Webb v. Secretary of Health and Human Services

In the United States Court of Federal Claims

No. 15-803V

(Filed under seal July 29, 2021)

(Reissued September 7, 2021)

NOT FOR PUBLICATION

RR KERR AERA KR KARA RRA OK

SAMUEL WEBB,

Petitioner,

Vv.

SECRETARY OF HEALTH

AND HUMAN SERVICES,

Respondent.

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kREKR RE K RE RAEKKEKA RE KRRRRE

MEMORANDUM OPINION AND ORDER

WOLSKI, Senior Judge.

Petitioner Samuel Webb, representing himself, seeks review of a special

master’s decision dismissing his vaccine injury petition brought under the National

Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 through

34 (2018) (the Vaccine Act). Petitioner objects to the decision, arguing that his due

process rights were violated when the Special Master did not hold a second

preliminary status conference and did not strike references to Mr. Webb’s criminal

conviction and personal issues from a court filing, see Mot. for Review, ECF No. 96,

at 2, 3-5, 9-11, and that the Special Master incorrectly weighed the evidence 1n

determining petitioner's injury predated his vaccination, id. at 2, 6-8, 11-19. But,

as explained below, the Court concludes that the Special Master did not abuse his

discretion, err as to matters of law, or act arbitrarily or capriciously or otherwise

contrary to law, and thus the decision of the Special Master is SUSTAINED.

* As neither party has requested redactions pursuant to Rule 18(b) of Appendix B to

the Rules of the United States Court of Federal Claims (Vaccine Rules), the opinion

is released for public access.

1. BACKGROUND

A. Vaccination and Diagnosis of Bell’s Palsy

Petitioner, an inmate at the Arizona State Prison Complex in Tucson, seeks

compensation for pain and paralysis of the left side of his face, which he associates

with a seasonal influenza (flu) shot administered on November 20, 2012. See Am.

Pet., ECF No. 79, at 2, 4-7; Pet., ECF No. 1, at 2, 5-6. This condition, marked by

pain in the neck and face and facial numbness resulting in drooping around the eye,

initially surfaced on the right side of Mr. Webb’s face, necessitating a hospital visit

on November 5, 2011. See Pet’r's Ex. 3, ECF No, 9-3, at 44. The ailment was

diagnosed as Bell’s palsy. Id. Two weeks later, petitioner received the flu

vaccination for 2011, see Am. Pet. at 11; Pet, at 1-2, and over the next several

months his condition improved, see Pet’r’s Ex, 3 at 36, 38. In the fall of 2012, Mr.

Webb made multiple routine visits to the health center of the Maricopa County jail

where he was being held, see Am. Pet. at 3-4, for blood pressure monitoring and the

dvawing of blood, Pet’y’s Ex. 3 at 33. During this same time period, Mr. Webb

submitted multiple health needs requests (HNRs) related to his Bell’s palsy. See

Pet’r’s Ex. 9, ECF No. 37-1, at 1, 2, 4 Among other things, these requests included

tape for his eye, which is apparently used by palsy sufferers to keep the affected eye

shut to aid with sleep. See id. He made the first of these requests on October 19,

2012, for an unspecified eye. Id. at 4. On October 24, 2012, Mr. Webb made

another request, this time for tape for “eyes” in the plural. fd. at 2. And finally, he

made another request on October 29, 2012, again for tape for an unspecified eye.

Id. at 1.

Mister Webb received his 2012 seasonal flu vaccine on November 20, 2012.

Ex. 3at 8-9. Ten days later, on November 30, 2012, he visited the health center

again for a scheduled appointment. /d. at 31. The medical record created by the

physician assistant who attended to Mr. Webb indicates that petitioner reported

that he had developed Bell’s palsy on the left side of his face beginning September

21, 2012, and that the Bell’s palsy on the right side of his face had resolved. Id.

