1

* * * * * * * * * * * * * * * * * * * KATHLEEN SPAIN, * UNPUBLISHED * Petitioner, * No. 18

- 737V v. * * Special Master Dorsey SECRETARY OF HEALTH * AND HUMAN SERVICES, * Petitioner ’ s M o tion for Decision Denying * Compensation; Diphtheria

- Tetanus

- acellular Respondent. * Pertussis (“DTaP”) V accin e ; O ptic N euritis * ( “ ON ” )

. * * * * * * * * * * * * * * * * * * *
Diana L. Stadelnikas , Maglio Ch ristopher and Toale, PA, Sarasota , FL , for petitioner. Glenn Mac L eod , United States Department of Justice, Washington, DC, for respondent.
DECISION 1
On May 24 , 201 8 , Kathleen Spain (“petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“ the Program”) 2 alleging that she received a Diphtheria

- Tetanus

- acellular Pertussis ( “ DT aP ” ) vaccination on May 1 5, 2017 , and ther eafter developed optic neuritis ( “ ON ” )

. Petition at 1

- 2

. The information in the record, however, does not show entitlement to an award under the Program.
On F ebruary 7 , 20 20 , petitioner moved for a decision denying compensation , stating that

“ [p]etitioner has filed all evidence Petitioner believes is relevant to this matter and does not intend to file further evidence in sup port of Petitioner ’ s case, ” and thus petitioner “ w a ives the

1 Because this Decision contains a reas o ned explanat ion for the action in this case, the unders igned is required to post it on the Un ited States Court of Fed eral Cla ims’ website in acc ordance with the E

- Government Act of 2002. 44 U.S

. C. § 3501 note (2012) ( Federal Management and Promotion of E l ectronic Gov ernment Services). This means the Decision will be available to anyone with acce ss to the I nternet. In accordan ce with Vaccine Rul e 18(b), petitioner has 14 days to identify and mo v e to redact medical or other information, the disclosure of w hich would c onstitute an unwarranted invasion of privac y. If, upon review, the undersigned a grees that the iden tifie d materi al fits within this definition, the undersigned will redact such mate r ial from public access.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U .S.C. §§ 30 0 aa
- 10 et seq

. (hereinafter “Vaccine Act” or “the Act”). Hereafter, indivi dual section references will be to 42 U.S.C. § 300aa of the Act. 

# In the Uni ted State s Court of Federal Claims

OFFICE OF S PECIAL M ASTERS Filed: February 7, 20202

IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Special Master right to any he aring or further proceedings in this matter ” a nd “ moves f or a de cision denying compensation. ” Petitioner ’ s Motion for D ecisi on Denying C ompensation a t ¶¶ 1- 3. Petitioner states that she understands that a de cision by the Special Master will re sult in a judg ment against her, and that she h as been advised that such a jud gment will e nd all of he r rig hts under the Vaccine Act. Id. at ¶ 4. Petitioner states that she intends to protect he r right to file a c ivil action. Id. at ¶ 6. To receive compensation under the P rogram, petitioner must prov e e ithe r (1) that she suffered a “ Ta

ble Injury”— i.e., an injury fa lling w ithin the Va cc ine Injury Table

— corresponding to the va ccination, or ( 2) that she suff ered an injury that was actually caused by the vaccination. See §§ 13(a)(1)(A) a nd 11(c)(1). The r ecords submitted by pe titioner show that she does not meet the statut ory re quirement under 42 U.S.C. § 300aa-11(c)(1)(D)(i) to establish entitlement to compensation. The Federal Circuit ha s explained that the eligibility r equirements in Section 11(c) are not mere plea ding r equirements or matters of proo f at trial, but inst ead are “ threshold criteri[a] for se eking e ntry into the compensation p rogram.” Black v. Sec ’ y of Healt h & Huma n Servs., 93 F.3d 781, 785-87 (Fed. Cir. 1996). Accordingly , in light of petitioner ’ s motion and a r eview of the record, the u ndersigned f i nds that petitioner is not entitled to compensation. Thus, this case is dismissed. The Cle rk shall e nter jud gment accordingly.