# In the Unit ed States Court of Federal Claims

OFFICE OF SPECIAL MASTERS

Filed: May 31, 2022

* * * * * * * * * * * * * * *

SHARON KABELITZ

, * No. 1 7

- 466 V

*

Petitioner, * Special Master Sanders

*

v. *

*

SECRETARY OF HEALTH * Dismissal ; Insuf ficient P roof; Influenza

AND HUMAN SERVICES, * ( “ Flu ” ) Vaccine; Shoulder Injury Related to

* Vaccine Administration ( “ SIRVA ” )

*

Respondent. *

* * * * * * * * * * * * * * *

Leah V. Durant , Law Offices of Leah V. Durant, PLLC

, Washington, DC , for Petitioner

. Adriana R. Teitel

, U.S. Department of Justice, Washington, DC, for Respondent.

D ISMISSAL 1

On March 31, 2017, Sharon Kabelitz (“Petitioner”) filed a petition pursuant to the National

Vaccine Injury Compensation Program. 2 Peti tioner alleged that she suffered from a Shoulder

Injury Related to Vaccine Administration (“SIRVA”) as a result of an influenza (“flu”) vaccine

administered on November 5, 2015. Pet. at 1 , ECF No. 1

. The information in the record, however,

does not show entitlement to an award under the Program.

On Febr uary 17, 2022, I issued a Fact Ruling determining that Petitioner ha s not provided

prepond erant evidence that her sho ulder injury mani fested within forty

- eigh t hours after her

vaccination

. Fa ct Ruling at 1, ECF No. 67. On May 19 , 2022 , Petitioner filed a motion for a

decision dismissing h er petition. ECF No. 73

. Petitioner stated that the record is now complete. Id.

at 1

. Respondent does not object to Petitioner’s motion. Id. at 2.

1 This D ecision shall be posted 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). This means the Decision will be available to anyone with access to

the Internet . In accordance with Vaccine Rule 18(b), a party has 14 days to identify and move to delete

medical or other information that satisfies the criteria in § 300aa

- 12(d)(4)(B). Further, consistent with the

rule requirement, a motion for redaction must include a proposed redacted decision. If, upon review, the I

agree that the identified material fits within the requirements of that provision, such material will be

deleted from public access.

2 The Program comprises Part 2 of the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa

10 et seq. (hereinafter “Vaccine Act,” “the Act,” or “the Program”). Hereafter, individual section references

will be to 42 U.S.C. § 300aa o f the Act.2

To receive compensation under the Program, Petitioner must prove either (1) that s he

suffered a “Table Injury”

— i.e., an injury falling within the Vaccine Injury Table

— corresponding

to the vac cination, or (2) that s he suffered an injury that was actually caused by a vaccine. See §§

13(a)(1)(A), 11(c)(1). An examination of the record did not uncover evidence that Petitioner

suffered a “Table Injury.” Further, the record does not contain persuas ive evidence that Petitioner’s

alleged injur ies w ere caused by the flu vaccine

.

Under the Act, petitioners may not be given a Program award based solely on their claims

alone. Rather, the petition must be supported by medical records or the opinion of a competent

physician. § 13(a)(1). In this case, the medical records are insuffici ent to prove Petitioner’s claim

, and at this time, Petitioner has not filed a supportive opinion on causation from an expert witness.

Therefore, this case must be dismissed for insufficient proof. The Clerk shall enter judgment

accordingly

. 3

IT IS SO ORD ERED.

s/Herbrina D. Sanders

Herbrina D. Sanders

Special Master

3 Pursuant to Vacci ne Rule 11(a), entry of judgment is expedited by the parties’ joint filing of a notice

renouncing the right to seek review.