‘he record notes that Mr. Webb explained he “did not put [an] ETNR in because he

thought there is nothing that could be done,” and that he believed his Bell's palsy

was caused by stress, referencing his September 5, 2012 trial date. Id. Petitioner

reportedly noted an improvement sn the condition of the left side of his face since

September, and the record indicates that “consistent [with] Bell's palsy,” Mr. Webb

had a “droop” and “inability to smile” on his left side. Id. Petitioner's guilty verdict

was rendered on September 5, 2012, see Pet’y’s Ex. 13 at 1, and the medical record

from the November 30, 2012 appointment noted Mr, Webb would be sentenced to

the state facility on December 5, 2012, Pet’r’s Ex. 3 at 31; see also Pet'r's Ex. 13 at

2.1

The following month, Mr. Webb was transferred to the state prison facility.

The medical record from his intake processing, dated December 10, 2012, noted My.

Webb’s Bell’s palsy, and stated he was “unable to close l[eft] eyelid.” Pet’r’s Ex. 5 at

189; see also id, at 37, 412 The medical records from the state prison show his

Bell’s palsy persisting, yet somewhat improving over time, Over the next two and

one-half years, he continued to use tape and artificial tears for his eyes. See, €.g.,

Pet’r’s Ex. 5 at 298, 302 (January 9013 eye drops requests), 184-85 (requests for

tape due to Bell’s palsy in March, April and June 9013), 181 Sept. 24, 2013 request

for tape and eye drops), 983 (Jan. 26, 2014 tape vequest), 277 (Mar. 11, 2014 eye

drops request), 276 (Apr. 18, 2014 tape request), 273 July 22, 2014 tape request),

10 (Nov. 6, 2014 tape request), 266-68 (December 2014 eye drops requests), 265

(Feb. 5, 2015 tape request), 264 (Apr. 29, 2015 tape request). In March 2013, Mr.

Webb exhibited a “slight droop to his [right] cheek [and] jaw.” Jd. at 185; Ex. 5,

ECF No. 16-2, at 32. One year later, he reported “slight pain in {his} face” and

“seant facial paralysis.” Jd. at 178. Seventeen months later, a nurse’s report from

August 29, 2015, indicated that Mr. Webb suffered “facial deficits” and “bilateral

bells [sic] palsy,” with “mouth droop on left side of face” but no “weakness in

forehead or eyelids.” Pet'r’s Ex. 5 at 6.

B. Proceedings Before the Special Master

On July 29, 2015, Mr. Webb, represented by counsel, filed his initial petition

for compensation under the Vaccine Act. See generally Pet., ECF No. 1. In this

petition, Mr. Webb alleged that several days after he received the November 20,

2012 flu vaccination, he began to experience Bell's palsy symptoms on the left side

of his face. Id. [ 17. Petitioner contended this vaccination “triggered facial nerve

paralysis, consisting of facial palsy and pain on” the left side of his face. Id. 4 35.

Accompanying the petition was an affidavit from Mr. Webb, in which he stated that

his left side Bell’s palsy symptoms began several days after his 2012 flu shot, and

that these symptoms “prompted [him] to fill out a health request with the

Correctional Health Services, and [he] was seen on November 30, 2012 with

complaints about paralysis and pain on. the left side of fhis] face.” Pet’r's Ex. 1, ECF

No. 9-1, 17-18.

The Special Master, on August 4, 2015, issued an order, giving Mr. Webb

thirty days to file any outstanding medical records, affidavits, and a statement of

ee

i Petitioner’s Exhibit 13 is found on pages seven and eight of ECF No. 76.

2 This exhibit is split between ECF No. 16-1 and 16-2.

3.

completion. Order, ECF No. 6. Over the course of several months Mr. Webb filed

multiple motions seeking an enlargement of the time period in which to comply with

the order, which the Special Master subsequently granted. See ECF Nos. 10-15,

17-19, 21-22. Mister Webb ultimately filed a statement of completion on January

19, 2016. See ECF No. 24. On March 21, 2016, the Secretary of Health and Human

Services (Secretary) determined that the record was largely complete, with the

possible exception of neurological test records. See ECF No. 27. Two days later,

petitioner confirmed that a neurological evaluation had not been conducted. ECF

No. 30. Pursuant to the Vaccine Rules, the Secretary subsequently filed his Rule

A(c) Report. See Resp’t’s Rep., ECF No. 32.

