kinsbourne also stated that Dr. Mukardamwala did not prescribe an antiviral agent, which Dr. Kinsbourne indicated to mean that Dr. Mukardamwala did not believe the petitioner’s Bell’s palsy was caused by a viral infection. Pet. Ex. 28 at 1. However, Dr. Kinsbourne’s understanding was erroneous. The medical records show that Dr. Mukardamwala did prescribe Valtrex, an antiviral medication, for seven days, but stopped it after day five due to fatigue. Pet. Ex. 3 at 2-3. 10 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 11 of 23 In his affidavit, petitioner described the psychological distress that he has experienced due to his Bell’s palsy. See Pet. Ex. 15. Dr. Kinsbourne stated that the medical literature is replete with articles about “the psychological impact of facial palsies.” Pet. Ex. 16 at 5. He cited Baugh et al., who noted that “patients with facial paralysis experience psychosocial dysfunction and diminished quality of life as a result of their appearance.” Id. at 6 (citing Pet. Ex. 43 at 21).27 Fu et al. stated that even when the paralysis resolves, “social and psychological problems will remain.” Id. (citing Pet. Ex. 18 at 5).28 iii. Althen Prong Three: Proximate Temporal Relationship Dr. Kinsbourne opined that the first indication of petitioner’s Bell’s palsy was “the left postauricular headache that began one day after the vaccination.” Pet. Ex. 16 at 4. Dr. Kinsbourne explained that this type of headache often heralds the onset of the condition, and that it can occur before, during, or after the facial muscles exhibit weakness. Id. The brief interval between vaccination and onset implicates the innate immune system, which Dr. Kinsbourne asserted is activated “almost immediately after an immune challenge by an infection or vaccination.” Pet. Ex. 16 at 5. Dr. Kinsbourne’s assertion is supported by an article authored by Talaat et al., which reported rapid responses of cytokines following the inactivated flu vaccination. Resp. Ex. D-2 at 1.29 Cytokine responses are evident as early as three hours post-vaccination, and peak at 24 hours. Id. While the hepatitis B vaccine was not studied, the data indicated that peripheral cytokines begin to change in the hours immediately following vaccination. Id. Similar findings were reported by Valdez et al. after the pneumococcal polysaccharide vaccine. See Pet. Ex. 30.30 2. Petitioner – Dr. Vera S. Byers a. Background and Qualifications Dr. Byers works for a consulting company, Immunology Inc. Pet. Ex. 29 at 1. At Immunology Inc. she designs, supervises, and runs epidemiologic studies on populations exposed to carcinogenic environmental chemicals. Id. She is the principal medical witness in 27 D.F. Baugh et al., Clinical Practice Guideline: Bell’s Palsy, 149 Otolaryngology–Head & Neck Surgery S1 (2013). 28 L. Fu et al., Psychological Distress in People with Disfigurement from Facial Palsy, 25 Eye 1322 (2011). 29 Kawsar R. Talaat et al., Rapid Changes in Serum Cytokines and Chemokines in Response to Inactivated Influenza Vaccination, 12 Influenza & Other Respiratory Viruses 202 (2018). 30 Hernan Valdez et al., Levels of Proinflammatory Cytokines in Plasma After Pneumococcal Immunization in Human Immunodeficiency Virus Type 1-Infected Patients, 6 Clinical & Diagnostic Lab’y Immunology 427 (1999). 11 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 12 of 23 over 30 cases, involving over 3000 plaintiffs. Pet. Ex. 42 at 1-2. She is board-certified in Internal Medicine and has a Ph.D. in basic immunology awarded in 1969 from the University of California Los Angeles. Pet. Ex. 29 at 1. Dr. Byers received her M.D. from University California San Francisco (“UCSF”) followed by a three-year residency in clinical immunology at UCSF. Id. She was an Adjunct Professor of Immunodermatology at UCSF from 1974 to 2008. Id. Dr. Byers has authored or co-authored over 100 journal articles regarding immunology and cancer research. Pet. Ex. 42 at 6-19. b. Opinion Dr. Byers agreed with Dr. Kinsbourne that petitioner had an immune-mediated Bell’s palsy. Pet. Ex. 29 at 1. She opined that the hepatitis B vaccination that petitioner received was “the cause or a substantial contributor to his Bell’s palsy.” Id. Dr. Byers explained that “the understanding of the role of the innate immune system in various infectious diseases is relatively new. [TLRs] are now recognized as the first line of anti- viral immunity.” Pet. Ex. 29 at 2. Thus, she, like Dr. Kinsbourne, posited an innate immune system theory involving the TLR system and the production of proinflammatory cytokines. Citing a paper by Zhang and Lu, Dr. Byers summarized the role of TLR responses to hepatitis B viral infection. Pet. Ex. 29 at 2 (citing Pet. Ex. 35). The authors stated that while the “contribution of innate immune responses to viral control is recognized,” it is “not fully understood.” Pet. Ex. 35 at 1. In the context of the innate immune response to infections, and specifically infection induced by hepatitis B, Zhang and Lu described how “TLRs initiate intracellular signaling pathways to induce interferons and a cascade of pro-inflammatory cytokines.” Pet. Ex. 29 at 2. The authors stated that experimental data indicate that the hepatitis B virus interacts with live cells and “induces the production of IL-6,” and within 3 hours proinflammatory cytokines (IL-1, IL-6, IL-8, and TNF-α) are released. Pet. Ex. 35 at 3. Dr. Byers extended the discussion to show that like the hepatitis viral infection, the recombinant hepatitis B vaccine also evokes cytokine responses. Pet. Ex. 29 at 2. In support of this aspect of her opinion, she cited several studies, including those by Dammermann et al., Campbell, and Chen et al. Collectively, these studies discuss TLRs in different contexts. Dammermann et al. studied the “sensitivity and specificity of a hepatitis cytokine release assay.” Pet. Ex. 38 at 1.31 Campbell discussed clinical testing of surface antigen adjuvant 1018 (a TLR agonist used in a B vaccine HEPLISAV-B). Pet. Ex. 36 at 2.32 And Chen et al. discussed the genes of TLRs and their “involvement in antigen recognition and immune response activation.” 31 Werner Dammermann et al., CpG Oligonucleotides Increase HBV-Specific Cytokine Responses in Whole Blood and Enhance Cytokine Release Assay Sensitivity, 248 J. Virological Methods 195 (2017). 32 John D. Campbell, Development of the CpG Adjuvant 1018: A Case Study, in Vaccine Adjuvants: Methods and Protocols, Methods in Molecular Biology 15 (Christopher B. Fox ed., 2017). 12 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 13 of 23 Pet. Ex. 31 at 2.33 Collectively, these articles appear to bolster Dr. Byers’s statement that TLRs play a role in the induction of proinflammatory cytokines, in the interplay between the innate and adaptive immune systems, and “influence the efficacy of hepatitis B vaccination.” Id. Like Dr. Kinsbourne, Dr. Byers also cited a study showing that patients with Bell’s palsy have elevated proinflammatory cytokines, including IL-6, IL-8, and TNF-α. Pet. Ex. 29 at 2 (citing Pet. Ex. 37). She also cited studies to establish that vaccines cause an increase in these proinflammatory cytokines. Id. Valdez et al., for example, “reported a 2 fold increase in IL-6 after the pneumococcal polysaccharide vaccination.” Id. at 1 (citing Pet. Ex. 30 at 1). And Talaat et al. reported an elevation of cytokines within seven hours of administration of the flu vaccination. Id. at 3 (see Resp. Ex. D-2 at 1). Dr. Byers also cited a case of Bell’s palsy after hepatitis B vaccination in a 26-year-old, reported by Paul and Stassen. Pet. Ex. 29 at 2 (citing Pet. Ex. 34).34 Onset occurred six hours after vaccination. Pet. Ex. 34 at 1. The vaccinee had no signs or symptoms of infection, and no alternative cause was suggested. Id. She received her vaccine in her left deltoid, and she had no local tenderness or infection at the vaccination site. Id. MRI of the brain did not reveal any abnormalities. Id. Paul and Stassen stated that “although the [hepatitis B] vaccine is among the safest of all vaccines, it has been associated with adverse effects.” Id. at 2. The authors concluded that the most probable cause of her Bell’s palsy was the hepatitis B vaccine. Id. at 3. 3. Respondent – Dr. Subramaniam Sriram a. Background and Qualifications Dr. Sriram is board-certified in Internal Medicine and Neurology. Resp. Ex. A at 1. He is Professor of Neurology and Microbiology Immunology and head of the Multiple Sclerosis (“MS”) Clinic at Vanderbilt Medical Center, where he takes care of over 1000 patients with MS. Id. He obtained a Bachelor of Medicine and a Bachelor of Surgery from the University of Madras in Madras, India. Resp. Ex. B at 1. He then served as an intern and resident at Wayne State University and completed a residency in neurology at Stanford University, where he also served as chief resident and eventually completed a post-doctoral fellowship in neuroimmunology. Id. Dr. Sriram has published numerous peer-reviewed medical articles regarding demyelinating diseases of the central nervous system. Id. at 9-19. b. Opinion 33 Jie Chen et al., Toll-Like Receptors and Cytokines/Cytokine Receptors Polymorphisms Associate with Non-response to Hepatitis B Vaccine, 29 Vaccine 706 (2011). 34 R. Paul & L.F.A. Stassen, Transient Facial Nerve Paralysis (Bell’s Palsy) Following Administration of Hepatitis B Recombinant Vaccine: A Case Report, 216 British Dental J. 69 (2014). 13 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 14 of 23 Dr. Sriram agreed with Dr. Kinsbourne and Dr. Byers as to diagnosis. He stated, “[t]here is no question as to the diagnosis of the [petitioner]. He had peripheral cranial nerve VII neuropathy, also known as Bell’s palsy.” Resp. Ex. A at 3. i. Althen Prong One: Medical Theory of Causation While he agreed with petitioner’s diagnosis of Bell’s palsy, Dr. Sriram disagreed that there is evidence that the hepatitis B vaccine “relates to the development” of the illness. Resp. Ex. A at 4. Specifically, he disagreed with Dr. Kinsbourne’s proposed mechanism of innate immune system activation by TLRs. Id. at 5. He opined that there “are no reports that the hepatitis B virus recombinant protein can and/or does act like a [TLR] agonist and does so within 24 hours.” Id. Further, he stated that there is “no evidence that cytokines released by [TLR] activation pathway can specifically target the seventh cranial nerve (and avoid all of the nerves) and cause inflammatory demyelination.” Id. Dr. Sriram contended that Dr. Kinsbourne confused “activation of the immune pathway by live and inactivated viruses and that of a cell surface protein belonging to a virus.” Resp. Ex. C at 2. He further asserted that there is no “evidence to support the notion that Hepatitis B surface protein activates the TLR pathway” or that “[t]he resultant autoimmune response to hepatitis cell surface protein targets an as yet undefined self-antigen in peripheral cranial [nerve].”35 Id. Dr. Sriram contended that “[t]he prevailing opinion is that a direct infection [of the] nerve is [the] most likely cause” of Bell’s palsy, although he noted that there is a dispute about whether the illness is caused by a single virus or a number of different viruses. Resp. Ex. A at 4. Some cases are attributed to “ischemic mononeuropathy of other cranial nerves in patients with diabetes.” Id. at 3. In most cases of Bell’s palsy, Dr. Sriram stated the cause is not known, and thus referred to as idiopathic. Id. In cases where the cause is unknown, Dr. Sriram believed the most likely case is HSV type 1 (“HSV-1”), noting “the current consensus opinion on Bell’s palsy is that it is a viral infection of the seventh cranial nerve most likely due to the HSV-1 virus that is reactivated.”36 Id. at 4. “The disease probably reflects virus reactivation from latency in the geniculate ganglia, rather than primary infection.” Id. In reference to the Mutsch et al. article cited by petitioner regarding the incidence of Bell’s palsy following the intranasal flu vaccine, Dr. Sriram disagreed that the findings are applicable to vaccines given by injection (parenteral as opposed to nasally). Resp. Ex. C at 1. He further disagreed that findings relative to the flu vaccine provide evidence of causation for the hepatitis B vaccine. Id. 35 Dr. Sriram also stated that Dr. Kinsbourne failed to provide evidence that the hepatitis B vaccine (surface protein) “targets [a] . . . self-antigen in peripheral cranial [nerve].” Resp. Ex. C at 2. This comment appears to implicate molecular mimicry, which Dr. Kinsbourne does not believe is applicable in this case due to the short onset. Pet. Ex. 16 at 5. 36 Dr. Sriram also stated that the “prevailing opinion is that a direct infection” is the cause of Bell’s palsy. Resp. Ex. A at 4. 14 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 15 of 23 ii. Althen Prong Two: Logical Sequence of Events Dr. Sriram did not opine as to any alternative causes of petitioner’s Bell’s palsy. Although he opined that Bell’s palsy is thought to be caused by direct infection or reactivation, he did not suggest that petitioner had a primary infection, or that his Bell’s palsy was caused by reactivation of a virus. Resp. Ex. C at 2. iii. Althen Prong Three: Proximate Temporal Relationship Dr. Sriram agreed with Dr. Kinsbourne that petitioner’s symptoms occurred within 24 hours of vaccination. Resp. Ex. A at 3. However, he disagreed that the hepatitis B vaccine can cause inflammatory demyelination of the seventh cranial nerve through the mechanism posited by petitioner’s experts within 24 hours. Id. at 5; Resp. Ex. C at 2. 4. Respondent – Dr. Harry W. Schroeder, Jr. a. Background and Qualifications Dr. Schroeder is a Professor of Medicine, Microbiology, and Genetics at the School of Medicine at the University of Alabama at Birmingham. Resp. Ex. D at 1. Dr. Schroeder is board-certified in both internal medicine and genetics. Id. He received his bachelor’s degree from Texas A&M University, before receiving both his medical degree and Ph.D. from Baylor College of Medicine. Resp. Ex. E at 1. Dr. Schroeder then completed his internship and residency at the University of Kentucky Medical Center. Id. at 2. Since 2001, he has been an editor of the textbook Clinical Immunology: Principles and Practices, which is now in the process of publishing its 6th edition. Resp. Ex. D at 1. b. Opinion Consistent with the other experts, Dr. Schroeder agreed with petitioner’s diagnosis of Bell’s palsy. Resp. Ex. D at 5. He emphasized that Bell’s palsy is an idiopathic condition because the cause is not certain. Id. The condition occurs in 15 to 30 per 100,000 persons, and the peak incidence is seen in those ages 15 to 45 years of age. Id. at 6. Dr. Schroeder further explained that the underlying mechanism of the illness remains unknown, but he agreed there may be immune causes. Id. i. Althen Prong One: Medical Theory of Causation Unlike Dr. Sriram, Dr. Schroeder agreed with petitioner’s experts “that activation of TLR and other components of the innate immune system typically occurs during vaccination.” Resp. Ex. D at 9. He also agreed with Dr. Byers’ summary of the “role of TLRs in initiating inflammation, evoking cytokine responses, and playing a role in the adjuvant pathways that are activated by the hepatitis vaccine.” Id. at 10. Dr. Schroeder noted that instead of invoking a “specific autoimmune reaction due to molecular mimicry, Dr. Byers raises the specter of cytokine activation leading to neurologic damage.” Id. at 13. 15 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 16 of 23 The causal mechanism proposed by petitioner, is described by Dr. Schroeder as follows: Reactogenicity[37] refers to a subset of reactions that occur soon after vaccination, and are a physical manifestation of the inflammatory response to vaccination, which includes cytokine release after activation of [TLR]. As noted by Drs. Kinsbourne and Byers, activation of TLR leads to the synthesis and release of pyrogenic cytokines such as IL-1, IL-6, and TNF-α in the bloodstream, and thus mimics the response to natural infection. Activation of the innate immune system promotes the release of additional inflammatory mediators including chemokines and cytokines, activation of complement, and cellular recruitment. These phenomena are crucial for triggering the adaptive immune system, and can have both local and systemic effects. Local effects include pain, redness[,] and swelling at the site of injection. The mediators and products of inflammation released into the circulation can also cause general systemic side effects such as fever, fatigue, and headache. Resp. Ex. D at 13. According to Dr. Schroeder, “the search for a mechanism [for Bell’s palsy] has been the subject of research for decades, with the underlying cause still remaining unclear despite several proposed theories.” Resp. Ex. D at 6. The proposed theories include, 1) “cell-mediated autoimmune mechanism against myelin basic protein;” 2) “autoimmune demyelinating cranial neuritis . . . (mononeuritis variant of Guillain-Barre Syndrome);” and 3) “autoimmune reaction against peripheral nerve myelin components [are] a result of viral infection or the reactivation of a latent virus.” Resp. Ex. D at 6. He stated that treatment with prednisone is effective, as it may “reduce inflammation and edema, or [] help immunosuppress an autoimmune reaction.” Resp. Ex. D at 6. Dr. Schroeder acknowledged the studies cited by petitioner that reported the incidence of Bell’s palsy following flu vaccination (Zhou and Stowe et al.), noting that in Stowe et al., the authors attributed the increased incidence on the day of vaccine administration as an “opportunistic recording of cases.” Resp. Ex. D at 7 (citing Pet. Ex. 23 at 1). Dr. Schroeder also acknowledged the medical literature relevant to the hepatitis B vaccination, cited by Dr. Kinsbourne. Resp. Ex. D at 8. Dr. Schroeder noted that Khamaisi et al. reported that hepatitis B vaccination was associated with Guillain-Barre syndrome (“GBS”). Id.38 He also cited the case of Bell’s palsy following the hepatitis B vaccination reported by Alp et al. Id. (citing Pet. Ex. 17). But he disagreed that the Shaw et al. paper provided any support, 37 In referencing the concept of reactogenicity, Dr. Schroeder cited the text by Hervé et al. See Resp. Ex. D at 15 (Caroline Hervé et al., The How’s and What’s of Vaccine Reactogenicity, 39 NPJ Vaccines 1 (2019)). 38 Khamaisi et al. was not filed into the record. 16 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 17 of 23 and inferred that the incidence of Bell’s palsy following vaccination did not exceed the expected baseline numbers. Id. (citing Pet. Ex. 40 at 1). Dr. Schroeder recognized the fact that the hepatitis B vaccine manufacture’s package insert identified an association between the hepatitis B vaccine and Bell’s palsy, but he noted that “the basis of this association was not given.” Resp. Ex. D at 8. While Dr. Schroeder agreed with and acknowledged many of Dr. Kinsbourne’s statements and opinions, he seemed critical of the fact that Dr. Kinsbourne rejected the adaptive immune system mechanism of molecular mimicry, a mechanism that has been suggested for both GBS and Bell’s palsy. Resp. Ex. D at 8. Dr. Schroeder stated, “Dr. Kinsbourne thus demolished the proposed link between vaccine administration and an autoimmune activation of the adaptive immune system as the mechanism underlying the onset of Bell’s palsy in the petitioner . . . and then turned to that portion of the immune system that is activated within hours of challenge, the innate immune system.” Id. Dr. Schroeder called this a “speculative [] hypothesis,” not based on experimental studies or epidemiology. Id. With regard to the literature cited by Dr. Byers, Dr. Schroeder agreed that the Valdez et al. and Talaat et al. studies reported an increase in proinflammatory cytokines following the administration of the pneumococcal polysaccharide and flu vaccines. Resp. Ex. D at 11-12. However, he noted that neither article referenced the hepatitis B vaccine. Id. Dr. Schroeder did not consider the findings by Yilmaz et al. to be “conclusive evidence,” since they could not distinguish whether the elevated cytokines played a role in the pathogenesis of the disease. Resp. Ex. D at 10. As for the case report by Paul and Strassen, Dr. Schroeder argued that “association does not prove causation.” Id. at 11. He concluded his comments about the literature by stating that the epidemiology does not support an association between the hepatitis B vaccine and Bell’s palsy, “much less causation.” Id. at 12. Generally, Dr. Schroeder opined that the papers cited by Dr. Byers “include[ed] multiple cautionary statements by the authors,” and none of them offered support for how “a local inflammatory event” can occur due to a “generalized elevation of cytokines.” Id. at 14. ii. Althen Prong Two: Logical Sequence of Events According to Dr. Schroeder, after vaccination, petitioner developed “local signs and symptoms of inflammation at the [vaccine] injection site.” Resp. Ex. D at 13. Petitioner also had “mild systemic effects including malaise, soreness[,] and mild headache.” Id. Dr. Schroeder opined that these symptoms were consistent with “the effect of local activation of the innate immune system . . . includ[ing] activation of [TLR] . . . which can be attributed to the release of cytokines and other mediators.” Id. However, Dr. Schroeder contended that petitioner’s systemic reaction “resolved within 24 hours of [] vaccination, which is common.” Id. He did not believe that any of the symptoms petitioner experienced after that, including the periauricular headache, were vaccine-related. Id. Dr. Schroeder opined that the “activation of the innate system as the cause of this local, unilateral event at a distance from the site of injection is interesting speculation.” Id. Dr. Schroeder opined that the “only association between these two 17 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 18 of 23 events [vaccination and Bell’s palsy] appears to be a temporal coincidence and thus most likely due to chance alone.” Id. at 15. Dr. Schroeder did not opine as to any alternative causes of petitioner’s Bell’s palsy. He stated that “the lack of an alternative causation in [petitioner’s] case could be considered to be ‘par for the course,’ i.e., another reflection of the fact that at present we do not know with certainty what the pathogenetic cause of Bell’s palsy might be and thus we placed it in the idiopathic (i.e., we don’t know) category.” Resp. Ex. D at 10. iii. Althen Prong Three: Proximate Temporal Relationship Dr. Schroeder agreed with Dr. Kinsbourne that petitioner’s symptoms occurred within 24 hours of vaccination. Resp. Ex. D at 10. Likewise, Dr. Schroeder agreed that there was a temporal association between petitioner’s vaccination and his Bell’s palsy. Id. However, he did not believe there was any evidence that the hepatitis B vaccine can cause inflammatory demyelination of the seventh cranial nerve through the mechanism posited by petitioner’s experts within 24 hours. Id. at 14. He asserted that activation of the TLR system triggers “activation of the adaptive immune system involving cell mediated immunity (T cells) and humoral immunity (B cells and their antibody products) . . . which is attributed to molecular mimicry and takes days, not hours, to develop.” Id. at 9. Thus, Dr. Schroeder concluded the timeframe of onset here is too short. Id. at 14. He attributed the temporal association between vaccination and onset of petitioner’s Bell’s palsy to “chance alone.” Id. at 15. VI. DISCUSSION A. Standards for Adjudication – Causation The Vaccine Act was established to compensate vaccine-related injuries and deaths. § 10(a). “Congress designed the Vaccine Program to supplement the state law civil tort system as a simple, fair and expeditious means for compensating vaccine-related injured persons. The Program was established to award ‘vaccine-injured persons quickly, easily, and with certainty and generosity.’” Rooks v. Sec’y of Health & Hum. Servs., 35 Fed. Cl. 1, 7 (1996) (quoting H.R. Rep. No. 908 at 3, reprinted in 1986 U.S.C.C.A.N. at 6287, 6344). Petitioner’s burden of proof is by a preponderance of the evidence. § 13(a)(1). The preponderance standard requires a petitioner to demonstrate that it is more likely than not that the vaccine at issue caused the injury. Moberly v. Sec’y of Health & Hum. Servs., 592 F.3d 1315, 1322 n.2 (Fed. Cir. 2010). Proof of medical certainty is not required. Bunting v. Sec’y of Health & Hum. Servs., 931 F.2d 867, 873 (Fed. Cir. 1991). The petitioner need not make a specific type of evidentiary showing, i.e., “epidemiologic studies, rechallenge, the presence of pathological markers or genetic predisposition, or general acceptance in the scientific or medical communities to establish a logical sequence of cause and effect.” Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1325 (Fed. Cir. 2006). Instead, petitioner may satisfy his burden by presenting circumstantial evidence and reliable medical opinions. Id. at 1325-26. 18 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 19 of 23 In particular, petitioner must prove that the vaccine was “not only [the] but-for cause of the injury but also a substantial factor in bringing about the injury.” Moberly, 592 F.3d at 1321 (quoting Shyface v. Sec’y of Health & Hum. Servs., 165 F.3d 1344, 1352-53 (Fed. Cir. 1999)); see also Pafford v. Sec’y of Health & Hum. Servs., 451 F.3d 1352, 1355 (Fed. Cir. 2006). The received vaccine, however, need not be the predominant cause of the injury. Shyface, 165 F.3d at 1351. A petitioner who satisfies this burden is entitled to compensation unless respondent can prove, by a preponderance of the evidence, that the vaccinee’s injury is “due to factors unrelated to the administration of the vaccine.” § 13(a)(1)(B). To receive compensation through the Program, petitioner must prove either (1) that he suffered a “Table Injury”—i.e., an injury listed on the Vaccine Injury Table—corresponding to a vaccine that he received, or (2) that he suffered an injury that was actually caused by a vaccination. See §§ 13(a)(1)(A), 11(c)(1); Capizzano, 440 F.3d at 1319-20. Because petitioner’s claim is not a Table claim, he must prove his claim by showing that his injury was caused-in-fact by the vaccination in question. § 11(c)(1)(C)(ii). To do so, petitioner must establish, 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, 418 F.3d at 1278. The causation theory must relate to the injury alleged. The petitioner must provide a sound and reliable medical or scientific explanation that pertains specifically to this case, although the explanation need only be “legally probable, not medically or scientifically certain.” Knudsen v. Sec’y of Health & Hum. Servs., 35 F.3d 543, 548-49 (Fed. Cir. 1994). Petitioner cannot establish entitlement to compensation based solely on his assertions; rather, a vaccine claim must be supported either by medical records or by the opinion of a medical doctor. § 13(a)(1). In determining whether petitioner is entitled to compensation, the special master shall consider all material in the record, including “any . . . conclusion, [or] medical judgment . . . which is contained in the record regarding . . . causation.” § 13(b)(1)(A). The undersigned must weigh the submitted evidence and the testimony of the parties’ proffered experts and rule in petitioner’s favor when the evidence weighs in his favor. See Moberly, 592 F.3d at 1325-26 (“Finders of fact are entitled—indeed, expected—to make determinations as to the reliability of the evidence presented to them and, if appropriate, as to the credibility of the persons presenting that evidence.”); Althen, 418 F.3d at 1280 (noting that “close calls” are resolved in petitioner’s favor). B. Causation Analysis 1. Althen Prong One: Medical Theory of Causation Under Althen Prong One, petitioner must set forth a medical theory explaining how the received vaccine could have caused the sustained injury. Andreu v. Sec’y of Health & Hum. Servs., 569 F.3d 1367, 1375 (Fed. Cir. 2009); Pafford, 451 F.3d at 1355-56. Petitioner’s theory of causation need not be medically or scientifically certain, but it must be informed by a “sound and reliable” medical or scientific explanation. Boatmon v. Sec’y of Health & Hum. Servs., 941 F.3d 1351, 1359 (Fed. Cir. 2019); see also Knudsen, 35 F.3d at 548; Veryzer v. Sec’y of Health 19 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 20 of 23 & Hum. Servs., 98 Fed. Cl. 214, 223 (2011) (noting that special masters are bound by both § 13(b)(1) and Vaccine Rule 8(b)(1) to consider only evidence that is both “relevant” and “reliable”). If petitioner relies upon a medical opinion to support his theory, the basis for the opinion and the reliability of that basis must be considered in the determination of how much weight to afford the offered opinion. See Broekelschen v. Sec’y of Health & Hum. Servs., 618 F.3d 1339, 1347 (Fed. Cir. 2010) (“The special master’s decision often times is based on the credibility of the experts and the relative persuasiveness of their competing theories.”); Perreira v. Sec’y of Health & Hum. Servs., 33 F.3d 1375, 1377 n.6 (Fed. Cir. 1994) (stating that an “expert opinion is no better than the soundness of the reasons supporting it” (citing Fehrs v. United States, 620 F.2d 255, 265 (Ct. Cl. 1980))). The undersigned finds that the petitioner has set forth a sound and reliable medical theory to explain how the hepatitis B vaccine can cause Bell’s palsy. This finding is based on the following reasons. First, that the innate immune system’s TLR system plays a role the release of proinflammatory cytokines after vaccination is well-described in the medical literature and acknowledged by petitioner’s experts and respondent’s expert, Dr. Schroeder. Zhang and Lu discuss the TLR system in the context of hepatitis B viral infections. TLRs sense pathogen- associated molecule patterns and activate antiviral mechanisms which include proinflammatory cytokines. Dr. Schroeder describes the process whereby TLRs release proinflammatory cytokines following vaccination, and describes the process as one that “mimics the response to natural infection.” Resp. Ex. D at 13. Thus, the causal theory appears to be well-accepted as an explanation for how the innate immune system responds to viral infections. Second, studies published by Yilmaz et al. and Talaat et al. show that proinflammatory cytokine levels are elevated in patients who have Bell’s palsy. While the authors did not reach any conclusions as to whether the elevated cytokines constitute evidence of pathogenesis, Yilmaz et al. did suggest that an inflammatory demyelinating mechanism may be the cause of Bell’s palsy in the context of viral infections. Third, the relevant anatomy and the vulnerability of the facial nerve as it passes through the bony fallopian canal has been implicated as playing a causal role in the medical literature. Yilmaz et al. observed that Bell’s palsy involves “an inflammatory reaction compressing the facial nerve in the fallopian canal.” Pet. Ex. 37 at 3. Jain and Kumar suggest that the probable mechanism is compression of the facial nerve “secondary to any type of inflammatory edema.” Pet. Ex. 20 at 3. They state that “inflammation . . . may result in permanent nerve degeneration due to compression in the fallopian canal.” Id. Petitioner’s causal theory combines a sound and reliable mechanism of inflammatory demyelination (like that which may occur with infection) with the known anatomical vulnerability of the facial nerve to inflammation in the fallopian canal. Further evidence in support of this theory is provided by histological evidence of inflammation found in the facial nerve of patients with Bell’s palsy. Thus, the basic underpinnings of the causal theory are all well-supported by existing knowledge of immunology, anatomy, and histology. 