Fricano v. United States

22 Cl. Ct. 796, 1991 U.S. Claims LEXIS 128, 1991 WL 56304
CourtUnited States Court of Claims
DecidedApril 2, 1991
DocketNo. 90-23V
StatusPublished
Cited by13 cases

This text of 22 Cl. Ct. 796 (Fricano v. United States) is published on Counsel Stack Legal Research, covering United States Court of Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fricano v. United States, 22 Cl. Ct. 796, 1991 U.S. Claims LEXIS 128, 1991 WL 56304 (cc 1991).

Opinion

[797]*797OPINION

LYDON, Senior Judge:

This vaccine case is before the court on a motion for review, filed by petitioner on January 7, 1991, challenging the Special Master’s decision to deny her claim for compensation. Petitioner Martha E. Fricano filed a petition for compensation under the National Vaccine Injury Compensation Program, which is part of the National Childhood Vaccine Injury Act of 1986 (Vaccine Act), 42 U.S.C. §§ 300aa-l et seq. (Supp. V 1987), as amended, 42 U.S.C.A. §§ 300aa-l et seq. (West Supp.1990). After careful consideration of the parties’ submissions and oral argument, held on March 22, 1991, the court upholds the decision of the Special Master to deny compensation.

FACTS

The facts as found by the Special Master are as follows. Petitioner Martha Fricano received a rubella vaccination on September 25, 1986, at the age of twenty-eight. On or about October 4, 1986, petitioner began to experience nonspecific aches and pains throughout her head and body. On or about October 22, 1986, petitioner’s left knee became swollen and painful, so she consulted with emergency room physicians at the hospital where she worked as a secretary. On October 31, 1986, petitioner began seeing Dr. Loren Runge, a board-certified rheumatologist, for progressive soreness in her knuckles and knees. Dr. Runge noted definite swelling in both knees on that date. Petitioner continued to see Dr. Runge on a regular basis, and he continued to note some swelling in her wrists and knees through March of 1987, a period of approximately five months. On subsequent visits after that date to the present, petitioner continued to complain of discomfort in her joints, but Dr. Runge generally has not noted any visible swelling.1

Prior to October of 1986, petitioner was employed as a secretary, but because of her joint problems, petitioner avers that she was unable to work for over two years after her vaccination, from October of 1986 until January of 1989, when she resumed part-time secretarial work. Petitioner claims she was unable to care for her children or perform household duties during this time, so she asked her mother-in-law to assist her with these tasks.

Petitioner filed a petition for compensation under the Vaccine Act on January 8, 1990. Petitioner’s past medical expenses have been covered by workers’ compensation, and presumably her future expenses, if any, will be covered as well, since petitioner seeks only compensation for lost earnings during the two years following her vaccination. In addition to lost earnings, petitioner seeks compensation for pain and suffering, for a total of $30,000.

The Special Master conducted two separate evidentiary hearings, on August 31, 1990 and October 16, 1990, and filed his decision on December 6, 1990. In his decision, the Special Master determined that petitioner was not entitled to an award under the Vaccine Act because she failed to prove that the ill effects of her vaccine-caused injury lasted for more than six months, as required by section 300aa-ll(c)(l)(D)(i). The Special Master noted that the expert medical witnesses for both parties agreed that petitioner’s initial reaction was likely a typical case of “rubella arthritis” caused by the rubella vaccine. The medical experts disagreed, however, as to whether petitioner’s continuing joint pain beyond six months after the date of the vaccination was caused by the vaccine. Petitioner’s expert Dr. Runge, the treating physician, concluded that petitioner’s continuing joint pain was caused by the rubella vaccine. The Special Master discounted his testimony, however, because the Special Master found Dr. Runge’s conclusion to be based almost entirely on the temporal relationship between the vaccination and petitioner’s continuing joint pain. The Special Master found that “there is essentially no [798]*798[medical] evidence that the rubella vaccine causes problems lasting longer [than a couple of months],” and he concluded that Dr. Runge’s medical opinion as to the cause of petitioner’s continuing joint pain was not supported by scientific studies. The Special Master agreed with respondent’s medical expert, Dr. Kredich, who concluded that “there simply is no reasonable ground for identifying a cause for petitioner’s ongoing pain,” and that petitioner is likely suffering from “musculoskeletal pain syndrome” of unknown origin.

As a result of the Special Master’s decision to deny petitioner’s claim for compensation, petitioner filed on January 7,1991, a motion for review, pursuant to Appendix J of the Rules of the United States Claims Court (RUSCC).

1. Standard of Review

When reviewing a Special Master’s decision under the Vaccine Act, as amended in 1989, the court is bound to uphold the decision below unless the court finds the decision “to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 42 U.S.C.A. § 300aa-12(e)(2)(B); RUSCC Appendix J; Hines v. Secretary of the Dep’t of Health and Human Servs., 21 Cl.Ct. 634, 637 (1990). The Supreme Court has explained that under the “arbitrary and capricious” standard,

the scope of review is a narrow one whereby a reviewing court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment____ The court is not empowered to substitute its judgment for that of the [decision maker]. Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416, 91 S.Ct. 814, 824, 28 L.Ed.2d 136 (1971). The [decision maker] must articulate a “rational connection between the facts found and the choice made.” Burlington Truck Lines v. United States, 371 U.S. 156, 168, 83 S.Ct. 239, 246, 9 L.Ed.2d 207 (1962).

Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc., 419 U.S. 281, 285, 95 S.Ct. 438, 441, 42 L.Ed.2d 447 (1974). In a later case, the Supreme Court set forth some factors that may give rise to arbitrary and capricious agency decisions:

[A]n agency [decision] would be arbitrary and capricious if the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence ..., or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n v. State Farm Mutual Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 2866, 77 L.Ed.2d 443 (1983). See also Hyundai Elecs. Indus. Co. v. United States Int’l Trade Comm’n, 899 F.2d 1204, 1209 (Fed.Cir.1990) (touchstone of arbitrary, capricious, abuse of discretion standard of review is rationality, i.e., consideration of relevant factors and absence of clear error of judgment); Hines, supra, 21 Cl.Ct. at 638; Carter v. Secretary of the Dep’t of Health and Human Servs., 21 Cl.Ct. 651, 653 (1990).

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