20 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 21 of 23 Moreover, Bell’s palsy has been identified as a potential adverse reaction to the hepatitis B vaccine by the vaccine manufacturer and there are supportive case reports. The lack of supportive epidemiological evidence is not dispositive. It is difficult to use epidemiology to determine whether a vaccine is implicated in causation. Moreover, “[r]equiring epidemiologic studies . . . or general acceptance in the scientific or medical communities . . . impermissibly raises a claimant’s burden under the Vaccine Act and hinders the system created by Congress, in which close calls regarding causation are resolved in favor of injured claimants.” Andreu, 569 F.3d at 1378 (quoting Capizzano, 440 F.3d at 132-26); see also Althen, 418 F.3d at 1280 (noting that “close calls” are resolved in petitioner’s favor). For these reasons, the undersigned finds that petitioner has provided preponderant evidence of a sound and reliable causal theory, satisfying Althen Prong One. 2. Althen Prong Two: Logical Sequence of Cause and Effect Under Althen Prong Two, petitioner must prove by a preponderance of the evidence that there is a “logical sequence of cause and effect showing that the vaccination was the reason for the injury.” Capizzano, 440 F.3d at 1324 (quoting Althen, 418 F.3d at 1278). “Petitioner must show that the vaccine was the ‘but for’ cause of the harm . . . or in other words, that the vaccine was the ‘reason for the injury.’” Pafford, 451 F.3d at 1356 (internal citations omitted). In evaluating whether this prong is satisfied, the opinions and views of the vaccinee’s treating physicians are entitled to some weight. Andreu, 569 F.3d at 1367; Capizzano, 440 F.3d at 1326 (“[M]edical records and medical opinion testimony are favored in vaccine cases, as treating physicians are likely to be in the best position to determine whether a ‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.’” (quoting Althen, 418 F.3d at 1280)). Medical records are generally viewed as trustworthy evidence, since they are created contemporaneously with the treatment of the vaccinee. Cucuras, 993 F.2d at 1528. The petitioner need not make a specific type of evidentiary showing, i.e., “epidemiologic studies, rechallenge, the presence of pathological markers or genetic predisposition, or general acceptance in the scientific or medical communities to establish a logical sequence of cause and effect.” Capizzano, 440 F.3d at 1325. Instead, petitioner may satisfy his burden by presenting circumstantial evidence and reliable medical opinions. Id. at 1325-26. In regard to Althen Prong Two, the undersigned finds petitioner provided preponderant evidence of a logical sequence of cause and effect showing that his vaccination was the cause of his Bell’s palsy. Although his treating physicians did not provide any opinions that support or negate a finding that petitioner’s vaccine was causal, his medical records show that his clinical course is consistent with the proposed causal mechanism. After vaccination, petitioner developed local signs and symptoms of inflammation at the site of his vaccination. Petitioner had malaise, arm soreness, and mild headache. Dr. Schroeder opined that these symptoms were consistent with “the effect of local activation of the innate immune system . . . includ[ing] activation of [TLRs] . . . which can be attributed to the release of cytokines and other mediators.” Resp. Ex. D at 13. Petitioner then had the onset of his Bell’s 21 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 22 of 23 palsy, the left-sided postauricular headache the day after vaccination. The following day, petitioner had “facial muscle weakness.” Id. These symptoms are consistent with the injury to the facial nerve secondary to inflammatory demyelination due to compression in the fallopian canal. Lastly, there is no evidence of any alternative cause for petitioner’s illness. Petitioner did not have a urinary tract infection, upper respiratory tract infection, herpetic or zoster infection or evidence of reactivation, or evidence of any other cause. Respondent’s experts do not identify any other cause for petitioner’s Bell’s palsy. Thus, the undersigned finds that petitioner provided preponderant evidence of a logical sequence of cause and effect, satisfying Althen Prong Two. 3. Althen Prong Three: Proximate Temporal Relationship Althen Prong Three requires petitioner to establish a “proximate temporal relationship” between the vaccination and the injury alleged. Althen, 418 F.3d at 1281. That term has been equated to mean a “medically acceptable temporal relationship.” Id. The petitioner must offer “preponderant proof that the onset of symptoms occurred within a timeframe which, given the medical understanding of the disease’s etiology, it is medically acceptable to infer causation-in- fact.” de Bazan v. Sec’y of Health & Hum. Servs., 539 F.3d 1347, 1352 (Fed. Cir. 2008). The explanation for what is a medically acceptable time frame must also coincide with the theory of how the relevant vaccine can cause the injury alleged (under Althen Prong One). Id.; Koehn v. Sec’y of Health & Hum. Servs., 773 F.3d 1239, 1243 (Fed. Cir. 2014); Shapiro v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 532, 542 (2011), recons. den’d after remand, 105 Fed. Cl. 353 (2012), aff’d mem., 503 F. App’x 952 (Fed. Cir. 2013). The hepatitis B vaccination was administered to petitioner on October 2, 2014. The experts agree that petitioner’s severe postauricular pain which began on Friday afternoon, October 3, 2014, heralded the onset of petitioner’s Bell’s palsy. Petitioner’s experts agree that the innate immune system is activated almost immediately following vaccination. Both Dr. Kinsbourne and Dr. Byers cited medical literature to support their assertions that cytokine responses begin as early as three to seven hours after vaccination and peak at 24 hours. This timeframe is appropriate given the petitioner’s causal theory of inflammation leading to injury of the facial nerve. Therefore, petitioner has provided preponderant evidence satisfying Althen Prong Three. VII. CONCLUSION Based on the record as a whole, the undersigned finds there is preponderant evidence to satisfy all three Althen prongs and to establish petitioner’s vaccination caused his Bell’s palsy. Thus, the undersigned finds petitioner has established by preponderant evidence that he is entitled to compensation. A separate damages order will issue. IT IS SO ORDERED. 22 Case 1:17-vv-00243-UNJ Document 77 Filed 10/20/21 Page 23 of 23 s/Nora Beth Dorsey Nora Beth Dorsey Special Master 23 ================================================================================ DOCUMENT 2: USCOURTS-cofc-1_17-vv-00243-2 Date issued/filed: 2024-09-05 Pages: 39 Docket text: PUBLIC ORDER/RULING (Originally filed: 06/26/2024) regarding 181 Ruling Regarding Petitioner's Lost Earnings Claim. Signed by Special Master Nora Beth Dorsey. (aevw) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 1 of 39 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: June 26, 2024 Refiled as Redacted: September 5, 2024 * * * * * * * * * * * * * * * * * * * * * * * * * A.B., * PUBLISHED * Petitioner, * No. 17-243V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Ruling on Lost Wage Eligibility; AND HUMAN SERVICES, * Hepatitis B Vaccine; Bell’s Palsy. * Respondent. * * * * * * * * * * * * * * * * * * * * * * * * * * * Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for Respondent. RULING REGARDING PETITIONER’S LOST EARNINGS CLAIM1 I. INTRODUCTION On February 21, 2017, A.B. (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2018).2 Petitioner alleged he suffered from Bell’s palsy as the result of a hepatitis B vaccination he received on October 2, 2014. Petition at 1 (ECF No. 1). On 1 When this Decision was originally filed, the undersigned advised her intent to post it on the United States Court of Federal Claims' website, and/or at https://www.govinfo.gov/app/ collection/uscourts/national/cofc, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2018) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), Petitioner filed a timely motion to redact certain information. This Decision is being reissued with the redaction of Petitioner’s name to initials. Except for those changes and this footnote, no other substantive changes have been made. This Decision will be posted on the court’s website, and/or at https://www.govinfo.gov/app/ collection/uscourts/national/cofc, with no further opportunity to move for redaction. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Ruling to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 2 of 39 September 20, 2021, the undersigned issued a Ruling on Entitlement, finding Petitioner entitled to compensation. Ruling on Entitlement dated Sept. 20, 2021 (ECF No. 75). Since that ruling, the parties have been in the damages phase of litigation, and have been unable to resolve the appropriate amount of compensation because they disagree about whether Petitioner is entitled to recover for a loss of earnings. The parties have submitted the issue to the undersigned for adjudication. After a review of all the evidence, the undersigned finds that Petitioner has proved by preponderant evidence that he is entitled to an award for loss of earnings from October 6, 2014 to October 17, 2014. Petitioner has not proved by preponderant evidence that he is entitled to an award of lost wages after October 17, 2014. II. PROCEDURAL HISTORY The procedural history from the filing of the petition through the Ruling on Entitlement is set forth in that ruling and will not be repeated here. See Ruling on Entitlement at 2. Since the Ruling on Entitlement, the parties have engaged in damages discussions and Petitioner has filed additional records. See Pet. Ex. 45-68. During this time, Petitioner filed four motions to retain a damages expert to support his lost wages claim. See ECF Nos. 129, 131, 140, 158. Thereafter, a status conference was held on October 17, 2023. Order dated Oct. 17, 2023 (ECF No. 167). The parties agreed the issue ripe for the Court’s consideration is whether there is evidence to support a claim for lost wages. Id. at 1. The parties agreed to brief the issue. Id. Petitioner filed a memorandum on December 4, 2023. Pet. Memorandum Supporting Loss of Earnings Award (“Pet. Memo.”), filed Dec. 4, 2023 (ECF No. 174). Respondent filed his response on February 1, 2024, and Petitioner filed a reply on February 13, 2024. Resp. Response and Objection to Pet. Claim for Lost Earnings and Retention of Potential Vocational and/or Economic Experts (“Resp. Response”), filed Feb. 1, 2024 (ECF No. 179); Pet. Reply Supporting Loss of Earnings Award (“Pet. Reply”), filed Feb. 13, 2024 (ECF No. 180). This matter is now ripe for adjudication. III. ISSUE TO BE DECIDED The sole issue to be decided is whether there is preponderant evidence to support Petitioner’s claim for a loss of earnings award. See Order dated Oct. 17, 2023; Pet. Memo. at 9; Resp. Response at 1. 2 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 3 of 39 IV. SUMMARY OF EVIDENCE A. Summary of Medical Records Petitioner, a pharmacist, was 46 years of age when he received his third hepatitis B vaccination,3 on October 2, 2014, in his left arm. Pet. Ex. 1 at 6. Petitioner’s chiropractic records establish that pre-vaccination, in 2013, he had a history of upper and lower back pain, and sharp pain on the left side going down his left arm. Pet. Ex. 2 at 6. “Stress at work” and standing for long periods aggravated his pain. Id. He also had minor occasional headaches and seasonal allergies. Id. at 7-8. In May 2013, Petitioner rated his upper back pain a 7 out of 10, and his lower back pain as a 10. Id. at 21. Petitioner’s prior medical history is non-contributory as it relates to his Bell’s palsy. On October 6, 2014, Petitioner presented to neurologist Dr. Shahbuddin Mukardamwala, with weakness of the left side of his face. Pet. Ex. 3 at 1. Petitioner reported that he had received the hepatitis B vaccine the prior Thursday (October 2, 2014), and that the following day, Friday (October 3, 2014), he had a severe headache involving the left postauricular4 area. Id. By Saturday (October 4, 2014), Petitioner was unable to close his left eye and he had numbness of the left side of his face. Id. He sought treatment at a local emergency room, where he was noted to have neuropathic pain. Pet. Ex. 7 at 2. Petitioner denied having any urinary tract infection, upper respiratory infection, fever, or recent travel. Pet. Ex. 3 at 1. Dr. Mukardamwala’s physical examination revealed that Petitioner was unable to wrinkle the left side of his forehead, that he had left eye closure weakness, and left nasolabial flattening. Id. Dr. Mukardamwala diagnosed Petitioner with “[l]eft peripheral seventh nerve palsy, likely idiopathic;” “[l]eft postauricular pain;” and “[c]hronic lower back pain.” Id. at 2. Prescriptions were given for prednisone, Valtrex,5 and Vitamin B12. Id. Petitioner requested a work excuse form. Id. “He state[d] that he work[ed] [] two days a week, and given his ability to close the eye and frequent dryness issues, he [would] not be able to work. Patient was given [the] requested form.” Id. Petitioner returned to see Dr. Mukardamwala on October 13, 2014, with worsening of his left postauricular pain. Pet. Ex. 3 at 3. He also reported a history of chronic neck pain and 3 The hepatitis B vaccine is given in a series of three doses on a zero, one-month, and six-month schedule. See Pet. Exhibit (“Ex.”) 41 at 2. Petitioner received the ENGERIX-B vaccine. Pet. Ex. 1 at 6. 4 The postauricular area is behind or posterior to the auricle, the exterior portion, of the ear. Postauricular, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/ definition?id=40478 (last visited June 5, 2024); Auricula, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=4877 (last visited June 5, 2024). 5 “Valtrex (valacyclovir) is an antiviral medication used to treat infections with[] herpes zoster (shingles), herpes simplex genitalis (genital herpes), and herpes labialis (cold sores).” Valtrex, RxList, https://www.rxlist.com/valtrex-drug.htm (last visited June 5, 2024). 3 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 4 of 39 complained of some “tightness of his right side of the face.” Id. Petitioner was advised to discontinue Valtrex due to fatigue. Id. Petitioner “stated that [a] heating pad help[ed] with [his] postauricular pain.” Id. Ibuprofen did not help the pain, although hydrocodone helped “to some extent.” Id. Petitioner reported no other symptoms. Id. Assessment was “[l]eft peripheral seventh nerve palsy, likely idiopathic;” “[p]ostauricular pain;” “[c]hronic neck pain;” and [f]atigue.” Id. Magnetic resonance imaging (“MRI”) was ordered, which did not show any acute intracranial process. Id.; Pet. Ex. 5 at 15. Petitioner was given Cymbalta6 samples for pain. Pet. Ex. 3 at 3. Dr. Mukardamwala next saw Petitioner on October 17, 2014 for continued symptoms. Pet. Ex. 3 at 4. The day before, he called to report “severe left-sided occipital temporal headaches with subjective feeling of numbness.” Id. Dr. Mukardamwala increased the dose of Cymbalta, which Petitioner stated did not help him. Id. Petitioner also reported “lower back pain,” which he had previously received chiropractic treatment for. Id. Physical examination showed Petitioner’s eye closure had improved. Id. Petitioner underwent an occipital nerve block. Id. He “tolerated the procedure well and reported symptomatic improvement.” Id. at 5. He “requested medication for anxiety and breakthrough pain” and was given “10 tablets of Tylenol #3[] and 10 tables of Ativan 1 mg as needed.” Id. Petitioner also wanted to try acupuncture and Dr. Mukardamwala wrote a prescription for physical therapy. Id. Dr. Mukardamwala’s assessment was “[l]eft peripheral seventh nerve palsy, likely idiopathic,” and was “[i]mproving gradually;” “[p]ostauricular pain;” “[o]ccipital neuralgia;” and “[a]nxiety.” Id. at 4. Dr. Mukardamwala reviewed the normal MRI findings. Id. Petitioner requested an excuse for work, “[h]owever, [Dr. Mukardamwala] discussed with him that his symptoms have been improving, and he may return to work.” Id. On November 4, 2014, Petitioner returned for follow-up. Pet. Ex. 3 at 6. Since receiving the nerve block at the previous visit, “his pain [was] better.” Id. He had been to the chiropractor and the treatment had “relieved his muscle tension.” Id. He “report[ed] improvement in his symptoms.” Id. He did not go to physical therapy because he read online that “he should not [overexert] himself.” Id. Petitioner also stated that he had contacted a lawyer for compensation, “as he believe[d] that hepatitis vaccine caused hi[s] Bell’s palsy.” Id. Assessment was “[l]eft [] seventh nerve palsy, improving;” “[o]ccipital neuralgia, resolved;” and “[a]nxiety, better.” Id. Dr. Mukardamwala noted that Petitioner was “improving gradually.” Id. “His facial strength was better,” his “[l]eft nasolabial fold [was] reappearing,” “[h]is forehead wrinkling ha[d] improved,” and he had “improvement in blinking on left side.” Id. Petitioner next saw Dr. Mukardamwala for follow-up on January 5, 2015. Pet. Ex. 3 at 7. He stated that before his last visit in November 2014, he began having panic episodes at night. Id. In one week, he had three panic episodes. Id. “[H]e suddenly gets up and screams and he starts running and he feels being chased. This lasts for one minute before he comes to himself. Then he comes to realization and settles down.” Id. He admitted having palpitations, feeling of 6 “Cymbalta (duloxetine) is a selective serotonin and norepinephrine reuptake inhibitor (SNRI) used for treating depression, anxiety disorder, and pain associated with diabetic peripheral neuropathy or fibromyalgia.” Cymbalta, RxList, https://www.rxlist.com/cymbalta-drug.htm (last visited June 5, 2024). 4 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 5 of 39 dying during that episode. He also report[ed] feeling depressed and anxious,” as well as “anger about his situation.” Id. Petitioner informed Dr. Mukardamwala that he had not returned to work and “now he wants to go back to work with shorter shifts.” Id. His Bell’s palsy had improved—he had a symmetric smile and symmetric forehead wrinkling. Id. Assessment was “[l]eft Bell’s palsy,” “[p]ossible anxiety/panic attacks,” “[i]nsomnia,” and “[n]ightmares - ? [p]arasomnia.”7 Id. Petitioner was advised to take melatonin for insomnia and Paxil for anxiety. Id. Dr. Mukardamwala provided a “return to work certificate with his request to work [] shorter shifts (~8 hours).” Id. Dr. Mukardamwala next saw Petitioner on February 24, 2015. Pet. Ex. 3 at 8. He reported “left facial tightness and facial spasms.” Id. His nightmares had improved on Paxil, but he “lack[ed] [a] sense of well being,” although he “feels ‘ok’ during daytime.” Id. Physical examination showed that his Bell’s palsy had improved; he had a “[s]ymmetric smile,” and “symmetric forehead wrinkling.” Id. Assessment was “[l]eft Bell’s palsy – great improvement;” “[p]ossible anxiety/panic attacks;” “[i]nsomnia;” “[l]eft facial muscle spasms;” and “[n]ightmare disorder.” Id. Dr. Mukardamwala advised Petitioner to “use warm compresses for left facial tightness,” take Methocarbamol8 for spasms as needed, and continue Paxil at a reduced dose. Id. Dr. Mukardamwala referred Petitioner to a psychiatrist for anxiety and panic attacks. Id. Dr. Salah Qureshi, a psychiatrist, saw Petitioner on March 11, 2015. Pet. Ex. 6 at 1-5; Pet. Ex. 8 at 2. Petitioner “report[ed] that in October 2014 he ha[d] an episode of Bells palsy. It took him a while to recover from it and during the process he became very anxious and depressed.” Pet. Ex. 8 at 2. He complained of facial pain. Id. Petitioner stated that he had sleep disturbances and “found himself shouting and yelling in the middle of the night. . . . He is having nightmares and flashbacks. He feels tired. He is now worried about all these things going on with him.” Id. Mental status examination revealed that Petitioner was “alert, awake[,] and oriented to [time, place, and person]” and his “mood [was] anxious.” Id. His affect was “appropriate” and “insight and judgement [were] fair.” Id. Dr. Qureshi prescribed Effexor9 and Klonopin10 and discontinued Paxil. Id. There is no indication that Petitioner requested an 7 Parasomnia refers to “a category of sleep disorders in which abnormal physiologic or behavioral events occur during sleep, due to inappropriately timed activation of physiologic systems; it includes nightmare disorder, sleep terror disorder, and sleepwalking disorder.” Parasomnia, Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/ definition?id=36982 (last visited June 5, 2024). 8 “Methocarbamol is indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions.” Methocarbamol, RxList, https://www.rxlist.com/methocarbamol/generic-drug.htm (last visited June 5, 2024). 9 Effexor (venlafaxine) “is used to treat depression, anxiety, panic attacks, and social anxiety disorder (social phobia).” Venlafaxine, RxList, https://www.rxlist.com/venlafaxine/generic- drug.htm (last visited June 5, 2024). 10 Klonopin (Clonazepam) “is prescribed for the treatment of anxiety and seizure disorders.” Klonopin, RxList, https://www.rxlist.com/klonopin-drug.htm (last visited June 5, 2024). 5 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 6 of 39 excuse from work and there is no reference to Petitioner’s inability to work. See id.; Pet. Ex. 6 at 4-5. Petitioner next saw Dr. Qureshi on April 8, 2015. Pet. Ex. 8 at 3. At this visit, he reported “feeling better” although he “continue[d] to feel anxious and depressed.” Id. “He [was] sleeping and eating fair.” Id. He was taking the prescribed medications and denied any adverse side effects. Id. On examination, Petitioner’s “mood [was] less depressed, less anxious.” Id. There was no mention of Petitioner’s mental health problems impacting his ability to perform his job. See id.; Pet. Ex. 6 at 6-7. On May 6, 2015, Petitioner returned to Dr. Qureshi. Pet. Ex. 8 at 4. At this visit, Dr. Qureshi stated that Petitioner presented for his “[post-traumatic stress disorder (“PTSD”)] follow up.” Id. Petitioner “report[ed] feeling less depressed and less anxious.” Id. Although Effexor XR was less effective than “regular Effexor,” Petitioner reported that “Klonopin [was] working well for him.” Id. Petitioner was “sleeping and eating well.” Id. He stated that “[h]e [did] not have any other stressors in [his] life.” Id. Examination showed that Petitioner’s “mood [was] less depressed, less anxious.” Id. He denied “any abnormal perceptions” and insight and judgment were noted to be fair. Id. Dr. Qureshi prescribed Celexa11 in addition to his other medications. Id. Dr. Qureshi did not document any concerns about Petitioner’s ability to work as a pharmacist. See id. Dr. Qureshi next saw Petitioner on June 18, 2015. Pet. Ex. 8 at 5. Petitioner reported that he was “feeling better” although he did not think Celexa was working. Id. He was “less anxious and less depressed” and he was “not having any nightmares.” Id. He was also “sleeping and eating fair.” Id. Dr. Qureshi’s diagnosis was “[s]ingle major depressive episode.” Id. Dr. Qureshi discontinued Celexa and prescribed Wellbutrin.12 Id. Petitioner did not report having any difficulty working as a pharmacist, and Dr. Qureshi did not document any concerns about his ability to work. See id. There are no records of visits by Petitioner to see Dr. Qureshi for four months, until October 20, 2015. Pet. Ex. 8 at 6. At his visit on October 20, 2015, he stated that he ran out of his medications two weeks before because he missed his appointment. Id. He did not feel well and wanted to go back on Effexor and Klonopin. Id. He reported “feel[ing] depressed at times,” and he was “having some difficulty sleeping.” Id. He discontinued taking Celexa because “he [did] not like it.” Id. Dr. Qureshi’s diagnoses were “[s]ingle major depressive episode” and “[PTSD].” Id. Petitioner did not report any problems with his employment or ability to work. See id. 11 “Celexa (citalopram hydrobromide) is a type of antidepressant called a selective serotonin reuptake inhibitor (SSRI) indicated for the treatment of depression.” Celexa, RxList, https://www.rxlist.com/celexa-drug.htm (last visited June 5, 2024). 12 “Wellbutrin (bupropion) is an antidepressant . . . used for the management of major depression and seasonal affective disorder.” Wellbutrin, RxList, https://www.rxlist.com/wellbutrin- drug.htm (last visited June 5, 2024). 6 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 7 of 39 Three months later, on January 13, 2016, Petitioner returned to Dr. Qureshi for a follow- up appointment. Pet. Ex. 8 at 7. He was “feeling less anxious and less depressed.” Id. He was “sleeping and eating fair.” Id. He liked the Wellbutrin. Id. His diagnoses remained “[s]ingle major depressive episode” and “[PTSD].” Id. Petitioner did not report any problems with his employment or ability to work at this visit. See id. Petitioner returned on April 13, 2016, three months later, for follow-up, and reported that he was “doing fine.” Pet. Ex. 8 at 8. He was “undergoing [a] jury trial for divorce and fe[lt] pressured because of that. He [was] stressed out financially and [was] also taking care of his [two] year old daughter.” Id. He felt “overwhelmed,” “anxious at time,” and had experienced a “panic attack 10 days ago . . . for a few minutes.” Id. He was “angry and frustrated at his wife” who “initially ran away with his daughter.” Id. Dr. Qureshi documented that Petitioner was “able to sleep well at night.” Id. His medications, particularly the Wellbutrin, were “working well for him.” Id. At the April 13, 2016 visit, Petitioner did not report that he had been terminated from his employment due to failure to obtain approval for leave. See id.; see also Pet. Ex. 63 at 190. There are no records of visits to Dr. Qureshi’s office after the visit on April 13, 2016 until April 26, 2017, a period of over one year. See Pet. Ex. 8 at 9. On April 26, 2017, Petitioner returned to Dr. Qureshi for “[i]ncreased anxiety” and medication refill. Pet. Ex. 8 at 9. He reported “feeling very anxious due to ongoing divorce.” Id. He “[was] restless and not able to sleep well.” Id. He was also “overwhelmed and stressed.” Id. He was “taking care of his daughter” and “looking for a job now.” Id. Diagnosis was PTSD. Id. He restarted Klonopin and started Zoloft.13 Id. There was no documentation to suggest that either Petitioner or Dr. Qureshi had any concerns about Petitioner’s ability to return to work as a pharmacist. See id. at 9-10. Petitioner returned for follow-up of his anxiety to Dr. Qureshi’s office on May 10, 2017 and saw Jie Zheng, Physician Assistant (“PA”). Pet. Ex. 8 at 11. Petitioner was “less depressed and less anxious.” Id. He reported “sleeping better.” Id. The subjective history taken from Petitioner stated, He is a former pharmacist but has not been working due to medical issues and the ongoing divorce and custody. He is in a lot of stress due to family issues but he does not want to see a therapist. He states that last week he applied for [S]ocial [S]ecurity [D]isability for the following reasons: herniated [discs], colorectal surgery, depression and anxiety, and [B]ell’s palsy secondary to [h]ep[atitis] B immunization. He may need Dr. Qureshi to sign the paperwork when needed. Id. His diagnosis remained PTSD. Id. His medications were renewed. Id. at 11-12. 13 “Zoloft (sertraline) is an SSRI (selective serotonin reuptake inhibitors) antidepressant prescribed for the treatment of[] depression, obsessive compulsive disorder (OCD), panic disorder, [PTSD], [and] social anxiety disorder . . . .” Zoloft, RxList, https://www.rxlist.com/ zoloft-drug.htm (last visited June 5, 2024). 7 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 8 of 39 At the next follow-up visit on June 7, 2017, Petitioner saw Quynh Tu Vu, PA. Pet. Ex. 8 at 13. Petitioner stated he was “feeling fair,” although he “continue[d] to have some anxiety and depression.” Id. He was “more concerned with the anxiety due to ongoing divorce proceeding and child custody trial.” Id. “[H]is daughter is everything to him and [he] will do his best to raise her.” Id. Again, Petitioner reported “sleeping and eating well.” Id. He also restated that he was in the process of applying for Social Security Disability benefits “for the following reasons: herniated [discs], colorectal surgery, depression and anxiety, and [B]ell’s palsy secondary to [h]ep[atitis] B immunization.” Id. Petitioner requested “some PRN[14] pain med[ications] if possible.” Id. Prescriptions for refills of Klonopin and new prescriptions for Paxil and Tramadol15 were given. Id. at 14. On August 25, 2017, Petitioner underwent a medical examination for a Social Security Disability determination by Dr. Ron Kirkwood, D.O.. Pet. Ex. 14 at 2-5. Dr. Kirkwood noted that Petitioner “continue[d] to have some palsy on the left side of his face,” and that it affected his eye. Id. at 2. Petitioner presented to Dr. Raghu Athre, M.D., on April 25, 2018, complaining of tightness in the left side of his face. Pet. Ex. 11 at 1. Petitioner reported that his “muscle tightness [was] due to Bell’s palsy” in October 2014, and that he had “pain due to the muscle spasm.” Id. at 3. Dr. Athre documented that Petitioner had “complete facial nerve movement on the left side.” Id. Physical examination revealed his “[t]rigeminal nerve [was] intact over all three branches. No cranial nerve deficits [were] noted.” Id. at 1. Dr. Ahtre “explained to the patient that [he] fe[lt] his cosmetic outcome after Bell’s palsy [was] excellent.” Id. Dr. Ahtre did not recommend any additional treatment for Petitioner’s Bell’s palsy. Id. B. Supplemental Medical Records16 The following supplemental records were filed after the Ruling on Entitlement issued and in support of Petitioner’s damages claims. 14 PRN stands for pro re nata, or “according to circumstances.” P.R.N., Dorland’s Med. Dictionary Online, https://www.dorlandsonline.com/dorland/definition?id=40973 (last visited June 5, 2024). 15 “Ultram (tramadol) is a pain reliever (analgesic) used to treat moderate to moderately severe pain in adults.” Ultram, RxList, https://www.rxlist.com/ultram-drug.htm (last visited June 5, 2024). 16 See Pet. Exs. 45-68. The undersigned has reviewed all exhibits filed in this case, including any that are not specifically covered in the Ruling on Entitlement or this Ruling. If they are not referenced in the Ruling on Entitlement or in this Ruling, there are not materially significant to the issues to be adjudicated. 8 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 9 of 39 1. Memorial Hermann Clinic: 2018 to 2019 In 2018 and 2019, Petitioner received medical care at Memorial Hermann Clinic, where he saw family practice physician, Dr. Marlyn Generillo, for general medical care. See Pet. Ex. 49. On May 9, 2018, Petitioner saw Dr. Generillo for low back pain that “started in 2004.” Id. at 3. The note from that visit stated that Petitioner was unable to work due to his back pain. Id. Formerly, Petitioner “work[ed] as a pharmacist but standing for long periods of time hurt his back a lot.” Id. Dr. Generillo also noted Petitioner’s history of severe anxiety. Id. Petitioner’s Problem List did not include Bell’s palsy. See id. Review of symptoms did not identify any problems secondary to Bell’s palsy. See id. Physical examination did not identify any abnormalities related to Bell’s palsy. See id. at 3-4. Dr. Generillo refilled Petitioner’s prescription for Tylenol #3 and ordered Flexeril and meloxicam for back pain. Id. at 4. Petitioner returned to see Dr. Generillo on September 27, 2018, complaining of thoracic back pain and rectal pressure. Pet. Ex. 49 at 8. In 2010, Petitioner had a lateral sphincterotomy for a rectal fistula, and he was experiencing rectal pressure symptoms again. Id. Dr. Generillo referred Petitioner to a colorectal surgeon. Id. at 9. There was no mention of any problems with Bell’s palsy. See id. at 8-9. On October 16, 2018, Petitioner saw colorectal surgeon Dr. Mohummed Radwan Khani for “history of weak sphincter muscles.” Pet. Ex. 49 at 12. Dr. Khani noted that Petitioner had a past medical history of “stress disorder due to chronic back pain with herniated disc.” Id. The appointment focused on Petitioner’s rectal pressure and urgency and frequent bowel movements. See id. at 12-13. There was no discussion of Bell’s palsy. See id. Petitioner completed a patient questionnaire at this appointment. Id. at 21-23. In the section about past medical history, Petitioner did not document his history of Bell’s palsy. See id. at 21. He also did not document any current symptoms related to Bell’s palsy in his review of systems. See id. at 23. Petitioner documented his current symptom of anxiety and wrote it was “due to stress from the anal sphincter issue. Excessive [bowel movement] urgency and chronic back problem due to herniated lumbar disc.” Id. He did not attribute his current anxiety to Bell’s palsy. See id. at 21- 23. The next visit with Dr. Generillo was February 21, 2019, again for back pain. Pet. Ex. 49 at 24. At this visit, Petitioner requested a refill of Soma for his back pain. Id. He said that the Soma also helped with “spasms o[f] his facial muscles.” Id. Dr. Generillo refilled the Soma and stated, “consider neuro[logist] referral if not better.” Id. at 25. There is no further reference to Bell’s palsy in these records. And it does not appear that a referral to a neurologist was made. Dr. Generillo next saw Petitioner for his annual physical on March 25, 2019. Pet. Ex. 49 at 27-28. There were no issues or problems related to Bell’s palsy documented at this visit. See id. Petitioner saw endocrinologist, Dr. Edward W. Nicklas II, on April 4, 2019, on referral from Dr. Generillo, for follow-up of a thyroid nodule detected by ultrasound. Pet. Ex. 49 at 49- 50. Dr. Nicklas’ history stated Petitioner’s “[m]ain concern [was] chronic back problem, in which [he] [was not] able to do pharmacy work.” Id. at 49. Review of systems and physical 9 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 10 of 39 examination results do not mention Bell’s palsy. See id. at 49-50. Dr. Nicklas did not find the ultrasound concerning and recommended follow-up in one year. Id. at 50. On April 12, 2019, Petitioner saw Dr. Khani in follow-up for his rectal problems and was referred for a colonoscopy. Pet. Ex. 49 at 62-63. The last visit to Dr. Generillo was September 12, 2019, when Petitioner presented with cough and congestion, and was diagnosed with an upper respiratory infection. Pet. Ex. 49 at 65- 66. 2. Endocrinology and Gastroenterology Records: 2020 to 2021 Petitioner filed records from visits to specialists in endocrinology and gastroenterology, along with relevant diagnostic studies from 2020 and 2021. See Pet. Ex. 45 (Digestive Health Center, Bay Area Houston Endoscopy, and other providers); Pet. Ex. 47 (The Endocrinology Clinic, including records from HAR Surgical, Clear Lake Specialties, PA, and other providers). These records document Petitioner’s abdominal pain, hernias, rectal problems, and other gastrointestinal problems. See id. Petitioner suffered from gastritis, esophagitis, abdominal pain, inguinal hernia, rectal spasms, and had a past history of sphincterotomy for anal fissure. See id. He had continued symptoms of frequency and urgency. Pet. Ex. 45 at 4, 25. The records do not discuss Petitioner’s Bell’s palsy or its sequalae. See id. However, Petitioner did reference Bell’s palsy in a patient questionnaire he completed on April 22, 2021. Pet. Ex. 47 at 76. Petitioner wrote that he was a “Pharmacist 1998-2016. Couldn’t . . . work after March 2016 due to severe pain. Very frequent urgency to empty [his] bowel. Severe back pain and neck pain (chronic due to arthritis and disc problems, as well as nerve problems). PTSD from Bell’s palsy which started in October of 2014 after receiving [h]ep[atitis] B [] shot.” Id. Petitioner’s Exhibit 45 also contains some records dating back to 2009 and 2010, relevant to diagnostic studies that show colonic diverticulosis and a surgical pathology report from a rectal biopsy perform August 17, 2010. Pet. Ex. 45 at 20-22. 3. Texas Behavioral Health: 2022 to 2023 As described above, Petitioner was seen in Dr. Qureshi’s office on June 7, 2017. Pet. Ex. 8 at 13. There is another gap in records from June 7, 2017 until April 2, 2018. Pet. Ex. 46 at 2. On April 2, 2018, Petitioner reported to Dr. Qureshi that in March he was admitted to the hospital for chest pain but was diagnosed with anxiety. Pet. Ex. 46 at 2. His primary care physician prescribed Diazepam for anxiety, and he was “doing much better.” Id. Also, Petitioner “recently received custody of his daughter and he [was] feeling better.” Id. Dr. Qureshi’s diagnosis was PTSD and insomnia, and refills were given for Diazepam, Paxil, and Ambien. Id. at 2-3. There was no reference to Petitioner’s employment status at this visit. Jie Zheng, PA saw Petitioner for follow-up on May 3, 2018. Pet. Ex. 46 at 4. Petitioner now had “custody of his daughter and [was] happy about it.” Id. He reported being less depressed and anxious. Id. He also left paperwork to support his disability claim with Dr. 10 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 11 of 39 Qureshi to complete. Id. Petitioner “denie[d] other life stressors at present.” Id. At his follow- up visit on June 4, 2018 with Jie Zheng, PA, Petitioner reported “doing ‘ok’” and less depressed and anxious on his current medications. Id. at 6. He had an MRI due to back pain and was taking Tylenol #3 for the pain. Id. Petitioner reported some anxiety and stress related to caring for his daughter. Id. He was also noted to be in the process of getting a divorce. Id. Petitioner’s next visit was July 2, 2018, again with Jie Zheng, PA. Id. at 8. The records from that visit do not show any substantive changes in Petitioner’s condition. See id. at 8-9. At these three visits, Petitioner’s Bell’s palsy was not documented as contributing to his anxiety. See id. at 4-9. Petitioner had a telephone visit with Dr. Qureshi on July 17, 2018, and was seen by Sheila Huynh, PA, to complete his disability paperwork. Pet. Ex. 46 at 11. He reported that he was “not able to focus” and had been “out of work since March 2016.” Id. “He complain[ed] of continue[d] pain and not [being] able to stand for [a] long time.” Id. His current stressor was “out of work[] and divorce complete.” Id. Petitioner did not identify his Bell’s palsy as a current stressor. See id. Diagnosis was PTSD and insomnia. Id. at 12. Petitioner’s medications were refilled. Id. On August 7, 2018, Petitioner saw Jie Zheng, PA. Pet. Ex. 46 at 14. They discussed his medication regimen. Id. He reported being stressed by his divorce case; his next court date was August 22. Id. At his next visit on September 7, 2018, Petitioner again saw Jie Zheng, PA. Id. at 17-18. There was no history documented. Id. Petitioner had a two-month follow-up visit on November 12, 2018 with Jie Zheng, PA. Id. at 20. He reported that “he ha[d] been off his medications for several weeks,” and he could not make an appointment due to a procedure. Id. He was “struggl[ing] with his ex-wife” and reported “she [was] causing troubles.” Id. Petitioner’s records from 2018 visits do not document that he was experiencing stress due to his Bell’s palsy; his stressors were documented to be related to obtaining custody of his daughter, his ongoing divorce proceedings, and his finances. See Pet. Ex. 46 at 2-22. Petitioner returned to the office and was seen by Jie Zheng, PA on January 22, 2019. Pet. Ex. 46 at 23. He had missed his prior appointment and had been off his medications for several weeks. Id. He reported “some panic attacks.” Id. He was “stressed financially.” Id. Petitioner’s medication was refilled. Id. at 24. On February 20, 2019, Petitioner stated “he ha[d] been doing ‘Okay’” although he reported stress due to finances. Id. at 26. On March 29, 2019, Petitioner “denie[d] having panic attacks since [his] last visit” and he thought that Xanax was working well. Id. at 29. He was sleeping well with Ambien. Id. He remained stressed due to finances. Id. He had a court day in May 2019 related to his disability claim. Id. On April 26, 2019, Petitioner again saw Jie Zheng, PA. Id. at 32. He was stressed due to his “ex-wife” and “worry[ing] about [his] daughter.” Id. He was also “stressed financially.” Id. At his visit on May 31, Petitioner reported that he had stress “due to his disability application pending” and from his “back pain.” Id. at 35. On July 23, he was “stressed due to denial of disability application,” “back pain,” and finances. Id. at 38. At the next visit on September 23, 2019, again with Jie Zheng, PA, Petitioner’s stress was “due to his physical pain” and finances. Id. at 41. Two months later, on November 21, 2019, he continued to report “feeling stressed due to his back pain. Id. at 44. Petitioner’s depression and anxiety were described as “fairly well controlled.” Id. 11 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 12 of 39 During his visits in 2019, there was no documentation that Petitioner’s stress or anxiety was due to Bell’s palsy; his reported stressors were related to his finances, ex-wife, worry for his daughter, back pain, and the denial of his disability application. See Pet. Ex. 46 at 23-46. Moving to 2020, Petitioner’s first appointment was on February 19, 2020, with Jie Zheng, PA. Pet. Ex. 46 at 47. He reported that he was not feeling well and was experiencing “deep anger ‘about things that don’t go with [his] expectation . . . the court . . . the violation [his] daughter’s mother is doing . . . this [gave] [him] a lot of stress.’” Id. He felt that he could not “get justice.” Id. Petitioner’s medications were adjusted and refilled. Id. at 47-48. At his next visit with Jie Zheng, PA, via telemedicine, on June 15, 2020, Petitioner reported “feeling ‘fine’ since [his] last visit,” although he continued to have “anxiety due to his current situation.” Id. at 50. On September 14, 2020 at a telemedicine visit, Jie Zheng, PA wrote that Petitioner was “feeling somewhat depressed and anxious ‘due to the COVID-19 . . . it creates a lot of chaos.” Id. at 53. He was “worried about this pandemic.” Id. At Petitioner’s telemedicine visit on October 21, 2020, he was reportedly “depressed ‘due to COVID-19 and other things.’” Id. at 56. Jie Zheng, PA adjusted Petitioner’ medications. Id. at 56-57. At his visit with Jie Zheng, PA, on November 19, 2020, via telemedicine, Petitioner’s current stressors were “financial problems; COVID-19; [and] daughter’s online learning.” Id. His disability claim was denied, and “he [did] not have income to pay property tax.” Id. In 2021, Petitioner continued to have telemedicine visits. Pet. Ex. 46 at 62. On February 24, 2021, Petitioner saw Jie Zheng, PA, and reported “feeling depressed” with little “interest/motivation to do anything.” Id. His current stressors were finances, the pandemic, and being a single parent caring for his daughter. Id. At his follow-up visit on May 21, 2021, Petitioner was seen by Jayma Mickler, PAC. Id. at 65. At this visit, Petitioner reported “stress due to past trauma from when he received the [h]ep[atitis] B vaccine and had severe complications after,” which “ha[d] severely impacted his life and functioning.” Id. He reported “feeling hopeless at times” and that his “panic attacks [were] better controlled with the [K]lonopin.” Id. Jayma Mickler, PAC next saw Petitioner on August 13, 2021. Id. at 67. Dr. Khwaja Tariq signed off on the note from this visit as the supervising physician. Id. at 68. Petitioner’s current stressors were “mental illness and finances.” Id. at 67. “He report[ed] he [was] not able to receive the Covid 19 vaccine due to complications from previous vaccines, therefore he [was] now even more isolative. He report[ed] feeling lonely.” Id. At his last visit in 2021, on November 9, 2021, Petitioner was seen by Oghale Mukoro, PMHNP. Id. at 69. At this visit, Petitioner reported “[f]eeling down, depressed, or hopeless [n]early every day.” Id. He was assessed with moderately severe depression. Id. at 70. His current stressor was finances. Id. at 69. Petitioner continued to have follow-up visits in 2022. He was seen by Jayma Mickler, PAC for four visits, all conducted remotely through telemedicine. Pet. Ex. 55 at 2-14. Dr. Tariq signed off as the supervising physician. Id. All of the visits were for “follow up treatment of depression[] [and] anxiety.” Id. at 2, 5, 8, 11. On the first of the four appointments, on February 9, 2022, Petitioner reported “depressed mood, anhedonia, and lack of motivation” as well as “ongoing anxiety and excessive worrying.” Id. at 2. However, his medications were helping and he wanted to continue his current regimen of Klonopin, Ambien, and Zoloft. Id. Stressors 12 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 13 of 39 included “dealing with mental illness and finances.” Id. Examination revealed that Petitioner’s short- and long-term memory were normal, that attention was normal, and insight and judgment were described as fair. Id. at 2-3. Diagnoses were “[m]ajor depressive disorder, recurrent episode, moderate;” “[g]eneralized anxiety disorder;” and PTSD. Id. at 3. Medical records from Petitioner’s appointments on May 9, August 1, and November 1, 2022, were all very similar. See Pet. Ex. 55 at 5-14. On May 9, Petitioner reported that his current stressors included “dealing with mental illness and finances.” Id. at 5. At the visit on August 1, Petitioner reported “depression and anxiety related to his past trauma. He report[ed] he ha[d] started therapy to work through these issues.” Id. at 8. The past trauma was not described in the records. See id. Bell’s palsy, or its residual effects, was not mentioned. See id. Although the note stated that he had started therapy, the name of the therapist was not identified. See id. In the last visit, on November 1, 2022, Petitioner reported that his current stressors were “dealing with mental illness” and “related to finances and trouble gaining SSI [disability].” Id. at 11. Petitioner was seen by Dr. Tariq for a remote telemedicine visit on January 13, 2023. Pet. Ex. 59 at 2. Chief complaint was “legal evaluation.” Id. (emphasis omitted). The purpose of the visit was for a “legal evaluation” of Petitioner’s “current mental status.” Id. (emphasis omitted). The evaluation was done “in the context of [Petitioner’s] lawyers wanting to talk to supervising provider about patient’s current mental status.” Id. Petitioner reported “low mood, anhedonia, lack of energy, feelings of hopelessness, insomnia[,] and feelings of helplessness.” Id. He also “discussed the impact his facial palsy [] had on his mental health.” Id. He reported that he never had “depression or anxiety prior to the facial palsy. He fe[lt] the facial palsy, through the symptoms it caused [] including head and neck pain, change in appearance etc. ha[d] impaired him to the point that he has no meaningful ability to function socially or occupationally.” Id. Petitioner acknowledged “mild improvement in his depressive and anxiety symptoms with medication [] and psychotherapy.” Id. On examination, Dr. Tariq noted Petitioner’s thought process was “[l]ogical and linear,” his short- and long-term memory were normal, his attention span was normal, and insight and judgment were fair. Id. at 3. Dr. Tariq’s diagnoses included “[m]ajor depressive disorder, recurrent episode, moderate;” “[g]eneralized anxiety disorder;” and PTSD. Id. Petitioner agreed to continue his current medications, which included Ambien for sleep as needed, Zoloft daily, Klonopin as needed three times per day, and Trazodone at bedtime as needed. Id. In addition to the medical records, Dr. Tariq wrote two versions of a “Psychiatric Opinion Letter,” both dated February 2, 2023, regarding his visit with Petitioner on January 13, 2023. Pet. Exs. 57-58. In the first, Dr. Tariq stated that Petitioner had been under his care since May 2021, through Jayma Mickler, PAC, and that he was seen for a comprehensive evaluation on January 13, 2023. Pet. Ex. 57 at 1; see Pet. Ex. 46 at 65; Pet. Ex. 59 at 2. Dr. Tariq stated that despite treatment with medication and psychotherapy, Petitioner had “not experienced any meaningful or lasting improvement in his symptoms.” Pet. Ex. 57 at 1. Dr. Tariq also stated that Petitioner “consistently cited his facial palsy as his primary stressor.” Id. When seen on January 13 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 14 of 39 13, 2013, Petitioner was described as “severely depressed and anxious.”17 Id. at 1-2. Dr. Tariq concluded that it was his opinion that “the facial palsy subsequent to [h]epatitis B vaccination in October of 2014 is the most important predisposing and precipitating factor in the etiology of [Petitioner’s] current psychiatric symptoms.” Id. at 2. Dr. Tariq added that “[t]he changes in [Petitioner’s] appearance and functioning of his facial muscles, as well as head and neck pain resulting from the Bell’s [p]alsy continue to be perpetuating factors for his mood, anxiety[,] and PTSD symptoms.” Id. The second opinion letter is similar to the first but added a paragraph about Petitioner’s inability to work. See Pet. Ex. 58 at 2. Dr. Tariq concluded that “[d]ue to the severity and persistence of his symptoms, [Petitioner] is experiencing marked impairment of his social and occupational functioning. At his current level of functioning[,] it is not possible for [Petitioner] to safely and adequately perform work duties as a [p]harmacist.” Id. at 2. Further, Dr. Tariq concluded that “[b]ased on his current mental status[,] [Petitioner] is not able to perform meaningful vocational duties in any capacity.” Id. 4. Village Medical: 2022 Petitioner also filed the records from Dr. Mark Aguilar at Village Medical. Pet. Ex. 60. These records document two visits. The first, dated June 29, 2022, was for an annual examination. Id. at 31. At that visit, Petitioner’s depression and anxiety were described as “stable.” Id. at 35. The second visit was November 23, 2022, for an upper respiratory infection. Id. at 26-29. 5. Texas Pain Physicians: 2021 to 2022 Petitioner was seen by Dr. Seema Rasheed at Texas Pain on May 25, 2021, via telemedicine, for evaluation and treatment of low back pain that began in 2004 and worsened over time. Pet. Ex. 48 at 12. He had back pain every day, and he reported that was unable to work “secondary to the pain.” Id. Petitioner also complained of gastrointestinal issues and a rectocele, which “cause[d] him a lot of anxiety.” Id. Petitioner was diagnosed with lumbar radiculopathy, lumbar spondylosis, anxiety, lumbar degenerative disc disease, chronic pain disorder, and “[a]dmission for long-term opiate use.” Id. at 12-13. Petitioner reported that he had been taking Tylenol #3 “for some time” and it “seem[ed] to help the best.” Id. at 13. Petitioner reported that he was seeing a psychiatrist for his anxiety. Id. Bell’s palsy was listed in Petitioner’s past medical history, however there was no indication that Petitioner was experiencing any pain secondary to his history of Bell’s palsy. Id. at 12-14. Petitioner returned to Texas Pain for follow-up and medication refills from July through November 2021. Pet. Ex. 46 at 15-26. At the visit on August 18, 2021, Petitioner reported seeing a psychologist18 and psychiatrist weekly. Id. at 19. On September 13, Petitioner stated 17 This statement is in contrast with Dr. Tariq’s record on January 13, in which he diagnosed Petitioner with “moderate” but not severe depression. Pet. Ex. 59 at 3. 18 Petitioner did not identify the psychologist who was treating him in 2021, and it does not appear he has produced records from that provider. 14 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 15 of 39 that he “continue[d] to have anxiety from the injection . . . which gave him Bell’s palsy, and [he was] not interested in injections” as treatment for his back pain. Id. at 21. In October 2021, Petitioner stated that his back pain was “well controlled” with his current medication. Id. at 23. Petitioner also filed medical records from Texas Pain documenting his monthly visits from December 8, 2021 until November 30, 2022, for continued treatment of his chronic back pain. Pet. Ex. 48 at 35-36; Pet. Ex. 56 at 1-23. Assessments for these visits included lumbar radiculopathy, anxiety, chronic abdominal pain, lumbar spondylosis, lumbar degenerative disc disease, chronic pain disorder, and “[a]dmission for long-term opiate use.” Pet. Ex. 56 at 1, 3, 5, 7, 9, 12-14, 16, 18, 20, 22. “Myofascial pain” was added under assessments on October 26, 2022 and was included in the assessments from the visit on November 30, 2022. Id. at 20, 22. During the period of treatment, Petitioner was prescribed acetaminophen with Codeine, Cyclobenzaprine, and Flexeril for treatment of his back pain. Id. at 1-23. The records indicated that Petitioner underwent surgery for an abdominal hernia in February 2022. Id. at 4. There is no mention in these records to any pain or other residual effects from Bell’s palsy. See id. at 1- 23. C. Petitioner’s Affidavits and Declarations Petitioner’s first affidavit was executed on December 12, 2017. Pet. Ex. 9 at 1. In it, he averred that in the three years prior to his vaccination on October 2, 2014, “[he] was in good health and [] had not needed to see a health care provider.” Id. at ¶ 4. He also stated that his last appointment with his neurologist Dr. Mukardamwala was on February 24, 2015, and that he had not seen any neurologist since that date. Id. at ¶ 5. In his second affidavit, executed on February 28, 2019, Petitioner averred that he received the hepatitis B vaccine at issue on Thursday, October 2, 2014. Pet. Ex. 15 at ¶ 1. Afterward, he experienced pain in his left arm where the vaccine was administered. Id. On the evening of October 2, he had “general malaise and soreness.” Id. On Friday morning, October 3, 2014, he went to work, and opened the pharmacy where he worked. Id. at ¶ 2. His arm was sore, but otherwise, he was fine. Id. That afternoon, he began having a headache. Id. His headache continued and became severe, with “sharp piercing pain behind [his] left ear, and [his] left eye was mildly burning with flowing tears.” Id. Although he wanted to stay out of work on Sunday, October 5, 2014, Petitioner had a mandatory drug inventory to complete so he went to work. Id. at ¶ 3. His pain, eye burning, and tearing continued. Id. When he arrived home after work, and looked in the mirror, he saw that his “face was deformed.” Id. His left eye did not blink or close, his mouth could not hold water when he tried to brush his teeth, the left side of his face had no feeling, he was unable to chew food, and his mouth was drooping on the left side. Id. Petitioner “thought [he] was having a stroke,” so he drove himself to an emergency room. Id. At the emergency room, Petitioner was given medication for his severe headache. Pet. Ex. 15 at ¶ 4. The “sharp piercing pain behind [his] left ear continued for [three to four] months” and did not respond to medical treatment, so Petitioner had a nerve block. Id. at ¶ 5. Petitioner also had numbness of his tongue for approximately six months. Id. 15 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 16 of 39 As of the date that he executed the affidavit in 2019, Petitioner averred that he continued to “experience tightness and spasms in the left corner of [his] mouth, the left side of [his] face, and the top of [his] left eye below [the] eyebrow.” Pet. Ex. 15 at ¶ 6. Petitioner also had fatigue and spasms of his left eye. Id. He avoided smiling because his smile was not symmetric. Id. He also averred that due to his Bell’s palsy, he “developed chronic anxiety, depressive episodes, nightmares due to panic attacks at night, and chronic insomnia.” Pet. Ex. 15 at ¶ 7. He further alleged that he had been “diagnosed with PTSD and chronic insomnia,” and that he saw a psychiatrist and took medication to treat these conditions. Id. Petitioner did not assert that he was unable to work due to his Bell’s palsy, PTSD, chronic insomnia, or for any other reason. See id. at ¶¶ 1-7. On September 25, 2023, Petitioner executed his first declaration. Pet. Ex. 67. In it, he stated that following his vaccine injury in October 2014, he “was unable to return to work, so [he] applied for short term disability benefits through [his] employer.” Id. at ¶ 2. He submitted his application for short term benefits to Unum on October 7, 2014. Id. at ¶ 3. He used sick pay for one week and then Unum paid for three weeks of disability. Id. at ¶ 4. He filed an appeal, seeking a longer period of disability benefits, but his appeal was denied. Id. Petitioner executed his next declaration on December 4, 2023. Pet. Ex. 68. In it, Petitioner averred that after his vaccine injury, he “first used [] sick pay and then received benefits under an Unum policy for a short period of time.” Id. at ¶ 2. He returned to work in January 2015 due to his need to support his family, however, he was “still suffering facial pain and other symptoms.” Id. at ¶ 3. In January 2015, Petitioner had “been a pharmacist for 16 years and had worked at CVS since 2004.” Id. at ¶ 4. He had intended to stay with CVS until the end of his career. Id. But in 2015, he experienced stress at work. Id. at ¶ 5. The sound of the phone ringing at work hurt his affected ear and increased his anxiety. Id. at ¶ 6. And he felt that his anxiety made it difficult to “concentrate and remember” to the point that he felt it was “not safe . . . to be pharmacist.” Id. at ¶ 6. He quit working at CVS in March 2016 due to his concerns about safety, and to limit his interaction with people and noise, in order to “keep [his] stress level down.” Id. at ¶¶ 7-8. He “did not cover a shift and was terminated for not having [his] absence approved.” Id. at ¶ 8. The HR department at CVS informed him that he could reapply for his job and that he would be hired. Id. But Petitioner stated that he could not go back because he could not “take the anxiety and pain anymore.” Id. He felt that he “just [could not] take the stress of that job anymore” or do the work safely. Id. Regarding his low back pain, Petitioner averred that he has had back pain for years. Pet. Ex. 68 at ¶ 9. He had low back pain prior to his Bell’s palsy and was able to work. Id. Petitioner stated that he “did not stop working as a pharmacist because of his back pain.” Id. Petitioner concluded the declaration by stating that his Bell’s palsy has “caused [him] to suffer from [nightmares], insomnia[,] and depression.” Pet. Ex. 68 at ¶ 10. He also had a difficult time concentrating and remembering, and his symptoms were worsened by stress. Id. 16 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 17 of 39 D. Petitioner’s Employment Records19 Petitioner’s employment records show that he was hired as a pharmacist by CVS on August 1, 2004, and his last day of work was March 10, 2016. Pet. Ex. 63 at 74, 132. On March 11, 2016, he was suspended for taking leave, pending approval, and the following day, March 12, 2016, he was terminated for taking leave that was not approved. Id. at 190. Over the period of his employment, Petitioner took leave from work, primarily for health reasons. Although the records are somewhat difficult to interpret, it appears that Petitioner took a leave of absence for health reasons on the following dates: Date Leave Taken Date Returned to Work Citation November 3, 2004 November 19, 2004 Pet. Ex. 63 at 129-30, 186-87, 242-43 August 17, 2010 September 8, 2010 Pet. Ex. 63 at 107-08, 166-67, 222-23 May 21, 2013 July 29, 2013 Pet. Ex. 63 at 96-97, 155-56, 211-13 May 6, 2014 July 14, 2014 Pet. Ex. 63 at 90-91, 149-50, 205-06 October 6, 2014 (vaccination) January 11, 2015 Pet. Ex. 63 at 85, 88, 144, 147, 200, 203; Pet. Ex. 66 at 2 Petitioner took a leave of absence for health reasons at least four times prior to his vaccination. In 2013, the year before his vaccination, it appears he took a two-month leave of absence for health reasons. And again in 2014, prior to vaccination, Petitioner also took what appears to be a two-month leave for health reasons. Beginning in 2013, Petitioner’s records show a pattern of taking leave for health reasons without first obtaining approval, resulting in suspensions. See Pet. Ex. 68 at 98, 157, 213 (May 21, 2013); Pet. Ex. 68 at 92, 151, 207 (May 6, 2014); Pet. Ex. 68 at 89, 148, 203-04 (October 6, 2014); Pet. Ex. 68 at 75, 134, 190-91 (March 11, 2016). The last suspension resulted in his termination on March 12, 2016. Id. at 74, 190. E. Petitioner’s Claim for Short Term Disability – Unum On October 7, 2014, Petitioner filed a short-term disability claim for payment of lost wages with Unum. Pet. Ex. 61 at 1. Petitioner worked as a pharmacy manager, and his last day worked was October 5, 2014. Id. at 3. Benefits were approved through November 14, 2014. Id. at 6. After that date, the claim was “closed because there was no support for restrictions and limitations beyond this date.” Pet. Ex. 66 at 21. His appeal was unsuccessful. Id. at 22. 19 Some of these records are difficult to read, especially the dates. 17 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 18 of 39 Regarding his disability20 claims arising from Bell’s palsy and neck pain, Unum stated that the records show that Petitioner “returned to work as of January 11, 2015, working 30 hours per week.” Pet. Ex. 66 at 21. He reported that he was “experiencing panic attacks and depression” and noted that he was “taking Paxil 20 mg twice a day.” Id. Unum obtained records from Dr. Qureshi (psychiatrist), Dr. Mukardamwala (neurologist), and Dr. Brandt Spies (chiropractor). Id. Based on a review of these records, the Unum representative, Teresa B. Ward, Lead Appeals Specialist, noted that Petitioner saw Dr. Spies on October 27, 2014. Id. On that date, “Dr. Spies noted [Petitioner] [was] going out of the country for family business.” Id. Petitioner saw Dr. Mukardamwala on November 4, 2014, and Petitioner’s “facial strength was better, the left nasolabial fold was reappearing, and [his] forehead wrinkling had improved. There was improvement in blinking on the left side. [Petitioner] also reported [that his] occipital neuralgia had resolved.” Id. On November 14, Dr. Spies documented that Petitioner’s “facial palsy had improved by 50%.” Id. Thus, Unum concluded that the records did not support “restrictions and limitations due to Bell’s palsy and neck pain” preventing Petitioner from “performing [his] regular occupation on a full time basis from November 14, 2014 and beyond.” Id. at 22. Petitioner also claimed short term disability related to anxiety. Pet. Ex. 66 at 22. Unum reviewed records from Dr. Mukardamwala and observed that Petitioner returned to work on January 11, 2015, for 30 hours per week, and that this supported a finding that Petitioner had the capacity to work. Id. Further, Unum found that “[t]here [was] no treatment provider(s) giving any restrictions and limitations due to a behavioral health condition.” Id. Therefore, Unum concluded “there [was] no support for restrictions and limitations due to anxiety that preclude[d] [Petitioner] from performing [his] regular occupation on a full time basis from November 14, 2014, and beyond.” Id. F. Social Security Evaluation in 2017 by Dr. Ron Kirkwood On August 25, 2017, Petitioner underwent a disability determination services evaluation “regarding bulged/herniated disc at L4-L5[] [and] facial and eye nerve damage” by Dr. Ron Kirkwood at Immediate Medical Care. Pet. Ex. 14 at 2. Dr. Kirkwood summarized Petitioner’s complaints, stating that Petitioner’s primary complaint was “chronic back pain and neck pain. He suffer[ed] daily with pain in his whole spine; basically, from his cervical spine down to his lumbar spine . . . . He also ha[d] a complaint of problems with defecation due to an anal sphincter problem.” Id. Although Petitioner had surgery, he had “frequent episodes of defecation where he [was] running to the bathroom all the time.” Id. Dr. Kirkwood also documented that Petitioner “suffer[ed] from depression and [was] seeing a psychiatrist, and [PTSD] with generalized anxiety disorder as well.” Id. In addition, Petitioner stated that he had “Bell’s [p]alsy a few years ago and continue[d] to have some palsy on the left side of his face, 20 Unum defined residual disability as being “limited from performing the material and substantial duties of your regular occupation due to your sickness or injury; and . . . a 20% or more loss in weekly earnings due to that same sickness or injury.” Pet. Ex. 66 at 22-23. Material and substantial duties are those “normally required for the performance of your regular occupation; and cannot be reasonably omitted or modified.” Id. at 23. 18 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 19 of 39 especially affecting his eye.” Id. Petitioner’s other problems included benign thyroid nodules, hypertension, and “chronic pain syndrome.” Id. Physical examination revealed that Petitioner’s visual acuity was “20/25 in the right eye, 20/20 if the left eye, and 20/20 in both eyes with correction.” Pet. Ex. 14 at 3. His examination did not reveal any problems with hearing, understanding directions, gait, use of his iPhone, sitting, bending, or walking. Id. Petitioner did not use any assistive devices. Id. Examination of the head, eyes, ears, and nose was normal, although Petitioner was noted to have a palsy on the left side of his face. Id. Dr. Kirkwood’s impression was chronic back and neck pain, problems with defecation, depression/PTSD, generalized anxiety disorder, “[h]istory of Bell’s [p]alsy with a palsy on the left upper side of his face noted,” thyroid nodules, hypertension with elevated blood pressure, chronic pain syndrome, and chronic use of pain medications. Id. at 4-5. A medical opinion questionnaire describing Petitioner’s ability to perform activities was completed by Dr. Qureshi on July 21, 2018. Pet. Ex. 14 at 6-8. Dr. Qureshi rated Petitioner as fair in many activities, but in some, Petitioner was assessed as poor or none. Id. Dr. Qureshi added that Petitioner “has been very stressed due to his personal [and] medical health problems.” Id. at 8. G. Petitioner’s 2018 Letter to the Social Security Disability Administration Department Petitioner submitted his claim for Social Security Disability benefits with a letter dated March 21, 2018. Pet. Ex. 12 at 1. In his letter, Petitioner described that he had been without income “for the last two years due to multiple major health problems,” that included “chronic lower and upper back problem, major anxiety and depression, spasms and pain from Bell’s palsy, [] [and] pain and frequent bathroom use due to . . . surgery done in 2010.” Id. He explained that he had “stopped work[ing] in March of 2016 when [his] conditions worsened and couldn’t allow [him] to work without severe pain and suffering.” Id. In the letter, Petitioner also explained that he was raising his daughter (then age 4 years and 9 months) as a single parent, and that she had developmental issues requiring “occupational, feeding[,] and speech therapies.” Pet. Ex. 12 at 1. He had applied for Social Security Disability Benefits in 2017 and was awaiting a hearing. Id. He described his financial situation and the stress it was causing him. Id. He also recounted an admission to an emergency room on March 18, 2018, for “excruciating back and chest pain with severe spasms and extreme anxiety with [his] blood pressure [] to 180/122.” Id. H. Unfavorable Notice of Social Security Decision June 5, 201921 Petitioner first applied for Social Security Disability benefits on April 26, 2017, and his claim was denied on June 5, 2019. Pet. Ex. 39. The decision states that Petitioner alleged that 21 The undersigned has reviewed the entire decision but summarizes only the most relevant portions for the sake of brevity. The complete Social Security file is over 3000 pages. See Pet. Ex. 64. 19 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 20 of 39 his disability began on March 11, 2016. Id. at 4. His claim was initially denied on September 14, 2017 and again on reconsideration on December 1, 2017. Id. After a written request for hearing, an evidentiary hearing was held May 2, 2019, where medical experts testified. Id. Petitioner was represented by counsel. Id. After “careful consideration of all of the evidence,” Vincent Bennett, Administrative Law Judge, found that Petitioner (claimant) “ha[d] not been under a disability . . . from March 11, 2016, through the date of [the] decision.” Id. at 5. Regarding Bell’s palsy, Judge Bennett noted that in October 2014, Petitioner/claimant “was unable to close his left eye fully and there was a slight numbness to both cheeks. Otherwise, motor function in the face was normal. . . . He was diagnosed with Bell’s palsy and migraine headache.” Pet. Ex. 39 at 7. “In September 2015, the Bell’s palsy had resolved.” Id. He concluded that “[w]hile there was evidence of recurrent22 Bell’s palsy in August 2017, there was no evidence of any ongoing complications.” Id. The testimony of Dr. Albert Oguejiofor, an “impartial medical expert,” established that “there were no exertional limitations related to Bell’s palsy.” Pet. Ex. 39 at 8. “Based on a preponderance of the evidence, [] [Petitioner’s] claimant’s hypertension, Bell’s palsy, history of rectal surgery and migraine headaches [were] nonsevere. A medically determinable impairment is not severe if it is only ‘a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work irrespective of age, education, or work experience.’” Id. As for Petitioner’s mental health condition, Dr. Ashok Khushalani, a board-certified psychiatrist, and impartial medical expert, testified. Pet. Ex. 39 at 8. “Dr. Khushalani summarized the objective medical evidence, noting that [] [Petitioner] claimant had been diagnosed with [PTSD], depression, anxiety[,] and panic disorder. [] [H]e noted the record show[ed] consistent diagnoses of panic disorder and depression.” Id. Dr. Khushalani testified however, that “the medical record [did] not substantiate the diagnosis of [PTSD].” Id. Further, Petitioner’s/claimant’s “mental impairments” did not constitute “as least one extreme or two marked limitations in a broad area of functioning” so as to satisfy the required criteria to show that he was unable to work. Id. at 9. “In written statements, [] [Petitioner] claimant reported he was able to care for his young daughter, prepare simple meals, wash and iron, perform light household chores, grocery shop, drive, watch television[,] and use the computer.” Id. Additionally, “[i]n August 2017, [] [Petitioner] claimant expressed he read the news on the telephone and periodical[s] covering pharmaceuticals to preserve the knowledge and education he obtained as well as researching trading and other opportunities in the hope of learning a new skill.” Id. The records showed he “was able to provide information about his health, describe his work history, follow instructions from healthcare providers[,] and respond to questions from medical providers.”23 Id. 22 In August 2017, Petitioner underwent a medical examination for a Social Security Disability determination by Dr. Kirkwood, and he noted that Petitioner “continue[d] to have some palsy on the left side of his face,” and that it affected his eye. Pet. Ex. 14 at 2-5. 23 For additional evaluation of Petitioner/claimant’s mental health issues, see Pet. Ex. 39 at 9-10. 20 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 21 of 39 After “careful consideration of the entire record,” Judge Bennett found that Petitioner was able to “make decisions, attend and concentrate for extended periods, [and] accept instructions and respond appropriately to changes in routine work settings.” Pet. Ex. 39 at 10. Judge Bennett also described a psychological evaluation done August 14, 2017, wherein Petitioner/claimant exhibited “adequate remote memory, recent memory[,] and immediate memory. . . . He exhibited an adequate ability to make sound and responsive decisions. There was no evidence of impaired insight. Id. at 13. I. Partially Favorable Notice of Social Security Decision June 28, 2023 In this decision, Administrative Law Judge, Donald J. Wiley, found Petitioner/claimant disabled as of December 31, 2022, “the date last insured.” Pet. Ex. 62 at 7. Petitioner filed his second claim for disability benefits on July 16, 2020. Pet. Ex. 62 at 4. It was initially denied and denied again on reconsideration. Id. A hearing was held on May 15, 2023, and two medical experts testified. Id. Upon advice of counsel, Petitioner/claimant requested an amendment of his date of disability to January 31, 2020. Id. Regarding Petitioner’s allegations related to Bell’s palsy, Judge Wiley stated that “the record reveals that [] [Petitioner] claimant has a history of left facial palsy after receiving a hepatitis B vaccination in October 2014. As a result, he underwent changes in appearance and function of facial muscles.” Pet. Ex. 62 at 10. Petitioner reported in January 2023 “that the facial palsy, through symptoms such as head and neck pain as well as change in appearance, had impaired him to the point that he did not have any meaningful ability to function socially or occupationally.” Id. Judge Wiley concluded that “[n]evertheless, based upon the records, there [was] no indication of any long-lasting effects of the use of his mouth or opening/closing of the eyelids. His pain complaints [were] treated conservatively.” Id. As for Petitioner’s mental health issues, including allegations of anxiety, depression, and PTSD, Judge Wiley reviewed and summarized all relevant records, including records from 2020 through 2022, and evidence from the experts. Pet. Ex. 62 at 14-15. Judge Wiley concluded that “the intensity, persistence[,] and limiting effects of these symptoms [were] not entirely consistent with the medical evidence and other evidence in the record.” Id. at 15. Moreover, “[i]f an impairment can reasonably be controlled by medication or treatment, it cannot serve as a basis for a finding of disability.”24 Id. Petitioner “state[d] his primary issue [was] anxiety but he also attributed problems to the residuals of the Bell’s [p]alsy.” Pet. Ex. 62 at 16. Dr. Tariq indicated Petitioner “ha[d] a ‘permanent’ disability due to major depression and [PTSD]. In February 2023, Dr. Tari[q] 24 This regulation states that “[i]n order to get benefits, you must follow treatment prescribed by your medical source(s) if this treatment is expected to restore your ability to work. . . . If you do not follow the prescribed treatment without a good reason, we will not find you disabled or, if you are already receiving benefits, we will stop paying you benefits.” 20 CFR § 404.1530(a)- (b). Acceptable reasons for failure to follow prescribed treatment were also provided. See id. at § 404.1530(c). 21 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 22 of 39 assessed that [] [Petitioner] claimant had a marked impairment in social and occupational functioning and was not able to perform meaningful vocational duties in any capacity.” Id. However, Judge Wiley found this assessment “not supported by the objective evidence of record, especially Dr. Tari[q]’s progress notes.” Id. The records indicated Petitioner’s “mental symptoms [were] controlled with medication and psychotherapy” and he “interact[ed] daily with his family and [did] not allege any problems with interaction with family members.” Id. “He limit[ed] interactions with the public, primarily related to his disfigurement with Bell’s [p]alsy. Consequently, those opinions are not persuasive.” Id. However, because Petitioner was “an individual of advanced age” as of December 31, 2022, along with the opinions and findings of the vocational experts, and application of applicable rules, Judge Wiley concluded that Petitioner was “disabled” as of that date, but not before then. Pet. Ex. 62 at 22. J. Expert Reports and Medical Literature In the entitlement phase of litigation, the parties offered expert opinions as to causation. Petitioner retained Dr. Vera S. Byers as an expert in immunology. Dr. Byers did not offer any opinion relevant to the psychological impact of Bell’s palsy or the issue of lost wages. Petitioner’s other expert, Dr. Marcel Kinsbourne, set forth opinions briefly summarized below. Respondent’s experts, Dr. Subramaniam Sriram and Dr. Harry W. Schroeder, Jr., did not opine as to whether Petitioner’s Bell’s palsy impacted his ability to work.25 Dr. Kinsbourne opined that Petitioner’s hepatitis B vaccine caused his Bell’s palsy, and that his residual effects and psychological problems are sequelae of his injury. Pet. Ex. 16 at 6. Dr. Kinsbourne opined that the first manifestation of Petitioner’s Bell’s palsy was the left-sided postauricular headache that he experienced the day after vaccination. Id. at 4. The following day, Petitioner had “facial muscle weakness.” Id. While Petitioner’s palsy resolved, Dr. Kinsbourne explained that the long-term sequalae included abnormal movements of the left side of his face (“synkinesis”) and left eyelid closure with voluntary contraction of the left-sided facial muscles. Id. Synkinesis “is attributed to aberrant reinnervation of the facial muscles during recovery” from Bell’s palsy. Id. In his affidavit, Petitioner described the psychological distress that he had experienced due to his Bell’s palsy. See Pet. Ex. 15. Dr. Kinsbourne stated that the medical literature is replete with articles about “the psychological impact of facial palsies.” Pet. Ex. 16 at 5. He cited Baugh et al.,26 who noted that “patients with facial paralysis experience psychosocial dysfunction and diminished quality of life as a result of their appearance.” Id. at 6 (citing Pet. Ex. 43 at 21). 25 For a description of the experts’ opinions, see Ruling on Entitlement, at 6-18. 26 D.F. Baugh et al., Clinical Practice Guideline: Bell’s Palsy, 149 Otolaryngology Head & Neck Surgery S1 (2013). 22 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 23 of 39 Baugh et al. noted that while Bell’s palsy is usually “self-limited,” some patients may have “long-term poor outcomes” that “can be devastating to the patient.” Pet. Ex. 43 at 2. “Most patients with Bell’s palsy show some recovery without intervention within [two] to [three] weeks after onset of symptoms and completely recover within [three] to [four] months.” Id. at 3. Those who have “diminished facial movement and marked facial asymmetry, [and] . . . facial paralysis[,] can have impaired interpersonal relationships and may experience profound social distress, depression, and social alienation.” Id. at 3-4. There are many different procedures that can “normalize facial appearance.” Id. at 4. Fu et al.27 stated that even when the paralysis of Bell’s palsy resolves, patients who have disfigurement may have ongoing “social and psychological problems.” Pet. Ex. 18 at 5. These may include “greater levels of anxiety, depression, maladaptive behaviors, and reduced emotional well-being.” Id. at 1. Fu et al. studied 103 patients with facial palsy, using a questionnaire28 to self-report measures of psychological distress using the Hospital Anxiety Depression Scale (“HADS”)29 to assess anxiety and depression. Id. The severity of facial palsy was determined based on the House-Brackmann scale, which grades the degree of paralysis on a scale of one to six, with one being normal and six indicating complete paralysis. Id. at 3. “[A] significant proportion” of the patients experienced psychological distress due to their facial palsy. Id. at 4. About one-third had depression, with eleven assessed as moderately depressed. Id. at 3, 3 tbl.1. Also, about one-third had anxiety, with eleven having moderate anxiety. Id. at 3. The study did not examine the effect of Bell’s palsy, or its psychological distress, on the participants’ ability to work or any adverse effects on employment. See id. at 1-5. Dr. Kinsbourne opined that there can be social and psychological problems associated with Bell’s palsy. Pet. Ex. 16 at 3, 6. He opined that Petitioner had not been able to work due to his health issues and that “[h]is residual deficits and [] continuing psychological adversities are sequelae of the vaccine injury.” Id. 27 L. Fu et al., Psychological Distress in People with Disfigurement from Facial Palsy, 25 Eye 1322 (2011). 28 The questionnaire used was the Illness Perception Questionnaire-Revised (IPQ-R). Pet. Ex. 18 at 1. “The Illness Perception Questionnaire-Revised (IPQ-R) assesses patients’ beliefs about their condition and includes 14 items that assess symptoms (identity). There are eight subscales: identity, timeline, causes, consequences, personal control, treatment control, illness coherence (patient’s understanding of their illness), and emotional representation. The timeline dimension is further divided into an acute/chronic/cyclical subscale.” Id. at 2. 29 “The Hospital Anxiety and Depression Scale (HADS) consists of a 14-item scale (two seven- item subscales). The total score for each subscale ranges from 0 to 21. . . . The HADS has been well validated and is commonly used to screen patients with a medical illness. It excludes somatic symptoms of anxiety and depression, which may overlap with the physical illness.” Pet. Ex. 18 at 2. 23 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 24 of 39 V. PARTIES’ CONTENTIONS A. Petitioner’s Position Petitioner asserts that “[a]s a result of [his] Bell’s palsy, [he] developed an anxiety disorder and ultimately PTSD.” Pet. Memo. at 1. Petitioner “attempted to continue work, but his mental health issues became worse over time. Eventually, in March of 2016, because of his mental health issues, [Petitioner] was unable to safely continue to work as a pharmacist.” Id. at 1-2. Petitioner argues that his “loss of earning capacity is directly related to his vaccine injury,” and as such, he seeks compensation for lost wages. Id. at 2. In support of his argument, Petitioner provided a summary of his medical records, stating that after he was diagnosed with Bell’s palsy, he reported to his neurologist on January 5, 2015, that he was having panic attacks at night. Pet. Memo. at 3 (citing Pet. Ex. 3 at 7). Medication helped, “but made him drowsy.” Id. (citing Pet. Ex. 3 at 8). When he quit taking the medication, the nightmares returned. Id. (citing Pet. Ex. 3 at 8). Petitioner was referred to Dr. Qureshi, a psychiatrist. Id. (citing Pet. Ex. 3 at 8). At the initial visit with Dr. Qureshi on March 11, 2015, Petitioner reported his history of becoming anxious and depressed after he had Bell’s palsy. Id. at 2-3 (citing Pet. Ex. 6 at 4). He also recounted his problems with nightmares and flashbacks. Id. at 3 (citing Pet. Ex. 6 at 4). Petitioner also cites the opinion letters from Dr. Tariq in support of his claim for lost wages. Pet. Memo. at 3-4 (citing Pet. Ex. 57 at 1-2); see also Pet. Ex. 58 at 1-2. Petitioner was under Dr. Tariq’s care since 2021, and Dr. Tariq performed an evaluation in January 2023. Pet. Memo. at 3 (citing Pet. Ex. 57). In his opinion letter, Dr. Tariq noted that in March 2015, Petitioner presented with “progressively worsening symptoms of mood and anxiety” and “was diagnosed with Generalized Anxiety Disorder and Major Depressive Disorder.” Id. (quoting Pet. Ex. 57 at 1). Then in April 2017, Petitioner was diagnosed with PTSD. Id. (citing Pet. Ex. 57 at 1). Petitioner asserts that Dr. Tariq opined that Petitioner’s “mental health issues [were] directly related to his vaccine injury.’” Id. at 3-4 (quoting Pet. Ex. 57 at 2). Dr. Tariq stated, “it is my [] opinion that the facial palsy subsequent to [h]epatitis B vaccination in October of 2014 is the most important predisposing and precipitating factor in the etiology of [Petitioner’s] current psychiatric symptoms.” Id. at 4 (quoting Pet. Ex. 57 at 2). Further, Petitioner asserts that he “lost several weeks [of] work because of the initial physical challenges and pain” but that he “returned to work as soon as he was physically able as he was the sole financial provider for his family. He worked throughout 2015.” Pet. Memo. at 4 (citing Pet. Ex. 68 at 1). Over time, Petitioner found it became more difficult to “safely operate as a pharmacist.” Id. at 5 (citing Pet. Ex. 68 at 2). He “separated from his job on March 11, 2016,” and although “[h]e ha[d] been approached by pharmacies to come back to work, . . . he [could not] handle the stress and . . . do the work safely due to his concentration and memory issues.” Id. 24 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 25 of 39 Next, Petitioner cites the Social Security Disability decisions in support of an award for loss of wages. Pet. Memo. at 5-7. Petitioner first applied for benefits in 2017, and the decision issued June 5, 2019, “finding that [Petitioner] did not suffer from a disability as defined by the Social Security Act.” Id. at 5-6 (citing Pet. Ex. 39 at 18). Petitioner argues, however, that the Social Security Administrative Law Judge found that he was unable to work as a pharmacist due to anxiety and depression, due to his impaired “ability to deal with stressors, particularly people. Accordingly, the residual functional capacity limits the claimant to occasional contact with the general public to reflect this limitation.” Id. at 6-7 (quoting Pet. Ex. 39 at 16). Therefore, Petitioner notes the decision resulted in a determination that he was “unable to perform past relevant work as actually or generally performed,” but finding that he could perform other jobs such as “general office clerk” and “shipping clerk.” Id. at 7 (quoting Pet. Ex. 39 at 16-17). In 2020, Petitioner filed his second application for Social Security Disability benefits, claiming an onset of disability of January 31, 2020, on advice of counsel. Pet. Memo. at 7 (citing Pet. Ex. 62). A hearing was held in May 2023, and a decision issued on June 28, 2023, partially favorable to Petitioner. Id. at 8. The Administrative Law Judge found Petitioner disabled as of December 31, 2022, the date on which he was last insured. Id. (citing Pet. Ex. 62 at 7). As of December 31, 2022, Petitioner was 54 years and five months, and thus, he was found to be disabled by virtue of his “advanced age.” Id. at 9 (citing Pet. Ex. 62 at 1, 22). Based on the two decisions issued by the Social Security Administration, Petitioner argues that he “could not function as a pharmacist because of the anxiety produced by Bell’s palsy.” Pet. Memo. at 10. Petitioner also asserts that his “loss of employment as a pharmacist was directly linked to his Bell’s palsy.” Id. Even assuming that Petitioner could perform the jobs enumerated in the Social Security decisions (general office clerk, shipping checker, etc.), “[t]hese jobs pay significantly less than a pharmacist position.” Id. at 11. Petitioner agrees that the question here is “whether [Petitioner] has suffered an impairment in his earning capacity because of his vaccine-related injury[,] . . .Bell’s palsy, [and] its residual effects and complications.” Pet. Memo. at 9. He states that he must show that the injury, and its effects and complications, are “a substantial factor leading to the loss.” Id. (citing Shyface v. Sec’y Health & Hum. Servs., 165 F.3d 1344, 1352 (Fed. Cir. 1999) (“We adopt the Restatement rule for purposes of determining vaccine injury, that an action is the ‘legal cause’ of harm if that action is a ‘substantial factor’ in bringing about the harm, and that the harm would not have occurred but for the action.”). In his reply brief, Petitioner suggests that Respondent “might be attempting to present an apportionment argument.” Pet. Reply at 2. Petitioner states that the Federal Circuit has adopted the Restatement 2nd of Torts, citing Shyface, and quotes the pertinent provision.30 Id. (citing Shyface, 165 F.3d at 1352). Assuming that Respondent is arguing that Petitioner’s lost wages 30 Section 433A “Apportionment of Harm to Causes” in the Restatement states, “(1) Damages for harm are to be apportioned among two or more causes where (a) there are distinct harms, or (b) there is a reasonable basis for determining the contribution of each cause to a single harm. (2) Damages for any other harm cannot be apportioned among two or more causes.” 25 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 26 of 39 “might be apportioned between his proven vaccine injury and other, pre-existing conditions,” Petitioner states that it is “Respondent’s burden to prove such an apportionment.”31 Id. at 3. B. Respondent’s Position Respondent asserts “[i]t is [P]etitioner’s burden under Section 11(e) of the Vaccine Act to prove the damages he is seeking” and he “has failed to prove by preponderant evidence that he is entitled to an award of lost earnings for his Bell’s palsy injury.” Resp. Response at 3. Respondent noted a number of factors supporting his position. First, Respondent noted Petitioner did not return to see his neurologist for his Bell’s palsy after November 2021. Resp. Response at 3. Next, regarding the opinion letters from Dr. Tariq, Petitioner’s psychiatrist from 2021 to 2023, attributing the cause of Petitioner’s inability to work to his Bell’s palsy, Respondent suggests that “a more comprehensive review of the medical records reflects that [P]etitioner has . . . other health conditions and has attributed his other medical ailments to his alleged inability to work in the past.” Resp. Response at 4. For example, Respondent cites a letter written by Petitioner on March 21, 2018, to the Social Security Administration, stating that he suffered from “chronic lower and upper back problem[s], major anxiety and depression, spasms and pain from Bell’s palsy, [s]pasms, pain and frequent bathroom use due to colorectal Sphincter pressure despite . . . surgery done in 2010.” Id. (quoting Pet. Ex. 12 at 1). Petitioner reported back pain since 2004, and “used to be a pharmacist but [could not] work secondary to the pain. . . . [H]e also had some [gastrointestinal] issues and ha[d] a rectocele, which also cause[d] him a lot of anxiety.” Id. (quoting Pet. Ex. 48 at 1) (citing Pet. Ex. 49 at 3; Pet. Ex. 14 at 2). As for Petitioner’s Social Security Disability finding in favor of awarding benefits, Respondent states that it was not based on Petitioner’s Bell’s palsy but on Petitioner’s many medical conditions, including “degenerative disc disease . . . , hernia, Bell’s palsy, depression, and anxiety.” Resp. Response at 4 (citing Pet. Ex. 62 at 9). Moreover, Petitioner’s successful Social Security Disability Application alleges his date of disability was January 31, 2020, over 31 Section 433B “Burden of Proof” in the Restatement states, (1) Except as stated in Subsections (2) and (3), the burden of proof that the tortious conduct of the defendant has caused the harm to the plaintiff is upon the plaintiff. (2) Where the tortious conduct of two or more actors has combined to bring about harm to the plaintiff, and one or more of the actors seeks to limit his liability on the ground that the harm is capable of apportionment among them, the burden of proof as to the apportionment is upon each such actor. (3) Where the conduct of two or more actors is tortious, and it is proved that harm has been caused to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the burden is upon each such actor to prove that he has not caused the harm.” See also Walther v. Sec’y of Health & Hum. Servs., 485 F.3d 1146, 1151 (Fed. Cir. 2007) (“[F]or purposes of the causation analysis the petitioner is treated as the equivalent of the tort plaintiff and the government is treated as the equivalent of the tort defendant. . . . Thus, applying the Restatement to the Vaccine Act context, the petitioner generally has the burden on causation, but when there are multiple independent potential causes, the government has the burden to prove that the covered vaccine did not cause the harm.”). 26 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 27 of 39 five years after the vaccination at issue. Id. at 4-5. And the Social Security Administration found that Petitioner was not disabled until December 31, 2022, (at age 54 years and 5 months) and only then because he met the requirement of “advanced age.” Id. at 5, 5 n.5 (citing Pet. Ex. 62 at 4-5, 22-23; Pet. Memo. at 9). Specific to Bell’s palsy, Respondent notes the Social Security Administration found there was “no indication of any long-lasting effects of the use of his mouth or opening/closing of eyelids.” Resp. Response at 5 (quoting Pet. Ex. 62 at 10). Further, “there [was] no mention (medical evidence) [of Bell’s palsy] since January 2020 and [] no indication of any residuals from it.” Id. (quoting Pet. Ex. 62 at 12). An impartial medical expert who provided testimony at the disability hearing concluded “there [was] no diagnosis of a traumatic disorder in the treatment records.” Id. (quoting Pet. Ex. 62 at 11, 16). Respondent concludes that the Social Security Disability determination “is not dispositive on this proceeding and objectively, [P]etitioner has ailments other than Bell’s palsy that have interfered with his ability to work.” Id. VI. LEGAL FRAMEWORK Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” § 15(a)(4). Additionally, compensation shall also include [a]ctual unreimbursable expenses incurred from the date of the judgment awarding such expenses and reasonable projected unreimbursable expenses which (i) result from the vaccine-related injury for which the [P]etitioner seeks compensation, (ii) have been or will be incurred by or on behalf of the person who suffered such injury, and (iii)(I) have been or will be for diagnosis and medical or other remedial care determined to be reasonably necessary, or (II) have been or will be for rehabilitation, developmental evaluation, special education, vocational training and placement, case management services, counseling, emotional or behavioral therapy, residential and custodial care and service expenses, special equipment, related travel expenses, and facilities determined to be reasonably necessary. § 15(a)(1)(A). Relevant to lost wages, the Vaccine Act provides that “[i]n the case of any person who has sustained a vaccine-related injury after attaining the age of 18 and whose earning capacity is or has been impaired by reasons of such person’s vaccine-related injury for which compensation is to be awarded, compensation for actual and anticipated loss of earnings determined in accordance with generally recognized actuarial principles and projections.” § 15(a)(3)(A). Such calculations must be undertaken in a “cautious manner.” Brown v. Sec’y of Health & Hum. Servs., No. 00-0182V, 2005 WL 2659073, at *6 (Fed. Cl. Spec. Mstr. Sept. 21, 2005). 27 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 28 of 39 Petitioner bears the burden of proof, by preponderant evidence, with respect to each element of compensation requested. Brewer v. Sec’y Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996); see also § 13(a)(1)(A). Further, compensation for anticipated loss of earnings may not be based on speculation. J.T. v. Sec’y of Health & Hum. Servs., No. 12-618V, 2015 WL 5954352, at *7 (Fed. Cl. Spec. Mstr. Sept. 17, 2015) (noting § 15(a)(3)(A) “does not envision that ‘anticipated loss of earnings’ includes speculation”), mot. for rev. den’d, 125 Fed. Cl. 164 (2016). Failure to provide preponderant evidence to support a finding that a petitioner’s earning capacity has been impaired because of a vaccine injury or such a claim based on speculation without preponderant evidence will result in denial of a lost wage claim. See Dillenbeck v. Sec’y Health & Hum. Servs., No. 17-428V, 2019 WL 4072069, at *12-13 (Fed. Cl. Spec. Mstr. July 29, 2019), aff’d in part and remanded, 147 Fed. Cl. 131 (2020). Substantively, claims of past lost wages require examination of circumstances under which lost wages arose. Where a petitioner has been terminated from a position, weighing evidence for past lost wages considers whether a petitioner could have reasonably expected to continue work in the same manner and position but for the vaccine injury. See Dillenbeck, 2019 WL 4072069 at *10-11. Documentation through medical records, release to work documents from physicians, and the nature of the job are useful in this determination. See id. at *9-12. If a petitioner has returned to work after a vaccine injury, claims for lost wages arising from a differential in pay must be due to the vaccine injury, such as physical limitations requiring a change in type of work. See id. at *10-13. Claims of future lost wages require additional examination of the length of time a petitioner could be reasonably expected to work beyond the present day. Factors independent of and dependent on the petitioner should be considered in the particulars of the situation. In Dillenbeck, changes in licensing law, petitioner’s performance reviews prior to the vaccine injury, and petitioner’s actual ability to secure a similar position contributed to the determination of whether a petitioner could have maintained a position into the future indefinitely. See Dillenbeck, 2019 WL 4072069 at *12 (denying future lost wages based on petitioner’s lack of license required by a change in law for her past position, several negative performance reviews in her past position, and displayed ability to work and secure similar paying positions after her vaccine injury). Evidence to support claims of past and future lost wages includes documentation of wages affected by the vaccine injury such as income, tax, or benefit documents. Documentation of unpaid time, leave, or reductions in salary are expected in establishing a claim of lost wages. See, e.g., Bruegging v. Sec’y Health & Hum. Servs., No. 17-0261V, 2019 WL 2620957, at *10 (Fed. Cl. Spec. Mstr. May 13, 2019); Dillenbeck, 2019 WL 4072069 at *110-13. Furthermore, speculation around planned future endeavors should not be used in determining a petitioner’s claim of future lost wages. J.T., 2015 WL 5954352, at *7, *10-12 (denying speculative future lost wages based on petitioner’s claim that his vaccine injury prevented him from starting a new professional endeavor he planned to undertake). This informs the notion that determinations for lost wages must be based on the general work life expectancy of an uninjured individual, not the petitioner’s expectancy. Brewer, 1996 WL 147722, at *25 28 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 29 of 39 (citing Edgar v. Sec’y Health & Hum. Servs., 989 F.2d 473 (Fed. Cir. 1993)). Basing claims of future wages on a petitioner’s own expectancies that differ from the generally accepted work life expectancy of an individual would likely be speculative, and not calculated in a “cautious manner.” Brown, 2005 WL 2659073, at *6. VII. ANALYSIS Petitioner seeks an award for loss of earnings from the onset of his Bell’s palsy to present. While the undersigned finds there is not preponderant evidence to support such an award, there is preponderant evidence of lost wages for a brief period after the onset of Petitioner’s vaccine related condition. A. Petitioner Is Entitled to Compensation for Loss of Earnings from October 6, 2014 to October 17, 2014 The undersigned finds that Petitioner has proven by preponderant evidence that his Bell’s palsy resulted in his inability to work from October 632 until October 17, 2014. This finding is based on the contemporaneous medical records by Petitioner’s neurologist, Dr. Mukardamwala. The contemporaneous records show that Petitioner received the vaccination at issue on October 2, 2014. On October 4, he was unable to close his left eye and had left-sided facial numbness. He was diagnosed with Bell’s palsy. Upon request, Dr. Mukardamwala signed Petitioner’s leave from work form. On October 17, Petitioner returned to see Dr. Mukardamwala, who noted that Petitioner was gradually improving. Dr. Mukardamwala’s assessment included anxiety. Dr. Mukardamwala told Petitioner that his symptoms were improving, and Petitioner was instructed that “he may return to work.” Pet. Ex. 3 at 4. It is reasonable to interpret Dr. Mukardamwala’s records summarized above to show that Petitioner’s ability to work as a pharmacist was impaired during his acute symptoms of Bell’s palsy. On October 17, however, Dr. Mukardamwala found that Petitioner was improved and could return to work. Dr. Mukardamwala also assessed Petitioner with anxiety on that date. However, it is reasonable to find that Dr. Mukardamwala’s diagnosis of anxiety did not impair Petitioner’s ability to work, since he instructed Petitioner that he could return to work. There is no evidence from any other contemporaneous health care provider during this time frame documenting that Petitioner was unable to work due to his Bell’s palsy, or his anxiety, panic attacks, or PTSD. Petitioner’s treating neurologist assessed Petitioner’s condition and specifically opined that Petitioner was gradually improving and that he could return to work on October 17, 2014. There is no other contemporaneous evidence cited by Petitioner, or included in Petitioner’s contemporaneous records, to show that any health care provider opined that Petitioner was not able to work after October 17, 2014. 32 Although he was experiencing the acute symptoms of Bell’s palsy, Petitioner worked on October 4, 2014 and October 5, 2014. See Pet. Ex. 15 at ¶¶ 2-3. Therefore, the undersigned uses the date of October 6 as the beginning date that he was unable to work. 29 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 30 of 39 Medical records, specifically contemporaneous medical records, are presumed to be accurate and generally “warrant consideration as trustworthy evidence.” Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993). Greater weight is typically given to contemporaneous records. Vergara v. Sec’y of Health & Hum. Servs., No. 08-882V, 2014 WL 2795491, at *4 (Fed. Cl. Spec. Mstr. May 15, 2014) (“Special Masters frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in later medical histories, affidavits, or trial testimony.”). The weight afforded to contemporaneous records is due to the fact that they “contain information supplied to or by health professionals to facilitate diagnosis and treatment of medical conditions. With proper treatment hanging in the balance, accuracy has an extra premium.” Cucuras, 993 F.2d at 1528. The undersigned notes that her finding of Petitioner’s impaired ability to work is shorter than the time frame of disability found by Petitioner’s short term disability carrier, Unum. On October 7, 2014, Petitioner filed a claim with Unum. His last day of work was October 5, and benefits were approved through November 14, 2014. After that, the claim was “closed because there was no support for restrictions and limitations beyond that date.” Pet. Ex. 66 at 21. Unum’s records show that Dr. Mukardamwala documented that Petitioner’s Bell’s palsy was improved by November 4, 2014. And Unum noted that Petitioner’s chiropractor documented that on November 14, 2014, Petitioner’s Bell’s palsy was improved by 50%. Unum concluded that the records did not support “restrictions and limitations due to Bell’s palsy and neck pain” that prevented Petitioner from “performing [his] regular occupation on a full time basis” after November 14, 2014. Pet. Ex. 66 at 22. The reasons for Unum’s decision to extended benefits beyond October 17 to November 14, 2014 are not known. Regardless, the undersigned is not bound by Unum’s findings. See Hanlon v. Sec’y of Health & Hum. Servs., 40 Fed. Cl. 625, 630 (1998), aff’d, 191 F.3d 1344 (Fed. Cir. 1999). Moreover, the undersigned finds the contemporaneous medical records of Dr. Mukardamwala to be more persuasive than the conclusions reached by Unum. Dr. Mukardamwala was Petitioner’s treating neurologist, who examined and evaluated Petitioner, and who had specialized knowledge in treating patients with Bell’s palsy and its residual effects. Further, Dr. Mukardamwala evaluated Petitioner and specifically found that Petitioner could return to work on October 17, 2014. B. Petitioner Has Not Shown by Preponderant Evidence That His Bell’s Palsy or Any Residual Effects Resulted in an Inability to Work After October 17, 2014 As described above, Dr. Mukardamwala found that Petitioner could return to work on October 17, 2014. Petitioner next saw Dr. Mukardamwala November 4, 2014. At that visit, Petitioner reported that since receiving a nerve block at the prior visit, “his pain [was] better.” Pet. Ex. 3 at 6. He also reported improvement in his other symptoms. Physical examination confirmed improvement. There is no indication in the note on November 4, 2014 that Petitioner was unable to work as a pharmacist. 30 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 31 of 39 Petitioner returned to see Dr. Mukardamwala on January 5, 2015. At that visit, he reported that he began having panic attacks before his last visit (November 4, 2014). He also reported being anxious, depressed, and angry. Dr. Mukardamwala’s assessment was “[l]eft Bell’s palsy,” “[p]ossible anxiety/panic attacks,” “[i]nsomnia,” and “[n]ightmares - ? [p]arasomnia.” Pet. Ex. 3 at 7. However, Dr. Mukardamwala did not opine or state that Petitioner’s anxiety/panic episodes, insomnia, depression, or anxiety were caused by Petitioner’s Bell’s palsy, or that these conditions were secondary to Bell’s palsy, or residual effects of Bell’s palsy. Even assuming that Petitioner’s anxiety/panic episodes, insomnia, depression, and anxiety were the sequelae of his Bell’s palsy, Dr. Mukardamwala did not suggest that Petitioner was unable to work due to these problems. At the visit on January 5, 2015, Petitioner told Dr. Mukardamwala that he had not yet returned to work, but that he wanted to “go back to work with shorter shifts.” Pet. Ex. 3 at 7. Dr. Mukardamwala provided the requisite paperwork so that Petitioner could work eight-hour shifts, as opposed to longer shifts.33 The record from this visit evidences Petitioner’s desire to return to work. There is no indication from the record that either Dr. Mukardamwala or Petitioner thought Petitioner could not or should not return to work, or work full-time, because of his Bell’s palsy or because of any mental health or other condition. Dr. Mukardamwala did not impose any restrictions or limitations on Petitioner’s employment, other than he work no longer than eight hours per shift. And Petitioner does not argue that an eight-hour shift limited his ability to work full-time. Petitioner returned to work on January 11, 2015. And he worked throughout all of 2015, and until March 2016 when he was terminated. There is no medical record, doctor’s note, or other contemporaneous record placing any limitations or restrictions on Petitioner’s ability to work, other than the shift limit of eight hours by Dr. Mukardamwala on January 5, 2015. On referral from Dr. Mukardamwala, Petitioner saw Dr. Qureshi, a psychiatrist, in March 2015. Dr. Qureshi’s note describes Petitioner’s anxiety, depression, nightmares, and sleep disturbances. Medication was prescribed to treat these conditions. There is no documentation to suggest that Petitioner thought he was unable to work. And Dr. Qureshi did not opine that Petitioner was unable to work or place any limitations or restrictions on his employment. Dr. Qureshi saw Petitioner several times in 2015, and notes from each of the visits describe Petitioner’s mental health conditions. But again, there is no documented concern about Petitioner’s ability to work or other evidence to suggest that Petitioner’s mental health conditions impaired or limited his ability to work as a pharmacist. Based on the contemporaneous evidence related to Petitioner’s employment, his medical records, including the records of his treating neurologist and psychiatrist, the undersigned finds that Petitioner has failed to prove by preponderant evidence that he was unable to work after the 33 CVS employment records show that there were months from 2004 forward where Petitioner’s hours were variable. Pet. Ex. 63 at 10-68. Prior to his vaccination, the length of his shifts is not clear. 31 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 32 of 39 date that he was released to work by Dr. Mukardamwala on October 17, 2014, and from that day forward in 2014, and throughout all of 2015. After October 5, 2014, Petitioner did not return to work until January 11, 2015. However, for all of the reasons described above, the undersigned finds that there is no evidence to support a finding that he was unable to work from October 17, 2014, until he did return on January 11, 2015. The undersigned also finds that Petitioner’s Bell’s palsy and any residual effects of that condition did not prevent Petitioner from working in his professional capacity as a pharmacist in 2015. The records show that he did work as a pharmacist throughout all of 2015. And there is no contemporaneous evidence from his treating physicians in 2015 to show or suggest that Petitioner was unable to work or had any limitations or restrictions laced on his employment as a pharmacist. Moving to 2016, Petitioner’s employment records show that on March 12, 2016, he was terminated for taking leave that was not approved. Prior to termination, Petitioner had a pattern of taking leave for health reasons without first obtaining approval, resulting in suspensions. This occurred on May 21, 2013, May 6, 2014, October 6, 2014, and March 11, 2016, the last of which resulted in his termination. Petitioner’s employment file does not include any documentation that would suggest he was terminated for medical or mental health reasons or because he was not able to perform his duties and responsibilities as a pharmacist. Moreover, Petitioner saw Dr. Qureshi twice in 2016. On January 13, 2016, Petitioner reported feeling less anxious and depressed. There is no mention of any problems or concerns related to Petitioner’s employment. At his next visit, on April 13, 2016, Petitioner reported that he was “doing fine.” Pet. Ex. 8 at 8. He was “undergoing [a] jury trial for divorce,” “stressed out financially[,] and [was] also taking care of his [two] year old daughter.” Id. He was “angry and frustrated at his wife” who “initially ran away with his daughter. Id. However, his medications were working well. There is no mention that he had been terminated from his job. Petitioner did not return to see Dr. Qureshi, or anyone else at the practice for the remainder of 2016. There is no contemporaneous evidence from 2016 establishing that Petitioner was unable to work as a pharmacist in 2016 due to his Bell’s palsy, or his mental health conditions of anxiety, depression, panic attacks, nightmares, PTSD, or for any other reason. Therefore, the undersigned finds that Petitioner has failed to prove by preponderant evidence that he was unable to work in 2016 due to his Bell’s palsy or mental health conditions. The undersigned also finds that the evidence shows that Petitioner’s job was terminated due to his failure to obtain approval for leave, and not due to his Bell’s palsy or any residual effects of his Bell’s palsy. Petitioner’s Bell’s palsy occurred in October 2014. His condition significantly improved over the course of the first year following his illness. He worked most of 2015, and part of 2016. He was terminated due to failure to obtain approval for leave, and not due to Bell’s palsy, any residual effect of Bell’s palsy, or any mental health conditions. He was under the care and treatment of a psychiatrist who provided regular evaluations and whose records do not document 32 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 33 of 39 any concerns about his ability to work as a pharmacist. For these reasons, the undersigned finds that Petitioner has failed to provide preponderant evidence that he was unable to work in his capacity as a pharmacist in 2016. Over time, it becomes increasingly difficult to associate Petitioner’s Bell’s palsy, and its sequalae, and Petitioner’s mental health conditions, with his alleged inability to work as a pharmacist, especially given the difficult circumstances Petitioner faced in 2016, including going through a divorce, custody proceedings, and caring for a young daughter as a single parent. Claims for past lost wages require examination of the circumstances under which the lost wages arose. When a petitioner has been terminated from employment, weighing evidence of past lost wages includes an evaluation of documents from medical records and employment records to discern whether a petitioner could have reasonably expected to work in the same manner and position but for the vaccine injury. See Dillenbeck, 2019 WL 4072069, at *10-13. Here, a thorough evaluation of the evidence establishes that Petitioner was released to return to work less than two weeks after his vaccine injury. After that, he returned to work. He was seen and treated regularly for his behavioral health issues and there is no suggestion that he was unable to work due to his Bell’s palsy, or his behavioral health. C. Evidence Created Later-in-Time Does Not Provide Persuasive Support for Petitioner’s Claim of Lost Wages In addition to contemporaneous records, Petitioner filed documents created later-in-time to support his claim for lost wages. These include Petitioner’s medical records from 2017 to 2023. Petitioner’s medical records show that he continued to see his psychiatrist for his mental health conditions, for follow-up evaluations, and medication adjustments. The records include a few references to his prior episode to Bell’s palsy; generally, these are statements made by Petitioner attributing his anxiety and other behavioral health conditions to his Bell’s palsy. But there are no statements or opinions by Petitioner’s treating health care providers suggesting that Petitioner was unable to work due to his Bell’s palsy or his mental health conditions. These later records also show that Petitioner had ongoing and significant medical problems related to back pain, requiring treatment by pain management, and bowel urgency due to his prior rectal fistula and related surgery. Petitioner also struggled as a single parent to care for his young daughter, and he had a difficult time during the Covid pandemic, especially since his daughter was at home and attended school at home in a remote classroom setting. Overall, the later-in-time medical records establish that Petitioner experienced many challenges and difficult circumstances from 2017 to 2023. The later records also include a remote telemedicine evaluation of Petitioner by Dr. Tariq on January 13, 2023 with a chief complaint of “legal evaluation.” Pet. Ex. 59 at 2 (emphasis omitted). The purpose of the visit was for Dr. Tariq to perform a “legal evaluation” of Petitioner’s current mental status. Id. (emphasis omitted). The evaluation was done “in the context of [Petitioner’s] lawyers wanting to talk to supervising provider about patient’s current mental status.” Id. During the evaluation, Petitioner reported that his anxiety and other mental health problems were caused by his episode of Bell’s palsy in 2014. Id. Dr. Tariq opined as to 33 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 34 of 39 Petitioner’s diagnoses, which included depression, anxiety, and PTSD. Id. at 3. In the medical records documenting the evaluation, Dr. Tariq did not offer an opinion about whether Petitioner’s Bell’s palsy or its sequelae affected Petitioner’s ability to work as a pharmacist. See id. at 2-4. Dr. Tariq also did not opine that more likely than not Petitioner’s mental health conditions were the result of his Bell’s palsy. See id. Separate from the medical records, Petitioner filed two opinion letters (both dated February 2, 2023) from Dr. Tariq about the evaluation he performed on January 13, 2023. In the first letter, Dr. Tariq opined that Petitioner’s vaccination and his subsequent Bell’s palsy was “the most important predisposing and precipitating factor in the etiology” of Petitioner’s psychiatric symptoms. Pet. Ex. 57 at 2. In the second letter, Dr. Tariq opined that at Petitioner’s “current level of function[,] it was not possible for [him] to safely and adequately perform work duties as a [p]harmacist” or any “meaningful vocational duties in any capacity.” Pet. Ex. 58 at 2. The undersigned does not find Dr. Tariq’s 2023 opinions to be persuasive for several reasons. First, the opinions of Dr. Tariq in January and February 2023 relate to Petitioner’s “current mental status” which necessarily is over eight years after his episode of Bell’s palsy. During that eight-year period, Petitioner went back to work for over one year, was terminated by CVS, was involved in custody and divorce proceedings, obtained custody of his young daughter, began taking care of his young daughter as a single parent, had progressive back pain requiring pain management treatment, had significant rectal sphincter problems, and experienced other health problems. The passage of time, as well as these life events, likely impacted Petitioner’s mental and physical well-being. Therefore, Dr. Tariq’s opinions based on Petitioner’s current condition in 2023 are not relevant to the question of Petitioner’s ability to work after his episode of Bell’s palsy and its sequalae with an onset in October 2014. Further, although Dr. Tariq may have been Petitioner’s physician beginning in 2021, he did not have any personal knowledge or information about Petitioner prior to that time. Moreover, it is not clear that Dr. Tariq personally evaluated or examined Petitioner in 2021 and 2022. For example, on August 13, 2021, Petitioner was seen by Jayma Mickler, PAC. Although Dr. Tariq signed off as the supervising physician, it is not clear that he saw Petitioner. See Pet. Ex. 46 at 67-68. On November 9, 2021, Petitioner was seen by a different provider, and a different physician signed off as the supervising physician. See id. at 69-71. In 2022, Petitioner saw Jayma Mickler, PAC, four times, and Dr. Tariq signed off each visit, but again, it is not known whether Dr. Tariq ever saw Petitioner at these visits. See Pet. Ex. 55 at 2-14. The only time that the records show that Dr. Tariq personally evaluated Petitioner was the remote telemedicine interview in January 2023. See Pet. Ex. 57 at 1-2; Pet. Ex. 58 at 1-2; Pet. Ex. 59 at 2-4. Another problem with Dr. Tariq’s opinion letters is that they are inconsistent with his own medical records. None of Petitioner’s records from Dr. Tariq’s office in 2021 through 2022 document concerns about Petitioner’s ability to work. Even in Dr. Tariq’s medical record dated January 13, 2023, there is no assessment, evaluation, or reference to Petitioner’s employment or inability to work. The medical record history does include Petitioner’s report that “the facial palsy, through the symptoms it caused [] including head and neck pain, change in appearance etc. has impaired him to the point that he has no meaningful ability to function socially or 34 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 35 of 39 occupationally.” Pet. Ex. 59 at 2. However, Dr. Tariq does not state any opinion about whether Petitioner could work. And Dr. Tariq’s mental examination revealed that Petitioner’s thought process was “[l]ogical and linear,” his short- and long-term memory were normal, his attention span was normal, and insight and judgment were fair. Id. at 3. Dr. Tariq’s opinions are also conclusory. He did not document physical or mental examination findings, diagnostic or testing results, or other data to support a conclusion that Petitioner was not able to work. Dr. Tariq did conduct an evaluation of Petitioner’s depression, but he did not opine that Petitioner’s depression prevented him from being employed. Special masters consistently reject “conclusory expert statements that are not themselves backed up with reliable scientific support.” Kreizenbeck v. Sec’y of Health & Hum. Servs., No. 08-209V, 2018 WL 3679843, at *31 (Fed. Cl. Spec. Mstr. June 22, 2018), mot. for rev. den’d, decision aff’d, 141 Fed. Cl. 138 (2018), aff’d, 945 F.3d 1362 (Fed. Cir. 2020). Moreover, Dr. Tariq’s opinion letters do not acknowledge the facts and circumstances of Petitioner’s life over the prior eight years. Dr. Tariq did not review employment records. He did acknowledge that Petitioner had been terminated from employment for failing to obtain approval for leave. He did not document or take into consideration that Petitioner had returned to work after his Bell’s palsy episode. He did not address the difficult circumstances of going through custody and divorce proceedings or being the single parent of a young daughter. He did not reference Petitioner’s chronic back pain, necessitating pain management. He did not address Petitioner’s other health problems, such as his issues with bowel urgency due to rectal sphincter problems. And he did not consider how difficult the Covid pandemic was for Petitioner. Generally, treating physician statements are typically “favored” as treating physicians “are likely to be in the best position to determine whether a ‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.’” Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006) (quoting Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005)). However, no treating physician’s views bind the special master, per se; rather, their views are carefully considered and evaluated. § 13(b)(1); Snyder, 88 Fed. Cl. at 746 n.67. “As with expert testimony offered to establish a theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their suppositions or bases.” Welch v. Sec’y of Health & Hum. Servs., No. 18-494V, 2019 WL 3494360, at *8 (Fed. Cl. Spec. Mstr. July 2, 2019). An opinion by a treating physician that is not supported by a factual basis or other evidence is conclusory in nature. See Robertson v. Sec’y of Health & Hum. Servs., No. 18-554V, 2022 WL 17484980, at *17 (Fed. Cl. Spec. Mstr. Dec. 7, 2022); Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1347 (Fed. Cir. 2010). Additionally, Dr. Tariq’s opinions are less persuasive as they were not made contemporaneously and were prepared for the purposes of litigation. See Zumwalt v. Sec’y of Health & Hum. Servs., No. 16-994V, 2019 WL 1953739, at *19 (Fed. Cl. Spec. Mstr. Mar. 21, 2019) (rejecting opinion from a treating provider when he presented an opinion two-and-one-half years after treatment and after litigation was initiated), mot. for rev. den’d, 146 Fed. Cl. 525 (2019); Vergara, 2014 WL 2795491, at *4 (“Special Masters frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in later medical histories, 35 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 36 of 39 affidavits, or trial testimony.”); Campbell ex rel. Campbell v. Sec’y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“It is, of course, true that where later testimony conflicts with earlier contemporaneous documents, courts generally give the contemporaneous documentation more weight.”); Ricci v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 385, 391 (2011) (“Medical records from years later, merely chronicling a timeline between vaccination and injury, are not worthy of the same consideration as contemporaneous records.”). Regarding Petitioner’s affidavits and declarations, particularly those statements related to his claim for lost wages, the undersigned generally finds these express Petitioner’s view of his circumstances. Some of Petitioner’s statements, however, are inconsistent with contemporaneous records, which diminishes their persuasive value. For example, in his initial affidavit executed in 2017, Petitioner averred that in the three years prior to vaccination on October 2, 2014, he was in “good health and [] had not needed to see a health care provider.” Pet. Ex. 9 at ¶ 4. However, his employment records show that Petitioner took a two-month leave of absence for health reasons from May to July 2013, and another two months leave of absence for health reasons from May to July 2014. Because Petitioner’s affidavits and declarations are inconsistent with and contradicted by the contemporaneous medical records, it is reasonable to give greater weight to the contemporaneous medical records. See Cucuras, 993 F.2d at 1528 (noting that “the Supreme Court counsels that oral testimony in conflict with contemporaneous documentary evidence deserves little weight”); Doe/70 v. Sec’y of Health & Hum. Servs., 95 Fed. Cl. 598, 608 (2010); Stevens v. Sec’y of Health & Hum. Servs., No. 90-221V, 1990 WL 608693, at *3 (Cl. Ct. Spec. Mstr. Dec. 21, 1990) (noting that “clear, cogent, and consistent testimony can overcome such missing or contradictory medical records”); Vergara, 2014 WL 2795491, at *4 (“Special Masters frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in later medical histories, affidavits, or trial testimony.”). This finding also extends to the lay witness affidavits and testimony. Other special masters have been faced with similar situations and found the contemporaneous medical records more persuasive than the affidavits and testimonies of lay witnesses. See, e.g., Rote v. Sec’y of Health & Hum. Servs., No. 90- 036V, 1992 WL 165970, *5 (Cl. Ct. Spec. Mstr. July 1, 1992) (finding the lay witness testimony insufficient to overcome the weight of the contemporaneous medical records); Bergman v. Sec’y of Health & Hum. Servs., No. 90-1252V, 1992 WL 78671, *4 (Cl. Ct. Spec. Mstr. Mar. 31, 1992) (same); Daiza v. Sec’y of Health & Hum. Servs., No. 90-1188V, 1992 WL 59709, *4 (Cl. Ct. Spec. Mstr. Mar. 5, 1992) (same). The undersigned finds that Petitioner’s affidavit stating that he was in good health for the three years prior to his vaccination is inconsistent with his employment records which show that in both 2013 and 2014 (prior to vaccination), he took significant leave from employment for health reasons. Further, Petitioner’s employment records evidencing the fact that Petitioner took leave for medical reasons in both 2013 and 2014 calls into question Petitioner’s baseline health and mental health condition prior to vaccination. While there is no suggestion that Petitioner had Bell’s palsy prior to vaccination in any of his medical records, these extended leaves call into question the medical/mental health conditions which necessitated leave. They also call into 36 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 37 of 39 question whether Petitioner filed his complete pre-vaccination medical/mental health care records. Lastly, Petitioner filed his relevant Social Security Administrative Disability Applications, filings, and decisions issued in 2019 and 2023. Both decisions were issued later in time than Petitioner’s episode of Bell’s palsy. As such, the findings and rulings issued in them do not reflect the events of 2014 or 2015, or speak to Petitioner’s ability to work before, during, or after his Bell’s palsy. See, e.g., Vergara, 2014 WL 2795491, at *4 (“Special Masters frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in later medical histories, affidavits, or trial testimony.”). Further, the Social Security decisions issued in 2019 and 2023 are not binding on the undersigned. Reinhardt v. Sec’y of Health & Hum. Servs., No. 17-1257V, 2022 WL 2303801, at *4, *7 (Fed. Cl. Spec. Mstr. Apr. 20, 2022) (“[D]ecisions of Social Security Administrative Law Judges are not binding on the special masters or judges of this federal court.”). Nor is a “Social Security determination that [a petitioner] is disabled . . . binding on the undersigned.” Perrin v. Sec’y of Health & Hum. Servs., No. 99-562V, 2004 WL 2830169, at *2 (Fed. Cl. Spec. Mstr. Nov. 22, 2004) (citing Tester Corp. v. U.S., 1 Cl. Ct. 370, 374-75 (1982) (“[I]t is a well settled principle that while administrative Board decisions concerning legal interpretations may be given some weight, they are clearly not binding on this court.”)). Although these decisions are not binding on the undersigned, they have been reviewed. In the 2019 decision, Judge Bennett denied Petitioner’s application for disability benefits. Relevant to Bell’s palsy, Judge Bennett noted that in October 2014, after his episode of Bell’s palsy, Petitioner was unable to close his left eye fully, had numbness in his cheeks, but that otherwise, the motor function of his face was normal. Judge Bennett found that by September 2015, Petitioner’s Bell’s palsy had resolved. Judge Bennett also wrote that “there was evidence of recurrent Bell’s palsy in August 2017,”34 but “no evidence of any ongoing complications.” Pet. Ex. 39 at 7. During the Social Security hearing preceding the 2019 decision, Dr. Oguejiofor, an impartial medical expert, testified that Petitioner had “no exertional limitations related to Bell’s palsy.” Pet. Ex. 39 at 8. He also opined that Petitioner’s Bell’s palsy was not severe, and therefore it was not a “medically determinable impairment” that would be “expected to interfere with the individual’s ability to work.” Id. Dr. Khushalani, a board-certified psychiatrist and impartial medical expert, opined that Petitioner’s “mental impairments” did not satisfy the required criteria to show that he was unable to work. Id. at 9. Petitioner argues that Judge Bennett found that he was unable to work as a pharmacist due to anxiety and depression, causing his impaired “ability to deal with stressors, particularly people.” Pet. Memo. at 6-7 (quoting Pet. Ex. 39 at 16). Petitioner specifically relies on 34 Petitioner has not filed any medical records in this case that show that he had a recurrence of his Bell’s palsy in 2017. It is not clear whether he was relying on Dr. Kirkwood’s note that Petitioner “continue[d] to have some palsy on the left side of his face,” and that it affected his eye. Pet. Ex. 14 at 2. However, Dr. Kirkwood did not classify this as a recurrence. 37 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 38 of 39 vocational testing that resulted in a determination that he was “unable to perform past relevant work as actually or generally performed,” but finding that he could perform other jobs (general office, shipping clerk, etc.). Id. at 7 (quoting Pet. Ex. 39 at 16). This finding, according to Petitioner, supports a claim for the difference in what Petitioner could earn in those types of jobs as compared with his wages as a pharmacist. The undersigned disagrees with Petitioner’s interpretation. The 2019 decision found Petitioner had severe impairments including “degenerative disc disease of the lumbar spine[] [and] depression and anxiety.” Pet. Ex. 39 at 7. However, the decision did not find that Petitioner’s depression and anxiety were caused by his 2014 episode of Bell’s palsy, or that his mental health alone resulted in his inability to perform past relevant work. More importantly, the objective of the finding was not to determine whether Petitioner could work as a pharmacist after his Bell’s palsy episode in 2014, or his behavioral health issues that arose in late 2014 and 2015. And the decision specifically did not take into consideration the fact that Petitioner worked for over a year (January 2015 to March 2016) after his Bell’s palsy episode, and after the onset of mental health conditions, or that he was able to work as a pharmacist while receiving medical and mental health treatment. Thus, the undersigned finds that any findings or rulings issued in the 2019 decision related to Petitioner’s behavioral health issues which impacted his ability to work as a pharmacist are not applicable here. The same problems apply to the Social Security decision issued in 2023, finding that Petitioner was disabled effective December 31, 2022. A finding of disability in 2022, eight years after Petitioner’s Bell’s palsy episode is too far removed from the relevant facts and circumstances, especially considering all the changes that occurred over that time frame in Petitioner’s life which impacted his medical and mental health and well-being, as well as his ability to be employed as a pharmacist. Lastly, in the entitlement phase of this case, Petitioner filed expert reports as to causation. The report by Dr. Kinsbourne touches on the issue of the residual effects of Petitioner’s Bell’s palsy. Dr. Kinsbourne cited several medical articles which shows that Bell’s palsy can lead to psychological dysfunction, which can dimmish quality of life, impair interpersonal relationships, and lead to depression and anxiety. However, Dr. Kinsbourne’s opinion that Petitioner was unable to work is not persuasive for the same reasons as Dr. Tariq’s opinions. Dr. Kinsbourne’s opinion is inconsistent with the records of Petitioner’s contemporaneous treating physicians and it does not account for the facts, including the fact that Petitioner did return to work and worked for over a year before his termination. It is also conclusory. Like Dr. Tariq, Dr. Kinsbourne offered no physical or mental examination findings, diagnostic or testing results, or other data to support a conclusion that Petitioner was not able to work. Special masters consistently reject “conclusory expert statements that are not themselves backed up with reliable scientific support.” Kreizenbeck, 2018 WL 3679843, at *31. The undersigned does find, based on the contemporaneous medical records, Dr. Kinsbourne’s expert opinion and the medical literature filed, which discussed the potential for patients with Bell’s palsy to experience psychological dysfunction, including depression and anxiety, that these conditions can be considered in awarding compensation for Petitioner’s pain and suffering and emotional distress. However, Petitioner has not proved by preponderant 38 Case 1:17-vv-00243-UNJ Document 192 Filed 09/05/24 Page 39 of 39 evidence that his Bell’s palsy, or its residual effects, impaired his ability to work as a pharmacist after October 17, 2014. VIII. CONCLUSION For all the reasons discussed above, the undersigned finds that Petitioner is entitled to past lost wages from October 6 through October 17, 2014. Petitioner is not entitled to any other past or future loss of earnings. The undersigned notes that this Ruling contains considerable discussion of Petitioner’s mental health conditions. Due to the nature of this information, Petitioner is encouraged to consider filing a motion to redact the case caption to his initials.35 Petitioner has filed several motions to obtain damage experts pending the outcome of this Ruling. Given this Ruling, Petitioner’s motions to appoint damages experts are DENIED. Petitioner shall file a joint status report, by Friday, July 26, 2024, updating the Court on the parties’ settlement discussions. This status report shall provide a detailed update on each item of damages, indicating which items remain in dispute and how the parties are working toward resolution. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 35 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. 39 ================================================================================ DOCUMENT 3: USCOURTS-cofc-1_17-vv-00243-3 Date issued/filed: 2025-11-14 Pages: 23 Docket text: PUBLIC DECISION (Originally filed: 10/20/2025) regarding 220 DECISION of Special Master. Signed by Special Master Nora Beth Dorsey. (aevw) Service on parties made. -------------------------------------------------------------------------------- Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 1 of 23 In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS Filed: October 20, 2025 * * * * * * * * * * * * * * * * * * * * * * * * * A.B. * PUBLISHED * Petitioner, * No. 17-243V * v. * Special Master Nora Beth Dorsey * SECRETARY OF HEALTH * Decision Awarding Damages; Hepatitis B AND HUMAN SERVICES, * (“Hep B”) Vaccine; Bell’s Palsy; Pain and * Suffering; Lost Wages; Unreimbursable Respondent. * Expenses. * * * * * * * * * * * * * * * * * * * * * * * * * * Richard Gage, Richard Gage, P.C., Cheyenne, WY, for Petitioner. Colleen Clemons Hartley, U.S. Department of Justice, Washington, DC, for Respondent. DAMAGES DECISION1 On February 21, 2017, A.B. (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“Vaccine Act” or “the Program”), 42 U.S.C. § 300aa-10 et seq. (2018).2 Petitioner alleged he suffered from Bell’s palsy as the result of a hepatitis B (“Hep B”) vaccination he received on October 2, 2014. Petition at 1 (ECF No. 1). On September 20, 2021, the undersigned issued a Ruling on Entitlement, finding Petitioner entitled to compensation. Ruling on Entitlement dated Sept. 20, 2021 (ECF No. 75). 1 Because this Decision contains a reasoned explanation for the action in this case, the undersigned is required to post it on the United States Court of Federal Claims’ website and/or at https://www.govinfo.gov/app/collection/uscourts/national/cofc in accordance with the E- Government Act of 2002. 44 U.S.C. § 3501 note (2018) (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, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access. 2 The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§ 300aa-10 to -34 (2018). All citations in this Decision to individual sections of the Vaccine Act are to 42 U.S.C. § 300aa. Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 2 of 23 Since that ruling, the parties have been in the damages phase of litigation and have been unable to resolve the appropriate amount of compensation to be awarded to Petitioner. The parties disputed whether Petitioner was entitled to recover for loss of earnings, requiring the undersigned’s input. The undersigned issued a Ruling on Petitioner’s loss of earnings claim in June 2024, finding Petitioner entitled to past lost wages from October 6 through October 17, 2014. Ruling Regarding Petitioner’s Lost Earnings Claim (“Lost Earnings Ruling”) dated June 26, 2024 (ECF No. 181). Based on that ruling, the parties agreed Petitioner’s lost earnings was $3,131.00. Respondent’s Brief on Damages (“Resp. Br.”), filed Mar. 10, 2025, at 1 n.2 (ECF No. 211); Joint Status Report (“Rept.”), filed Jan. 2, 2025 (ECF No. 204). The parties have also been unable to resolve the amount of compensation to be awarded for pain and suffering and unreimbursable out-of-pocket expenses, and the parties requested that the Court resolve these matters following briefing. The parties briefs have now been filed. After consideration of all the evidence, and for the reasons described herein, the undersigned awards Petitioner (1) $125,000.00 for actual pain and suffering, (2) $3,131.00 for lost wages, and (3) $1,215.32 for past unreimbursed expenses, for a total award of $129,346.32. I. PROCEDURAL HISTORY The procedural history is set forth in two rulings, the Ruling on Entitlement, filed August 19, 2021, and the Ruling regarding Petitioner’s lost earning claim, refiled as redacted on September 5, 2024. See Ruling on Entitlement at 2; Lost Earnings Ruling at 2. Thereafter, the parties were unable to resolve outstanding damages for pain and suffering and out-of-pocket expenses and requested to submit the damages items that remained in dispute to the Court for resolution on the briefs. Joint Status Rept., filed Jan. 10, 2025 (ECF No. 206). On February 17, 2025, Petitioner filed a brief in support of his claim for pain and suffering. Pet. Memorandum on Pain and Suffering (“Pet. Pain and Suffering Memo.”), filed Feb. 17, 2025 (ECF No. 210). Respondent filed his responsive brief on March 10, 2025. Resp. Br. On August 7, 2025, Petitioner filed an itemized list of out-of-pocket expenses for which he was seeking reimbursement. Pet. Exhibit (“Ex.”) 70. Respondent provided his position on Petitioner’s out-of-pocket expenses on August 27, 2025, and Petitioner responded on September 10, 2025. Resp. Position on Out-of-Pocket Expenses (“Resp. Out-of-Pocket Br.”), filed Aug. 27, 2025 (ECF No. 215); Pet. Final Request for Out of Pocket Expenses (“Pet. Out-of-Pocket Memo.”), filed Sept. 10, 2025 (ECF No. 218). This matter is now ripe for adjudication. II. FACTUAL HISTORY A. Medical Record History The Ruling on Entitlement and Ruling Regarding Petitioner’s Lost Earnings Claim set forth a summary of Petitioner’s medical records, affidavit, and expert opinions. See Ruling on 2 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 3 of 23 Entitlement 3-18; Lost Earnings Ruling 3-23. These summaries are incorporated herein as if fully set forth. Further, the parties have set forth summaries of relevant facts which support their respective positions in their briefs, which the undersigned has reviewed. A summary of some facts relevant to this Decision follows. While all the records are important, these entries provide context for the reader. Petitioner was 46 years of age when he received his third Hep B vaccination,3 on October 2, 2014, in his left arm. Pet. Ex. 1 at 6. Four days later, on October 6, 2014, Petitioner presented to neurologist Dr. Shahbuddin Mukardamwala, with weakness of the left side of his face. Pet. Ex. 3 at 1. Petitioner reported that he had received the Hep B vaccine the prior Thursday (October 2, 2014), and that the following day, Friday (October 3, 2014), he had a severe headache involving the left postauricular4 area. Id. By Saturday (October 4, 2014), Petitioner was unable to close his left eye and he had numbness of the left side of his face. Id. He sought treatment at a local emergency room, where he was noted to have neuropathic pain. Pet. Ex. 7 at 2. Dr. Mukardamwala’s physical examination revealed that Petitioner was unable to wrinkle the left side of his forehead, that he had left eye closure weakness, and left nasolabial flattening. Id. Petitioner was diagnosed with “[l]eft peripheral seventh nerve palsy.” Id. at 2. Petitioner had worsening of his left postauricular pain on October 13, 2014. Pet. Ex. 3 at 3. MRI of the brain performed on October 14, 2014 did not show any acute intracranial process. Pet. Ex. 5 at 15. Dr. Mukardamwala saw Petitioner on October 17, 2014 for continued symptoms. Pet. Ex. 3 at 4. The day before, Petitioner called to report “severe left-sided occipital temporal headaches with subjective feeling of numbness.” Id. Dr. Mukardamwala increased the dose of Cymbalta, which Petitioner stated did not help him. Id. Physical examination showed Petitioner’s eye closure had improved. Id. Petitioner underwent an occipital nerve block. Id. He tolerated the procedure well and after it was completed, reported improvement. Id. at 5. Tylenol #3 and Ativan were given for anxiety and pain. Id. Dr. Mukardamwala noted that Petitioner was improving. Id. Because Petitioner’s symptoms were improving, Dr. Mukardamwala told Petitioner he could return to work. Id. On November 4, 2014, Petitioner returned for follow-up. Pet. Ex. 3 at 6. Since receiving the nerve block at the previous visit, “his pain [was] better.” Id. He had been to the chiropractor and the treatment had “relieved his muscle tension.” Id. He “report[ed] improvement in his symptoms.” Id. Dr. Mukardamwala noted that Petitioner was “improving gradually.” Id. “His facial strength was better,” his “[l]eft nasolabial fold [was] reappearing,” “[h]is forehead wrinkling ha[d] improved,” and he had “improvement in blinking on left side.” Id. 3 The Hep B vaccine is given in a series of three doses on a zero, one-month, and six-month schedule. See Pet. Ex. 41 at 2. Petitioner received the ENGERIX-B vaccine. Pet. Ex. 1 at 6. 4 The postauricular area is behind or posterior to the auricle, the exterior portion of the ear. Dorland’s Illustrated Medical Dictionary 1479 (33d ed. 2020). 3 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 4 of 23 On January 5, 2015, Petitioner saw Dr. Mukardamwala for follow-up, and he complained of panic attacks and night terrors. Pet. Ex. 3 at 7. His Bell’s palsy had improved—he had a symmetric smile and symmetric forehead wrinkling. Id. He was prescribed Paxil 20 mg to be taken twice daily for anxiety and melatonin at night for sleep. Id. Petitioner returned on February 24, 2015, with complaints of “left facial tightness and facial spasms.” Id. at 8. Warm compresses and Methocarbamol5 were prescribed for facial tightness and spasms, and his dose of Paxil was decreased. Id. Petitioner was also referred to psychiatry. Id. Dr. Salah Qureshi, a psychiatrist, saw petitioner on March 11, 2015. Pet. Ex. 6 at 4; Pet. Ex. 8 at 2. Petitioner reported facial pain, anxiety, and depression. Pet. Ex. 6 at 4; Pet. Ex. 8 at 2. Dr. Qureshi prescribed Effexor.6 Pet. Ex. 6 at 5; Pet. Ex. 8 at 2. Dr. Qureshi continued to see and treat Petitioner over a period of several years. See generally Pet. Ex. 8. On October 20, 2015, Dr. Qureshi diagnosed Petitioner with post-traumatic stress disorder (“PTSD”). Id. at 6. Petitioner returned on April 13, 2016 for follow-up and reported that he was “doing fine.” Pet. Ex. 8 at 8. He was “undergoing [a] jury trial for divorce and fe[lt] pressured because of that. He [was] stressed out financially and [was] also taking care of his [two] year old daughter.” Id. He felt “overwhelmed,” “anxious at times,” and had experienced a “panic attack 10 days ago . . . for a few minutes.” Id. He was “angry and frustrated at his wife” who “initially ran away with his daughter.” Id. Dr. Qureshi documented that Petitioner was “able to sleep well at night.” Id. His medications, particularly the Wellbutrin, were “working well for him.” Id. At the April 13, 2016 visit, Petitioner did not report that he had been terminated from his employment due to failure to obtain approval for leave. See id.; see also Pet. Ex. 63 at 190. There are no records of visits to Dr. Qureshi’s office after the visit on April 13, 2016 until April 26, 2017, a period of over one year. See Pet. Ex. 8 at 9. On April 26, 2017, Petitioner returned to Dr. Qureshi for anxiety and medication refill. Pet. Ex. 8 at 9. He reported “feeling very anxious due to ongoing divorce.” Id. He “[was] restless and not able to sleep well.” Id. He was also “overwhelmed and stressed.” Id. He was “taking care of his daughter” and “looking for a job now.” Id. Diagnosis was PTSD. Id. He restarted Klonopin and started Zoloft.7 Id. 5 “Methocarbamol is indicated as an adjunct to rest, physical therapy, and other measures for the relief of discomfort associated with acute, painful musculoskeletal conditions.” Methocarbamol, RxList, https://www.rxlist.com/consumer_methocarbamol_robaxin/drugs-condition.htm (last visited Oct. 9, 2025). 6 Effexor (venlafaxine) “is used to treat depression, anxiety, panic attacks, and social anxiety disorder (social phobia).” Venlafaxine, RxList, https://www.rxlist.com/consumer_venlafaxine_ effexor_effexor_xr/drugs-condition.htm (last visited Oct. 9, 2025). 7 “Zoloft (sertraline) is an SSRI (selective serotonin reuptake inhibitors) antidepressant prescribed for the treatment of[] depression, obsessive compulsive disorder (OCD), panic disorder, [PTSD], [and] social anxiety disorder . . . .” Zoloft, RxList, https://www.rxlist.com/ zoloft-drug.htm (last updated Sept. 6, 2023). 4 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 5 of 23 Petitioner returned for follow-up of his anxiety to Dr. Qureshi’s office on May 10, 2017 and saw Jie Zheng, Physician Assistant (“PA”). Pet. Ex. 8 at 11. Petitioner was “less depressed and less anxious.” Id. He reported “sleeping better.” Id. His diagnosis remained PTSD. Id. His medications were renewed. Id. at 11-12. At the next follow-up visit on June 7, 2017, Petitioner saw Quynh Tu Vu, PA. Pet. Ex. 8 at 13. Petitioner was “feeling fair,” although he “continue[d] to have some anxiety and depression.” Id. He was “more concerned with the anxiety due to ongoing divorce proceeding and child custody trial.” Id. Prescriptions for refills of Klonopin and new prescriptions for Paxil and Tramadol8 were given. Id. at 14. On August 25, 2017, petitioner underwent a medical examination for a social security disability determination by Dr. Ron Kirkwood. Pet. Ex. 14 at 2-5. Dr. Kirkwood noted that Petitioner continued to have palsy on the left side of his face and that it affected his eye. Id. at 2. Petitioner returned to Dr. Qureshi next on April 2, 2018, ten months after his last appointment in June 2017. Pet. Ex. 8 at 13; Pet. Ex. 46 at 2. On April 2, 2018, Petitioner reported to Dr. Qureshi that in March he was admitted to the hospital for chest pain but was diagnosed with anxiety. Pet. Ex. 46 at 2. His primary care physician prescribed Diazepam for anxiety, and he was “doing much better.” Id. Also, Petitioner “recently received custody of his daughter and he [was] feeling better.” Id. Dr. Qureshi’s diagnosis was PTSD and insomnia, and refills were given for Diazepam, Paxil, and Ambien. Id. at 2-3. Petitioner presented to Dr. Raghu Athre, M.D., on April 25, 2018, complaining of tightness in the left side of his face. Pet. Ex. 11 at 1. Petitioner reported that his “muscle tightness [was] due to Bell’s palsy” in October 2014, and that he had “pain due to the muscle spasm.” Id. at 3. Dr. Athre documented that Petitioner had “complete facial nerve movement on the left side.” Id. Physical examination revealed his “[t]rigeminal nerve [was] intact over all three branches. No cranial nerve deficits [were] noted.” Id. at 1. Dr. Ahtre “explained to [Petitioner] that [he] fe[lt] his cosmetic outcome after Bell’s palsy [was] excellent.” Id. Dr. Ahtre did not recommend any additional treatment for Petitioner’s Bell’s palsy. Id. Jie Zheng, PA saw Petitioner for follow-up on May 3, 2018. Pet. Ex. 46 at 4. Petitioner now had “custody of his daughter and [was] happy about it.” Id. He reported being less depressed and anxious. Id. He also left paperwork to support his disability claim with Dr. Qureshi to complete. Id. Petitioner “denie[d] other life stressors at present.” Id. At his follow- up visit on June 4, 2018 with Jie Zheng, PA, Petitioner reported “doing ‘ok’” and less depressed and anxious on his current medications. Id. at 6. He had an MRI due to back pain and was taking Tylenol #3 for the pain. Id. Petitioner reported some anxiety and stress related to caring for his daughter. Id. He was also noted to be in the process of getting a divorce. Id. Petitioner’s next visit was July 2, 2018, again with Jie Zheng, PA. Id. at 8. The records from that visit do 8 “Ultram (tramadol) is a pain reliever (analgesic) used to treat moderate to moderately severe pain in adults.” Ultram, RxList, https://www.rxlist.com/ultram-drug.htm (last updated July 11, 2022). 5 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 6 of 23 not show any substantive changes in Petitioner’s condition. See id. at 8-9. At these three visits, Petitioner’s Bell’s palsy was not documented as contributing to his anxiety. See id. at 4-9. Petitioner had a telephone visit with Dr. Qureshi on July 17, 2018, and was seen by Sheila Huynh, PA, to complete his disability paperwork. Pet. Ex. 46 at 11. He reported that he was “not able to focus” and had been “out of work since March 2016.” Id. “He complain[ed] of continue[d] pain and not [being] able to stand for [a] long time.” Id. His current stressor was “out of work[] and divorce complete.” Id. Petitioner did not identify his Bell’s palsy as a current stressor. See id. Diagnosis was PTSD and insomnia. Id. at 12. Petitioner’s medications were refilled. Id. On August 7, 2018, Petitioner saw Jie Zheng, PA. Pet. Ex. 46 at 14. They discussed his medication regimen. Id. He reported being stressed by his divorce case; his next court date was August 22. Id. At his next visit on September 7, 2018, Petitioner again saw Jie Zheng, PA. Id. at 17-18. There was no history documented. Id. Petitioner had a two-month follow-up visit on November 12, 2018 with Jie Zheng, PA. Id. at 20. He reported that “he ha[d] been off his medications for several weeks,” and he could not make an appointment due to a procedure. Id. He was “struggl[ing] with his ex-wife” and reported “she [was] causing troubles.” Id. In 2018 and 2019, Petitioner received medical care at Memorial Hermann Clinic, where he saw family practice physician, Dr. Marlyn Generillo, for general medical care. See Pet. Ex. 49. On May 9, 2018, Petitioner saw Dr. Generillo for low back pain that “started in 2004.” Id. at 3. The note from that visit stated that Petitioner was unable to work due to his back pain. Id. Formerly, Petitioner “work[ed] as a pharmacist but standing for long periods of time hurt his back a lot.” Id. Dr. Generillo also noted Petitioner’s history of severe anxiety. Id. Petitioner’s Problem List did not include Bell’s palsy. See id. Review of symptoms did not identify any problems secondary to Bell’s palsy. See id. Physical examination did not identify any abnormalities related to Bell’s palsy. See id. at 3-4. Dr. Generillo refilled Petitioner’s prescription for Tylenol #3 and ordered Flexeril and meloxicam for back pain. Id. at 4. In addition to back pain, Petitioner also sought treatment at Memorial Hermann Clinic in 2018 and 2019 for his “history of weak sphincter muscles.” Pet. Ex. 49 at 12. On October 16, 2018, Dr. Khani noted that Petitioner had a past medical history of “stress disorder due to chronic back pain with herniated disc.” Id. The appointment focused on Petitioner’s rectal pressure and urgency and frequent bowel movements. See id. at 12-13. There was no discussion of Bell’s palsy. See id. Petitioner completed a patient questionnaire at this appointment. Id. at 21-23. In the section about past medical history, Petitioner did not document his history of Bell’s palsy. See id. at 21. He also did not document any current symptoms related to Bell’s palsy in his review of systems. See id. at 23. Petitioner documented his current symptom of anxiety and wrote it was “due to stress from the anal sphincter issue. Excessive [bowel movement] urgency and chronic back problem due to herniated lumbar disc.” Id. He did not attribute his current anxiety to Bell’s palsy. See id. at 21-23. Petitioner’s records from 2018 to 2022 do not document that he was experiencing stress or anxiety due to his Bell’s palsy or any medical or physical sequela from his Bell’s palsy. Instead, during this time frame, his stressors were documented to be related to obtaining custody 6 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 7 of 23 of his daughter, his ongoing divorce proceedings, and his finances. See Pet. Ex. 46 at 2-22. In 2019, Petitioner’s reported stressors were related to his finances, ex-wife, worry for his daughter, back pain, and the denial of his disability application. See id. at 23-46. In 2020 and 2021, Petitioner experienced anger and stress for all of these same reasons, compounded by the stress of the Covid pandemic. Id. at 47-69. Medical records from Petitioner’s appointments in 2022 were all very similar. See Pet. Ex. 55 at 5-14. On May 9, Petitioner reported that his current stressors included “dealing with mental illness and finances.” Id. at 5. At the visit on August 1, Petitioner reported “depression and anxiety related to his past trauma. He report[ed] he ha[d] started therapy to work through these issues.” Id. at 8. The past trauma was not described in the records. See id. Bell’s palsy, or its residual effects, was not mentioned. See id. Although the note stated that he had started therapy, the name of the therapist was not identified. See id. And on November 1, 2022, Petitioner reported that his current stressors were “dealing with mental illness” and “related to finances and trouble gaining SSI [disability].” Id. at 11. In 2021, Petitioner sought treatment for his low back pain that began in 2004 and worsened over time. Pet. Ex. 48 at 12. On May 25, 2021, he saw Dr. Seema Rasheed at Texas Pain where he reported having back pain every day which prevented him from being able to work. Id. Petitioner also complained of gastrointestinal issues and a rectocele, which “cause[d] him a lot of anxiety.” Id. Petitioner was diagnosed with lumbar radiculopathy, lumbar spondylosis, anxiety, lumbar degenerative disc disease, chronic pain disorder, and “[a]dmission for long-term opiate use.” Id. at 12-13. Petitioner reported that he had been taking Tylenol #3 “for some time” and it “seem[ed] to help the best.” Id. at 13. Petitioner reported that he was seeing a psychiatrist for his anxiety. Id. Bell’s palsy was listed in Petitioner’s past medical history, however there was no indication that Petitioner was experiencing any pain secondary to his history of Bell’s palsy. Id. at 12-14. Petitioner returned to Texas Pain for follow-up and medication refills from July through November 2021. Pet. Ex. 46 at 15-26. At the visit on August 18, 2021, Petitioner reported seeing a psychologist9 and psychiatrist weekly. Id. at 19. On September 13, Petitioner stated that he “continue[d] to have anxiety from the injection . . . which gave him Bell’s palsy, and [he was] not interested in injections” as treatment for his back pain. Id. at 21. In October 2021, Petitioner stated that his back pain was “well controlled” with his current medication. Id. at 23. Petitioner also filed medical records from Texas Pain documenting monthly visits from December 8, 2021 until November 30, 2022 for continued treatment of his chronic back pain. Pet. Ex. 48 at 35-36; Pet. Ex. 56 at 1-23. Assessments for these visits included lumbar radiculopathy, anxiety, chronic abdominal pain, lumbar spondylosis, lumbar degenerative disc disease, chronic pain disorder, and “[a]dmission for long-term opiate use.” Pet. Ex. 56 at 1, 3, 5, 7, 9, 12-14, 16, 18, 20, 22. “Myofascial pain” was added under assessments on October 26, 2022 and was included in the assessments from the visit on November 30, 2022. Id. at 20, 22. During the period of treatment, Petitioner was prescribed acetaminophen with Codeine, Cyclobenzaprine, and Flexeril for treatment of his back pain. Id. at 1-23. The records indicated that Petitioner underwent surgery for an abdominal hernia in February 2022. Id. at 4. There is 9 Petitioner did not identify the psychologist who was treating him in 2021, and it does not appear he has produced records from that provider. 7 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 8 of 23 no mention in these records to any pain or other residual effects from Bell’s palsy. See id. at 1- 23. Petitioner was seen by Dr. Tariq for a “legal evaluation” on January 13, 2023. Pet. Ex. 59 at 2. The evaluation was done “in the context of [Petitioner’s] lawyers wanting to talk to supervising provider about patient’s current mental status.” Id. Petitioner reported “low mood, anhedonia, lack of energy, feelings of hopelessness, insomnia[,] and feelings of helplessness.” Id. He also “discussed the impact his facial palsy [] had on his mental health.” Id. He reported that he never had “depression or anxiety prior to the facial palsy. He fe[lt] the facial palsy, through the symptoms it caused [] including head and neck pain, change in appearance etc. ha[d] impaired him to the point that he has no meaningful ability to function socially or occupationally.” Id. Petitioner acknowledged “mild improvement in his depressive and anxiety symptoms with medication [] and psychotherapy.” Id. On examination, Dr. Tariq noted Petitioner’s thought process was “[l]ogical and linear,” his short- and long-term memory were normal, his attention span was normal, and insight and judgment were fair. Id. at 3. Dr. Tariq’s diagnoses included “[m]ajor depressive disorder, recurrent episode, moderate;” “[g]eneralized anxiety disorder;” and PTSD. Id. Petitioner agreed to continue his current medications, which included Ambien for sleep as needed, Zoloft daily, Klonopin as needed three times per day, and Trazodone at bedtime as needed. Id. In addition to the medical records, Dr. Tariq wrote two versions of a “Psychiatric Opinion Letter,” both dated February 2, 2023, regarding his visit with Petitioner on January 13, 2023.10 Pet. Exs. 57-58. In the first, Dr. Tariq stated that Petitioner had been under his care since May 2021, through Jayma Mickler, PAC, and that he was seen for a comprehensive evaluation on January 13, 2023. Pet. Ex. 57 at 1; see Pet. Ex. 46 at 65; Pet. Ex. 59 at 2. Dr. Tariq stated that despite treatment with medication and psychotherapy, Petitioner had “not experienced any meaningful or lasting improvement in his symptoms.” Pet. Ex. 57 at 1. Dr. Tariq also stated that Petitioner “consistently cited his facial palsy as his primary stressor.” Id. When seen on January 13, 2023, Petitioner was described as “severely depressed and anxious.”11 Id. at 1-2. Dr. Tariq concluded that it was his opinion that “the facial palsy subsequent to [Hep] B vaccination in October of 2014 is the most important predisposing and precipitating factor in the etiology of [Petitioner’s] current psychiatric symptoms.” Id. at 2. Dr. Tariq added that “[t]he changes in [Petitioner’s] appearance and functioning of his facial muscles, as well as head and neck pain resulting from the Bell’s [p]alsy continue to be perpetuating factors for his mood, anxiety[,] and PTSD symptoms.” Id. 10 The second opinion letter is similar to the first but includes a paragraph about Petitioner’s inability to work. See Pet. Ex. 58 at 2. 11 This statement is in contrast with Dr. Tariq’s record on January 13, in which he diagnosed Petitioner with “moderate” but not severe depression. Pet. Ex. 59 at 3. 8 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 9 of 23 B. Petitioner’s Affidavits and Declarations12 Petitioner executed an affidavit on February 28, 2019. Pet. Ex 15. In it, Petitioner averred that he received the Hep B vaccine at issue on Thursday, October 2, 2014. Id. at ¶ 1. On the afternoon of Friday, October 3, 2014, he began having a headache. Id. at ¶ 2. His headache continued and became severe, with “sharp piercing pain behind [his] left ear, and [his] left eye was mildly burning with flowing tears.” Id. On Sunday, October 5, 2014, Petitioner’s pain, eye burning, and tearing continued. Id. at ¶ 3. When he arrived home after work, and looked in the mirror, he saw that his “face was deformed.” Id. His left eye did not blink or close, his mouth could not hold water when he tried to brush his teeth, the left side of his face had no feeling, he was unable to chew food, and his mouth was drooping on the left side. Id. Petitioner “thought [he] was having a stroke,” and so he drove himself to an emergency room. Id. At the emergency room, Petitioner was given medication for his severe headache. Pet. Ex. 15 at ¶ 4. The “sharp piercing pain behind [his] left ear continued for [three to four] months” and did not respond to medical treatment, so Petitioner had a nerve block. Id. at ¶ 5. Petitioner also had numbness of his tongue for approximately six months. Id. As of the date of the affidavit, February 28, 2019, Petitioner averred that he continued to “experience tightness and spasms in the left corner of [his] mouth, the left side of [his] face, and the top of [his] left eye below [the] eyebrow.” Pet. Ex. 15 at ¶ 6. Petitioner also stated that he had fatigue and spasms of his left eye. Id. He avoided smiling because his smile is not symmetric. Id. Due to his Bell’s palsy, Petitioner averred that he “developed chronic anxiety, depressive episodes, nightmares due to panic attacks at night, and chronic insomnia.” Pet. Ex. 15 at ¶ 7. He further alleged that he has been “diagnosed with PTSD and chronic insomnia.” Id. He saw a psychiatrist and took medication to treat these conditions. Id. As of December 2023, Petitioner explained his face does not look “normal” and appears “uneven” when he tries to smile. Pet. Ex. 68 at ¶ 6. If he is stressed, he feels “a band around [his] face that hurts” and his “left eye will twitch and water.” Id. He also reported “[his] left ear is much more sensitive to sounds” since his Bell’s palsy. Id. When the phone would ring at work, his left ear would hurt and increase his anxiety, and as his anxiety increased, his symptoms and pain would also increase. Id. And due to this anxiety, he found it “very hard to concentrate and remember.” Id. 12 Petitioner executed his first affidavit on December 12, 2017, but it is not summarized herein. See Pet. Ex. 9 at 1. In addition, he executed a declaration on September 25, 2023, regarding short term disability, and a declaration on December 4, 2023, regarding his claim for lost wages. See Pet. Exs. 67-68. Petitioner’s second affidavit is the most relevant to the issue of pain and suffering, and so it is summarized herein. See Pet. Ex. 15. A portion of his December 4, 2023 declaration is also included in this summary. See Pet. Ex. 68. 9 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 10 of 23 III. PAIN AND SUFFERING A. Parties’ Contentions—Pain and Suffering 1. Petitioner’s Contentions Petitioner requests a past and future pain and suffering award of $250,000.00. Pet. Pain and Suffering Memo. at 6, 9. If $250,000.00 is not awarded for past pain and suffering, Petitioner recommends an award for future pain and suffering until the statutory cap ($250,000.00) is hit. Id. at 6. He provides an example of an award of $150,000.00 for past pain and suffering, and $10,000.00 per year, for the next ten years, to reach $250,000.00. Id. at 6-7. Petitioner notes awareness of the injury is not in dispute. Pet. Pain and Suffering Memo. at 9. Regarding the duration of Petitioner’s injury, Petitioner contends his injury is chronic. Id. Petitioner developed Bell’s palsy in October 2014 and has suffered from the condition since that time. Id. Regarding severity, Petitioner explains that he has experienced pain, hearing problems, and psychological injury which affects his interactions with people, his ability to tolerate loud noises, and his enjoyment of life. Id. To support his contention that he has suffered long-term psychological effects from his Bell’s palsy, Petitioner cites two medical articles referenced by his expert, Dr. Kinsbourne. Pet. Pain and Suffering Memo. at 7. The Fu et al.13 article reported “significant levels of psychological distress” in some patients with “widespread low levels of psychological distress in the sample as a whole” and “[s]ignificant correlations . . . between some of the participants’ perceptions of their facial palsy and their level of psychological distress.” Pet. Ex. 18 at 4-5. And Baugh et al.14 reported that “Bell’s palsy patients with incomplete facial nerve recovery are at risk for function and psychological impairment.” Pet. Ex. 43 at 21. In conclusion, Petitioner requests $250,000.00 for his past and future pain and suffering and emotional distress. Pet. Pain and Suffering Memo. at 9. If an amount less than $250,000.00 is awarded for past damages, Petitioner asks the undersigned to apply the Youngblood rule,15 and award a future pain and suffering award. Id. 13 L. Fu et al., Psychological Distress in People with Disfigurement from Facial Palsy, 25 Eye 1322 (2011). 14 Reginald F. Baugh et al., Clinical Practice Guideline: Bell’s Palsy, 149 Otolaryngol. Head & Neck Surg. S1 (2013). 15 Petitioner asserts that the Federal Circuit’s holding in Youngblood “mandates that the statutory cap of $250,000 [[§] 15(a)(4)] must be applied first. If the full $250,000 has not been awarded for past pain and suffering, then any portion of [P]etitioner’s pain and suffering that is found by the Special Master to be ‘future’ must be reduced to net present value in accordance with [§] 15(f)(4)(A)[].” Pet. Pain and Suffering Memo. at 6 (citing Youngblood ex rel. Youngblood v. Sec’y of Health & Hum. Servs., 32 F.3d 552, 555 (Fed. Cir. 1994)). 10 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 11 of 23 2. Respondent’s Contentions Respondent requests that the Court award Petitioner $125,000.00 for pain and suffering. Resp. Br. at 1. First, Respondent contends “Petitioner experienced a moderate course of Bell’s palsy of limited duration,” consisting of an ER visit, follow-up care, chiropractic care, an MRI, prescription medications, and a nerve block. Resp. Br. at 17. He was cleared to return to work within two weeks, October 17, 2014. Id. at 17 n.14. He did not require surgery or specialized care to treat dry eyes. Id. at 18. When evaluated in 2018, Petitioner was noted to have an excellent outcome. Id. (citing Pet. Ex. 11 at 1). Thus, Respondent asserts that Petitioner has not shown any long-lasting effects of his condition or any evidence of residual impairments. Id. Second, as for Petitioner’s psychological injury, Respondent argues that Petitioner has “not provided preponderant evidence that he has suffered and continues to suffer mental anguish or ‘psychological effects’ from Bell’s palsy.” Resp. Br. at 18. Respondent notes that after the vaccination at issue, Petitioner had “numerous personal stressors in his life,” including divorce, loss of his job, financial problems, childcare for his young child, and other medical problems (back pain, rectal fistula, weak sphincter muscles, and thyroid nodule). Id. at 18-19. In further support, Respondent discussed Sturdevant, where the undersigned awarded $100,000.00 in pain and suffering to a petitioner with a vaccine-related injury of Bell’s palsy. Resp. Br. at 19 (citing Sturdevant v. Sec’y of Health & Hum. Servs., No. 17-172V, 2024 WL 1045145, at *1 (Fed. Cl. Spec. Mstr. Feb. 12, 2024)). In Sturdevant, the petitioner did not require an occipital nerve block, but he continued to have right-sided facial weakness eight years following diagnosis, required eye protection, and had problems with coordination and drinking liquids. Id. (citing Sturdevant, 2024 WL 1045145, at *12). Here, Respondent asserts that Petitioner did not have any of these sequela. Id. Respondent concluded that “[g]iven that [P]etitioner herein made a positive recovery from his Bell’s [p]alsy without permanent or ongoing sequela, but required additional medical intervention greater than the petitioner in Sturdevant, an award of $125,000.00 in pain and suffering is reasonable and wholly appropriate.” Id. B. Legal Framework—Pain and Suffering Compensation awarded pursuant to the Vaccine Act shall include “[f]or actual and projected pain and suffering and emotional distress from the vaccine-related injury, an award not to exceed $250,000.” § 15(a)(4). Petitioner bears the burden of proof with respect to each element of compensation requested. Brewer v. Sec’y of Health & Hum. Servs., No. 93-0092V, 1996 WL 147722, at *22-23 (Fed. Cl. Spec. Mstr. Mar. 18, 1996). There is no formula for assigning a monetary value to a person’s pain and suffering and emotional distress. I.D. v. Sec’y of Health & Hum. Servs., No. 04-1593V, 2013 WL 2448125, at *9 (Fed. Cl. Spec. Mstr. May 14, 2013) (“Awards for emotional distress are inherently subjective and cannot be determined by using a mathematical formula.”); Stansfield v. Sec’y of Health & Hum. Servs., No. 93-0172V, 1996 WL 300594, at *3 (Fed. Cl. Spec. Mstr. May 22, 1996) 11 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 12 of 23 (“[T]he assessment of pain and suffering is inherently a subjective evaluation.”). Factors to be considered when determining an award for pain and suffering include: (i) awareness of the injury; (ii) severity of the injury; and (iii) duration of the suffering. I.D., 2013 WL 2448125, at *9 (quoting McAllister v. Sec’y of Health & Hum. Servs., No. 91-1037V, 1993 WL 777030, at *3 (Fed. Cl. Spec. Mstr. Mar. 26, 1993), vacated & remanded on other grounds, 70 F.3d 1240 (Fed. Cir. 1995)). The undersigned may look to prior pain and suffering awards to aid in the resolution of the appropriate amount of compensation for pain and suffering in this case. See, e.g., Doe 34 v. Sec’y of Health & Hum. Servs., 87 Fed. Cl. 758, 768 (2009) (finding that “there is nothing improper in the chief special master’s decision to refer to damages for pain and suffering awarded in other cases as an aid in determining the proper amount of damages in this case”). The undersigned may also rely on her experience adjudicating similar claims. Hodges v. Sec’y of Health & Hum. Servs., 9 F.3d 958, 961 (Fed. Cir. 1993) (noting that Congress contemplated the special masters would use their accumulated expertise in the field of vaccine injuries to judge the merits of individual claims). Importantly, however, it must also be stressed that pain and suffering is not determined based on a continuum. See Graves v. Sec’y of Health & Hum. Servs., 109 Fed. Cl. 579 (2013). In Graves, Judge Merow rejected the special master’s approach of awarding compensation for pain and suffering based on a spectrum from $0.00 to the statutory $250,000.00 cap. Judge Merow noted that this constituted “the forcing of all suffering awards into a global comparative scale in which the individual petitioner’s suffering is compared to the most extreme cases and reduced accordingly.” Graves, 109 Fed. Cl. at 589-90. Instead, Judge Merow assessed pain and suffering by looking to the record evidence, prior pain and suffering awards within the Vaccine Program, and a survey of similar injury claims outside of the Vaccine Program. Id. at 595. C. Analysis—Pain and Suffering Award In determining an award in this case, the undersigned does not rely on a single decision or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case, giving due consideration to the circumstances and damages in other cases cited by the parties and other relevant cases, as well as her knowledge and experience adjudicating similar cases. The undersigned has reviewed the entire record, including medical records, declarations, expert reports, and all other evidence that has been filed, and finds an award of $125,000.00 in actual pain and suffering to be fair, reasonable, and appropriate. It is appropriate to consider the severity of the injury, awareness of the injury, and duration of the suffering when determining an award for pain and suffering and emotional distress. In the undersigned’s experience, awareness of suffering is not typically a disputed issue in cases involving Bell’s palsy. In this case, neither party has raised, nor is the undersigned aware of, any issue concerning Petitioner’s awareness of suffering. Thus, based on the circumstances of this case, the undersigned determines Petitioner’s awareness of the injury is not in dispute and he has full awareness of his suffering. 12 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 13 of 23 The factors that particularly influence this award include the severity and duration of Petitioner’s injury and the physiological injury he experienced. The undersigned finds that Petitioner experienced a moderately severe Bell’s palsy for which he received limited medical treatment, including treatment at a local emergency room, an MRI, visits to a neurologist from October 2014 though January 2015, an occipital nerve block, prescription medications, and chiropractic care. Unlike some petitioners who suffer Bell’s palsy, Petitioner did not experience an ongoing inability to close his eye, dry eyes, or require ophthalmological care for eye issues. Initially Petitioner had eyelid closure weakness, but by November 4, 2014, his facial strength was noted to be improved. By April 25, 2018, physical examination revealed complete recovery of his facial nerve movements. Further, Petitioner did not experience ongoing problems drinking, swallowing, or eating. He was assessed with an excellent physical recovery. Petitioner asserts that his Bell’s palsy affected his hearing (left ear more sensitive to sound) and that his smile is uneven. However, these deficits are not supported by the medical records. There is no reference in Petitioner’s medical records to hearing loss or sensitivity caused by his Bell’s palsy. Further, Petitioner’s smile was noted to be symmetric on January 5, 2015, when he saw Dr. Mukardamwala for follow-up. See Pet. Ex. 3 at 7 (documenting improvement of his Bell’s palsy with a symmetric smile and symmetric forehead wrinkling). Although he recovered well from a physical point of view and his cosmetic outcome was noted to be excellent, Petitioner suffered emotional distress described as panic attacks and night terrors that he attributed to his Bell’s palsy. Due to this distress, Petitioner was referred to a psychiatrist, Dr. Qureshi, who diagnosed Petitioner with PTSD. Petitioner required psychiatric treatment March 2015 through April 2016, for a period of approximately one year. During that time, Petitioner saw Dr. Qureshi and was prescribed medication for anxiety and depression. At his visit to Dr. Qureshi on April 13, 2016, Petitioner reported that he was “doing fine.” Pet. Ex. 8 at 8. At this visit, his primary stressors were related to ongoing divorce and child custody proceedings, including a jury trial, and the fact that he was providing care to his two year old daughter. After April 13, 2016, there are no records to show that Petitioner sought or received psychiatric care related to his Bell’s palsy. He did not return to see Dr. Qureshi until one year later, on April 26, 2017, and at that time, Petitioner attributed his anxiety to his ongoing divorce. Petitioner’s medical records from 2018 to 2022 show numerous visits for other problems (stress disorder due to chronic back pain due to herniated disc, anal sphincter problem with urgency, chest pain, and anxiety related to divorce) but no documented medical or psychiatric care for his Bell’s palsy. During this time frame, Petitioner’s reported stressors were related to other concerns, not to his Bell’s palsy. Moreover, from 2021 through 2022, Petitioner had monthly visits for treatment of his chronic back pain. In February 2022, he had surgery for an abdominal hernia. There is no mention in the records during these years of pain, anxiety, or emotional distress due to his Bell’s palsy. 13 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 14 of 23 Regarding Dr. Tariq’s 2023 “legal evaluation” and “Psychiatric Opinion Letter,” the undersigned does not find the opinions to be persuasive for several reasons.16 First, the opinions of Dr. Tariq in January and February 2023 relate to Petitioner’s “current mental status” which was over eight years after his episode of Bell’s palsy. Pet. Ex. 59 at 2. During that eight-year period, Petitioner went back to work for over one year, was terminated by CVS, was involved in custody and divorce proceedings, obtained custody of his young daughter, began taking care of his young daughter as a single parent, had progressive back pain requiring pain management treatment, had significant rectal sphincter problems, and experienced other health problems. The passage of time, as well as these life events, likely impacted Petitioner’s mental and physical well-being. Therefore, Dr. Tariq’s opinions based on Petitioner’s current condition in 2023 do not speak to the question of Petitioner’s pain and suffering or emotional distress after his episode of Bell’s palsy and its sequalae with an onset in October 2014. Further, although Dr. Tariq may have been Petitioner’s physician beginning in 2021 and throughout 2022, he did not have any personal knowledge or information about Petitioner prior to that time. Moreover, it is not clear that Dr. Tariq personally evaluated or examined Petitioner in 2021 and 2022, since during that time frame he was seen by Jayma Mickler, PAC. The only time that the records show that Dr. Tariq personally evaluated Petitioner was the remote telemedicine interview in January 2023, when Dr. Tariq performed the evaluation for his legal opinion letter. See Pet. Ex. 57 at 1-2; Pet. Ex. 58 at 1-2; Pet. Ex. 59 at 2-4. Another problem with Dr. Tariq’s opinion letters is that they are inconsistent with his own medical records and the records of Petitioner’s other treating physicians. Dr. Tariq’s medical record history states that Petitioner reported that his “facial palsy, through the symptoms it caused [] including head and neck pain, change in appearance etc. has impaired him to the point that he has no meaningful ability to function socially or occupationally.” Pet. Ex. 59 at 2. However, this history is based on Petitioner’s report, and references to head and neck pain are not including in the records from Petitioner’s other treating physicians. This history is also contradicted by the records of Dr. Athre from April 2018, noting that Petitioner had “complete facial nerve movement” and an “excellent” outcome. Pet. Ex. 11 at 3. Dr. Tariq’s 2023 letter is also inconsistent with the records from 2018 until 2023, in that there are no references to ongoing pain, changes in appearance, or inability to function socially due to Bell’s palsy. Moreover, Dr. Tariq’s opinion letters do not acknowledge the facts and circumstances of Petitioner’s life over the prior eight years. He did acknowledge that Petitioner had been terminated from employment for failing to obtain approval for leave. He did not document or take into consideration that Petitioner had returned to work after his Bell’s palsy episode. He did not address the difficult circumstances of going through custody and divorce proceedings or being the single parent of a young daughter. He did not reference Petitioner’s chronic back pain, necessitating pain management. He did not address Petitioner’s other health problems, such as his issues with bowel urgency due to rectal sphincter problems. And he did not consider how difficult the Covid pandemic was for Petitioner. 16 For a more detailed discussion of the undersigned’s findings relative to Dr. Tariq’s evaluation and opinions, see Lost Earnings Ruling at 34-36. 14 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 15 of 23 Generally, treating physician statements are typically “favored” as treating physicians “are likely to be in the best position to determine whether a ‘logical sequence of cause and effect show[s] that the vaccination was the reason for the injury.’” Capizzano v. Sec’y of Health & Hum. Servs., 440 F.3d 1317, 1326 (Fed. Cir. 2006) (quoting Althen v. Sec’y of Health & Hum. Servs., 418 F.3d 1274, 1280 (Fed. Cir. 2005)). However, no treating physician’s views bind the special master, per se; rather, their views are carefully considered and evaluated. § 13(b)(1); Snyder, 88 Fed. Cl. at 746 n.67. “As with expert testimony offered to establish a theory of causation, the opinions or diagnoses of treating physicians are only as trustworthy as the reasonableness of their suppositions or bases.” Welch v. Sec’y of Health & Hum. Servs., No. 18-494V, 2019 WL 3494360, at *8 (Fed. Cl. Spec. Mstr. July 2, 2019). An opinion by a treating physician that is not supported by a factual basis or other evidence is conclusory in nature. See Robertson v. Sec’y of Health & Hum. Servs., No. 18-554V, 2022 WL 17484980, at *17 (Fed. Cl. Spec. Mstr. Dec. 7, 2022); Cedillo v. Sec’y of Health & Hum. Servs., 617 F.3d 1328, 1347 (Fed. Cir. 2010). Additionally, Dr. Tariq’s opinions are less persuasive as they were not made contemporaneously and were prepared for the purposes of litigation. See Zumwalt v. Sec’y of Health & Hum. Servs., No. 16-994V, 2019 WL 1953739, at *19 (Fed. Cl. Spec. Mstr. Mar. 21, 2019) (rejecting opinion from a treating provider when he presented an opinion two-and-one-half years after treatment and after litigation was initiated), mot. for rev. den’d, 146 Fed. Cl. 525 (2019); Vergara v. Sec’y of Health & Hum. Servs., No. 08-882V, 2014 WL 2795491, at *4 (Fed. Cl. Spec. Mstr. May 15, 2014) (“Special Masters frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in later medical histories, affidavits, or trial testimony.”); Campbell ex rel. Campbell v. Sec’y of Health & Hum. Servs., 69 Fed. Cl. 775, 779 (2006) (“It is, of course, true that where later testimony conflicts with earlier contemporaneous documents, courts generally give the contemporaneous documentation more weight.”); Ricci v. Sec’y of Health & Hum. Servs., 101 Fed. Cl. 385, 391 (2011) (“Medical records from years later, merely chronicling a timeline between vaccination and injury, are not worthy of the same consideration as contemporaneous records.”). Regarding Petitioner’s affidavits and declarations, the undersigned generally finds these express Petitioner’s view of his circumstances. Some of Petitioner’s statements are inconsistent with contemporaneous records, which diminishes their persuasive value. For example, in his initial affidavit executed in 2017, Petitioner averred that in the three years prior to vaccination on October 2, 2014, he was in “good health and [] had not needed to see a health care provider.” Pet. Ex. 9 at ¶ 4. However, his employment records show that Petitioner took a two-month leave 15 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 16 of 23 of absence for health reasons from May to July 2013, and another two months leave of absence for health reasons from May to July 2014.17 Because Petitioner’s affidavits and declarations are inconsistent with and contradicted by the contemporaneous medical records, it is reasonable to give greater weight to the contemporaneous medical records. See Cucuras v. Sec’y of Health & Hum. Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993) (noting that “the Supreme Court counsels that oral testimony in conflict with contemporaneous documentary evidence deserves little weight”); Doe/70 v. Sec’y of Health & Hum. Servs., 95 Fed. Cl. 598, 608 (2010); Stevens v. Sec’y of Health & Hum. Servs., No. 90-221V, 1990 WL 608693, at *3 (Cl. Ct. Spec. Mstr. Dec. 21, 1990) (noting that “clear, cogent, and consistent testimony can overcome such missing or contradictory medical records”); Vergara, 2014 WL 2795491, at *4 (“Special Masters frequently accord more weight to contemporaneously-recorded medical symptoms than those recorded in later medical histories, affidavits, or trial testimony.”). This finding also extends to the lay witness affidavits and testimony. Other special masters have been faced with similar situations and found the contemporaneous medical records more persuasive than the affidavits and testimonies of lay witnesses. See, e.g., Rote v. Sec’y of Health & Hum. Servs., No. 90-036V, 1992 WL 165970, *5 (Cl. Ct. Spec. Mstr. July 1, 1992) (finding the lay witness testimony insufficient to overcome the weight of the contemporaneous medical records); Bergman v. Sec’y of Health & Hum. Servs., No. 90-1252V, 1992 WL 78671, *4 (Cl. Ct. Spec. Mstr. Mar. 31, 1992) (same); Daiza v. Sec’y of Health & Hum. Servs., No. 90-1188V, 1992 WL 59709, *4 (Cl. Ct. Spec. Mstr. Mar. 5, 1992) (same). There is only one reasoned decision discussing damages in a Bell’s palsy in a Vaccine Program case, Sturdevant, 2024 WL 1045145. There, the undersigned awarded $100,000.00 for actual pain and suffering. Id. at *1. In that case, the petitioner was unable to raise his eyebrow and had weakness and difficulty closing his eyelid. Id. at *12. He also had tearing and blurriness in his affected eye. Id. Physical therapy evaluation showed he was unable to close his eye completely and unable to drink from a cup. Id. After six months of physical therapy, Petitioner’s level of function improved to 90% of his baseline, however, he was given a facial disability rating of 45 out of 100. Id. He required eye protection at work and had difficulty with 17 The undersigned previously found that Petitioner’s affidavit stating that he was in good health for the three years prior to his vaccination was inconsistent with his employment records which showed significant leave from employment for health reasons in both 2013 and 2014, prior to vaccination. Lost Earnings Ruling at 36. The undersigned also previously found Petitioner’s employment records evidencing Petitioner’s leave for medical reasons in 2013 and 2014 calls into question Petitioner’s baseline health and mental health condition prior to vaccination. Id. While there is no suggestion that Petitioner had Bell’s palsy prior to vaccination in any of his medical records, these extended leaves call into question the medical/mental health conditions which necessitated leave. Id. They also call into question whether Petitioner filed his complete pre-vaccination medical/mental health care records. Id. at 36-37. In the context of pain and suffering, there are entries in the medical records dating his chronic back pain back to 2004, as well as a reference to stress due to chronic back pain. These references again call into question whether Petitioner filed his complete pre-vaccination records related to his care for anxiety and emotional distress issues. 16 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 17 of 23 hand-eye coordination and drinking liquids. Id. Two years after onset, in 2017, his Bell’s palsy was described as “still quite marked.” Id. A physical examination in 2023, four years later, showed no improvement; the petitioner was still unable to fully close his affected eye and he had decreased contraction of the relevant eyelid muscles. Id. He worried about losing his ability to pass the requisite visual tests to maintain his employment. Id. The award of $100,000.00 acknowledged the petitioner’s long duration of facial disability, worry about job security, and duration of suffering. Id. at *13. Here, Petitioner has not been assessed with a facial disability, he is able to close his eye, and there is no evidence that his eye muscles have been adversely affected. While he was out of work a short period of time, he did not lose his employment due to Bell’s palsy.18 Further, he has had a good physical outcome. Thus, his physical injury is less severe than that experienced by the petitioner in Sturdevant. Regarding emotional distress, based on the contemporaneous medical records, Dr. Kinsbourne’s expert opinion, and the medical literature which discusses the psychological effects of Bell’s palsy, including depression and anxiety, the undersigned finds Petitioner experienced emotional distress due to his Bell’s palsy.19 This finding is taken into consideration in awarding compensation for Petitioner’s pain and suffering. The undersigned has considered the numbers proposed by both parties and agrees that the amount proposed by Respondent is appropriate. Considering the record as a whole, the undersigned finds that $125,000.00 represents a fair, reasonable, and appropriate amount of compensation here for Petitioner’s pain and suffering and emotional distress. Petitioner suffered from Bell’s palsy from October 2014 to 2018, when he was noted to have had an excellent result. Further, his emotional distress due to Bell’s palsy was limited in time to April 2016, after which his emotional distress was attributed to other causes. The award of $125,000.00 acknowledges the severity of Petitioner’s Bell’s palsy and his duration of suffering, as well as the emotional distress he experienced. Petitioner seeks compensation for future pain and suffering, however, this record does not support such an award. As stated above, the records evidence that Petitioner’s emotional distress was not attributed to his Bell’s palsy after April 2016, and he was assessed with an excellent outcome in April 2018. There is no evidence of ongoing pain or emotional distress to warrant an award for future pain and suffering damages. IV. UNREIMBURSABLE EXPENSES Petitioner may also recover “actual unreimbursable expenses incurred before the date of judgment,” including those that “(i) resulted from the vaccine-related injury for which [P]etitioner seeks compensation, (ii) were incurred by or on behalf of the person who suffered such injury, and (iii) were for diagnosis, medical or other remedial care, rehabilitation . . . related 18 See Lost Earnings Ruling at 29-39 (finding Petitioner was not entitled to lost wages after October 17, 2014). 19 See Lost Earnings Ruling at 29-39 (finding Petitioner was not entitled to lost wages after October 17, 2014). 17 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 18 of 23 travel expenses, and facilities determined to be reasonably necessary.” § 15(a)(1)(B). Petitioner bears the burden of proof with respect to each element of compensation requested. Brewer, 1996 WL 147722, at *22-23. In his final request for out-of-pocket expenses, filed September 10, 2025, Petitioner requests reimbursement in the amount of $2,139.95 for costs related to his vaccine injury.20 Pet. Out-of-Pocket Memo. at 2; see also Pet. Ex. 70. The amount requested represents the categories and amounts set forth in the table below, along with the parties’ positions as to the appropriate amounts which should be awarded. Provider/Expense Petitioner Respondent CVS Prescription Expenses $130.20 $42.58 CVS Health Spending Account $955.69 $287.80 Payflex Health Spending Account $500.00 $500.00 HealthOne Behavioral Health $554.06 Explanation of Benefits No proof of actual payments $0.00 TOTAL $2,139.95 $830.80 Pet. Out-of-Pocket Memo. at 2. Each of these categories are addressed in turn. A. CVS Prescription Expenses Petitioner seeks reimbursement for prescriptions costs, as set forth in detail below. Exhibit Citation Date of Provider Prescription Amount Related Service Paid Pet. Ex. 70 at 42 4/26/2017 S.U. Qureshi Sertraline $8.88 Pet. Ex. 70 at 42 4/26/2017 S.U. Qureshi Clonazepam $3.84 Pet. Ex. 70 at 42 5/23/2017 J. Zheng Clonazepam $3.84 Pet. Ex. 70 at 42 7/2/2017 S.U. Qureshi Clonazepam $3.84 Pet. Ex. 70 at 42 6/8/2017 S.U. Qureshi Tramadol $1.52 Pet. Ex. 70 at 42 6/8/2017 Q. Vu Paroxetine $2.63 Pet. Ex. 70 at 42 8/24/2017 A. Rafiq Carisoprodol $6.92 Pet. Ex. 70 at 44 3/11/2020 J. Zheng Clonazepam $1.33 Pet. Ex. 70 at 44 4/28/2020 J. Zheng Clonazepam $1.23 Pet. Ex. 70 at 44 12/9/2019 J. Zheng Zolpidem $14.10 Pet. Ex. 70 at 44 1/14/2020 J. Zheng Zolpidem $0.79 Pet. Ex. 70 at 44 2/10/2020 J. Zheng Zolpidem $0.79 Pet. Ex. 70 at 44 2/24/2020 J. Zheng Zolpidem $1.22 Pet. Ex. 70 at 44 2/19/2020 J. Zheng Sertraline $2.14 Pet. Ex. 70 at 44 3/26/2020 J. Zheng Zolpidem $1.22 Pet. Ex. 70 at 44 4/28/2020 J. Zheng Zolpidem $1.12 20 Petitioner previously asserted he was owed $3,499.00 for out-of-pocket costs. Pet. Ex. 70 at 1. 18 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 19 of 23 Pet. Ex. 70 at 44 5/27/2020 J. Zheng Zolpidem $1.12 Pet. Ex. 70 at 44 6/15/2020 J. Zheng Lorazepam $1.39 Pet. Ex. 70 at 44 7/23/2020 J. Zheng Lorazepam $1.16 Pet. Ex. 70 at 44 8/20/2020 J. Zheng Lorazepam $1.16 Pet. Ex. 70 at 44 6/25/2020 J. Zheng Zolpidem $1.12 Pet. Ex. 70 at 44 7/23/2020 J. Zheng Zolpidem $0.94 Pet. Ex. 70 at 44 8/20/2020 J. Zheng Zolpidem $0.94 Pet. Ex. 70 at 44 6/15/2020 J. Zheng Paroxetine $2.24 Pet. Ex. 70 at 44 7/22/2020 J. Zheng Paroxetine $1.8321 Pet. Ex. 70 at 44 8/20/2020 J. Zheng Paroxetine $1.83 Pet. Ex. 70 at 44 9/14/2020 J. Zheng Clonazepam $1.42 Pet. Ex. 70 at 44 9/14/2020 J. Zheng Zolpidem $0.94 Pet. Ex. 70 at 44 9/24/2020 J. Zheng Zolpidem $0.94 Pet. Ex. 70 at 45 10/21/2020 J. Zheng Clonazepam $1.27 Pet. Ex. 70 at 45 10/21/2020 J. Zheng Paroxetine $2.71 Pet. Ex. 70 at 45 11/21/2020 J. Zheng Zolpidem $0.63 Pet. Ex. 70 at 45 11/21/2020 J. Zheng Clonazepam $1.27 Pet. Ex. 70 at 45 11/19/2020 J. Zheng Sertraline $4.53 Pet. Ex. 70 at 46 10/6/2014 S. Mukardamwala Prednisone $5.47 $5.47 Pet. Ex. 70 at 46 10/6/2014 S. Mukardamwala Valacyclovir $24.53 $24.53 Pet. Ex. 70 at 46 10/6/2014 S. Mukardamwala Cyanocobalamin $10.56 $10.5622 Pet. Ex. 70 at 46 10/6/2014 S. Mukardamwala Lorazepam $0.23 $0.23 Pet. Ex. 70 at 46 10/6/2014 S. Mukardamwala Acetaminophen $1.38 $1.38 Pet. Ex. 70 at 47 2/25/2015 S. Mukardamwala Methocarbamol $0.44 $0.44 Pet. Ex. 70 at 48 7/7/2015 A. Rafiq Carisoprodol $2.03 Pet. Ex. 70 at 48 8/18/2015 A. Rafiq Carisoprodol $4.06 Pet. Ex. 70 at 48 10/11/2015 A. Rafiq Carisoprodol $4.06 Totals23 $135.61 $42.61 Resp. Out-of-Pocket Br. at 4-6; see also Pet. Out-of-Pocket Memo. at 2-12; Pet. Ex. 70 at 42-49. Respondent agrees to reimburse Petitioner for the costs of prescriptions obtained October 6, 2014 and February 25, 2015. Resp. Out-of-Pocket Br. at 4. However, Respondent disagrees that prescriptions from 2017 to 2020 are related to the treatment of Bell’s palsy. Id. 21 According to Petitioner’s documentation, this amount was $1.83, not $1.84 as written in Respondent’s chart. See Resp. Out-of-Pocket Br. at 5; Pet. Out-of-Pocket Memo. at 7. 22 According to Petitioner’s documentation, this amount was $10.56, not $10.58 or $10.53 as written in Respondent’s chart. See Pet. Ex. 70 at 46; Pet. Out-of-Pocket Memo. at 9. 23 Respondent totaled this amount to equal $135.64 and Petitioner totaled this amount to equal $130.20. See Resp. Out-of-Pocket Br. at 6; Pet. Out-of-Pocket Memo. at 2. The undersigned has corrected the chart and the total amounts given the above-mentioned errors. See supra notes 21-22. 19 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 20 of 23 Petitioner received medical treatment for his Bell’s palsy from October 2014 through January 2015, including prescription medications. Additionally, he received psychiatric treatment for anxiety, depression, and PTSD March 2015 through April 2016, which also included treatment with prescription medications. At his visit to Dr. Qureshi on April 13, 2016, Petitioner reported that he was “doing fine.” Pet. Ex. 8 at 8. After April 13, 2016, there is no documentation to suggest that Petitioner sought or received psychiatric care related to his Bell’s palsy. He did not return to see Dr. Qureshi until one year later, on April 26, 2017, and at that time, Petitioner attributed his anxiety to his ongoing divorce. Therefore, the undersigned finds that Petitioner’s prescription costs after April 13, 2016, were not incurred due to his vaccine- related injury and are not reimbursable. Thus, the undersigned agrees with Respondent and finds Petitioner is entitled to reimbursement for this category of expenses in the amount of $42.61. B. CVS Health Spending Account The second category of expenses relates to Petitioner’s CVS Health Spending Account. Petitioner seeks reimbursement of $955.69.24 Pet. Out-of-Pocket Memo. at 2. Respondent agrees to $287.80 of this amount. Resp. Out-of-Pocket Br. at 6. The detailed chart is set forth below. Exhibit Date of Provider Amount Paid Related Citation Service by Card Pet. Ex. 70 at 51 6/7/2017 Texas Behavioral Health $125.00 Pet. Ex. 70 at 51 5/10/2017 Texas Behavioral Health $125.00 Pet. Ex. 70 at 51 5/2/2017 United HealthCare – Monthly $377.50 Premium Pet. Ex. 70 at 52 4/26/2017 Texas Behavioral Health $125.00 Pet. Ex. 70 at 52 4/4/2017 United HealthCare – Monthly $377.50 Premium Pet. Ex. 70 at 52 3/2/2017 United HealthCare – Monthly $377.50 Premium Pet. Ex. 70 at 53 4/13/2016 Houston Psychiatry Health $35.00 Pet. Ex. 70 at 54 1/13/2016 Houston Psychiatry Health $144.72 Pet. Ex. 70 at 54 10/28/2015 Elite Care Emergency Center $100.00 $100.00 (Handwritten for ER treatment 10/5/2014) Pet. Ex. 70 at 54 10/28/2015 Greater Houston Emergency $93.90 $93.90 (Handwritten for ER treatment 10/5/2014) Pet. Ex. 70 at 55 10/20/2015 Houston Psychiatry Health $205.19 Pet. Ex. 70 at 55 7/25/2015 Quest Diagnostics $79.18 24 Petitioner previously included charges for health care premiums and payments to Texas Behavioral Health in this request, as evidenced by Respondent’s chart. See Resp. Out-of-Pocket Br. at 6-7. However, Petitioner excluded health care premium costs from his final out-of-pocket request and moved payments to Texas Behavioral Health to a separate category detailed below. See Pet. Out-of-Pocket Memo. at 1-3. 20 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 21 of 23 Pet. Ex. 70 at 56 7/20/2015 Southeast Medical Group $25.31 Pet. Ex. 70 at 56 7/8/2015 Quest Diagnostics $6.23 Pet. Ex. 70 at 56 7/6/2015 Southeast Medical Group $172.26 Pet. Ex. 70 at 56 7/1/2015 Emergency Center (Handwritten $93.90 $93.90 for ER treatment 10/5/2014) Totals $2,463.19 $287.80 Resp. Out-of-Pocket Br. at 6-7; see also Pet. Out-of-Pocket Memo. at 2-3, 13-20; Pet. Ex. 70 at 50-56. Respondent agrees to reimburse Petitioner for the costs of care on October 5, 2014. Resp. Out-of-Pocket Br. at 6. However, Respondent asserts the other costs do not relate to treatment of Bell’s palsy, or were payment for health insurance premiums, which are considered a routine expense. Id. “Petitioner agree[d] that charges for healthcare premiums are not a reimbursable expense” and removed that request. Pet. Out-of-Pocket Memo. at 2. The undersigned agrees with Respondent that costs for psychiatric care after April 2016, are not related to Petitioner’s Bell’s palsy, and that these costs are therefore not reimbursable. However, the undersigned will reimburse Petitioner for these costs through April 2016 for the reasons explained above. Therefore, in addition to the amounts agreed to by Respondent, the undersigned also finds it reasonable and appropriate to reimburse the costs for Petitioner’s visit to Dr. Qureshi on October 20, 2015 (Houston Psychiatry Health) in the amount of $205.19. The undersigned also finds Petitioner is entitled to reimbursement for his visits to Dr. Qureshi on January 13, 2016 ($144.72) and April 13, 2016 ($35.00). Regarding dates of service on July 6, 8, 20, and 25, 2015, for two visits to Quest Diagnostics and two visits to Southeast Medical Group, it does not appear that medical records for these diagnostic studies or visits to Southeast Medical Group have been filed. Without evidence to establish that these expenses are related, the undersigned is unable to find them reimbursable.25 Therefore, for this category of out-of-pocket expenses, the undersigned awards a total of $672.71, which includes Respondent’s recommended costs ($287.80) as well as the three visits to Dr. Qureshi on October 20, 2015 ($205.19), January 13, 2016 ($144.72), and April 13, 2016 ($35.00). C. Payflex Health Spending Account The third category is for reimbursement of the cost of a brain MRI done October 14, 2014, in the amount of $500.00. Resp. Out-of-Pocket Br. at 7; Pet. Out-of-Pocket Memo. at 3, 23; Pet. Ex. 70 at 58. Respondent agrees to this expense of $500.00. Resp. Out-of-Pocket Br. at 7. The undersigned finds this expense relates to the diagnosis and treatment of Petitioner’s vaccine-related injury and therefore, it is reimbursable. 25 Petitioner did not file an exhibit list to assist in identifying the filed medical records. 21 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 22 of 23 D. HealthOne Behavioral Health (formerly Texas Behavioral Health) The last category of disputed expenses reflects Petitioner’s payments to HealthOne Behavioral Health, formerly Texas Behavioral Health, in the amount of $554.06, for office visits/psychotherapy for treatment of his depression, anxiety, and PTSD. Pet. Out-of-Pocket Memo. at 2-3, 26-32. Petitioner seeks reimbursement for treatments on April 26, 2017 ($125.00), May 10, 2017 ($125.00), June 7, 2017 ($125.00), July 23, 2019 ($79.06), January 10, 2023 ($30.00 no show fee), March 4, 2024 ($55.00), and June 4, 2024 ($15.00). Id. at 26-32. As explained above in the factual summary, Petitioner did not see Dr. Qureshi (or anyone else in his office) after his visit on April 13, 2016, until April 26, 2017, a period of one year. See Pet. Ex. 8 at 8-9. When he returned on April 26, 2017, Petitioner requested medication refills for anxiety due to his ongoing divorce, care of his daughter, and job search. There is no documentation in his records to suggest that Petitioner was experiencing emotional distress at this time due to Bell’s palsy. The same is true for follow up visits throughout 2017. Petitioner returned for follow-up of his anxiety to Dr. Qureshi’s office on May 10, 2017, and saw Jie Zheng, PA. Petitioner was “less depressed and less anxious.” Pet. Ex. 8 at 11. He reported “sleeping better.” Id. He was under stress due to family issues. Id. at 11-12. At the next follow-up visit on June 7, 2017, Petitioner saw Quynh Tu Vu, PA. Id. at 13. Petitioner attributed his anxiety and depression to his ongoing divorce proceeding and child custody trial. Id. Moving forward to 2019, Petitioner returned to the office and was seen by Jie Zheng, PA several times. See Pet. Ex. 46 at 23-44. On July 23, 2019, he was “stressed due to denial of disability application,” “back pain,” and finances. Id. at 38. The undersigned did not find a medical record reflecting a visit to Dr. Tariq’s office on January 10, 2023, which would explain his “no show fee” of $30.00. Medical records for visits on March 4, 2024 and June 4, 2024 were not provided.26 Again, the undersigned finds that Petitioner’s emotional distress due to Bell’s palsy was limited in time from October 2014 to April 2016, after which his emotional distress was attributed to other causes. The records from the visits for which Petitioner’s seeks reimbursement do not provide support that the care and treatment received was for treatment of emotional distress related to Bell’s palsy. Further, there are no records for the dates in 2024 to support reimbursement of costs related to those visits. Thus, the undersigned will not award reimbursement of $554.06 for these visits. 26 Petitioner has not filed any medical records since 2023. 22 Case 1:17-vv-00243-UNJ Document 225 Filed 11/14/25 Page 23 of 23 E. Total Award for Reimbursable Expenses The total award for out-of-pocket expenses is $1,215.32, as follows: Provider/Expense Amount Awarded CVS Prescription Expenses $42.61 CVS Health Spending Account $672.71 Payflex Health Spending Account $500.00 HealthOne Behavioral Health $0.00 TOTAL $1,215.32 V. CONCLUSION In determining an award in this case, the undersigned does not rely on a single decision or case. Rather, the undersigned has reviewed the particular facts and circumstances in this case, giving due consideration to the circumstances and damages in one other case, as well as her knowledge and experience adjudicating similar cases. In light of the above analysis, and in consideration of the record as a whole, the undersigned awards Petitioner: A lump sum payment of $129,346.32, representing $125,000.00 in actual pain and suffering, $3,131.00 in lost wages, and $1,215.32 in past unreimbursable expenses, to be paid through an ACH deposit to Petitioner’s counsel’s IOLTA account for prompt disbursement to Petitioner. In the absence of a motion for review filed pursuant to RCFC Appendix B, the Clerk of the Court SHALL ENTER JUDGMENT herewith.27 IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master 27 Pursuant to Vaccine Rule 11(a), entry of judgment is expedited by the parties’ joint filing of notice renouncing the right to seek review. 23