In this report, the Secretary maintained that Mr. Webb failed to meet any of

the three prongs that must be shown to support compensation under the Federal

Circuit’s opinion in Althen v. Sec’y of Health & Human Serus., 418 F.3d 1274, 1278

(Fed. Cir, 2005). See Resp’t’s Rep. at 8, 10-12. First, the Secretary noted that there

was no expert report, medical record, or treating physician’s opinion in the record

that causally connected Mr. Webb’s Bell’s palsy to any flu vaccination. Id. at 10. In

this regard, the Secretary cited a 2012 Institute of Medicine report, the relevant

portion of which was subsequently filed ag respondent’s Exhibit A, see ECF No. 34-

1, which concluded “the evidence favors rejection of a causal relationship between

inactivated influenza vaccine and Bell’s palsy.” Resp’t’s Rep. at 10 (quoting INST. OF

MED., ADVERSE EFFECTS OF VACCINES: EVIDENCE AND CASUALTY 337 (Kathleen

Stratton et al. eds., 2012) (cleaned up)). And second, the Secretary contended Mr.

Webb could show neither a logical sequence of cause and effect nor the appropriate

temporal relationship between the shot and the symptoms, due to the medical

record reporting that the left-sided Bell’s palsy manifested two months before the

November 20, 2012 flu vaccination. Jd. at 11 (citing Pet’r’s Ex. 3at 31). The

Secretary requested that the Special Master dismiss the petition. /d. at 12.

Pursuant to Vaccine Rule 5, the parties participated in the preliminary

status conference on April 26, 2016, During that status conference, Mr. Webb's

counsel requested thirty days in which to consult with petitioner to consider any

next steps. See ECF No. 33. Petitioner obtained additional time to gather and file

additional medical records from the county jail, see Order, ECF No. 36, and a second

extension to provide time to confer with counsel before filing a status report, see

ECF No. 39. Rather than filing a status report, however, petitioner's attorney

moved instead to withdraw from the case. See ECF No. 40. Five days later, the

second status conference in the case was held. See ECF No. 41. On October 18,

9016, Mr. Webb filed a motion for leave to amend his original petition. See Mot. for

Leave to File Am. Pet., ECF No. 48. Shortly after a third status conference was

held, in orders issued on November 2 and November 38, 2016, the Special Master

granted the motion of petitioner's counsel to withdraw and the motion by Mi. Webb

for leave to file an amended petition. See ECF Nos, 51, 52. In the latter, the

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Special Master emphasized the contention of the Secretary that “the medical

records showed that Mr. Webb reported symptoms of Bell’s palsy before the

administration of the vaccine.” ECF No. 52, at 1 (citing Resp’t’s Rep. at 8).

Mister Webb then filed multiple motions to extend the deadline for filing his

amended petition. See ECF Nos. 55, 58, 65. On August 9, 2017, petitioner filed

three motions to exclude or strike from the record references to his criminal record

and some of his personal issues, see ECF Nos. 71-73, which the Special Master |

denied as unnecessary given the lack of a jury, see ECE No. 82, On September 5,

2017, Mr. Webb filed another affidavit, in which he contends that the medical

record from November 30, 2012, contained mistakes regarding his report of left-

sided palsy symptoms, and in which he identifies other medical records he believes

conflict with that record. See Pet’r’s Ex. 14 J 5-82

Petitioner eventually filed an amended petition on October 4,2017, See Am.

Pet. In the amended petition, Mr. Webb alleges that the November 20, 2012 flu

shot caused an anaphylactic reaction, “swelling and pain in the cranial nerves 1n

the left axis of the head/neck,” resulting in “bilateral trigeminal neuralgia,

fibromyalgia, and a chronic inflam[mJatory demyelinating polyneuropathy (CIDP)

with paresthesia.” Am. Pet. at 2. Based on his own medical research, he also

suggests that the vaccination caused Guillain-Barré syndrome (GBS). fd. { 14-

15, 23. That same day, petitioner filed a statement that “all supporting exhibits or

relevant records in support of the Amended Petition” had been filed. ECF No. 89.4

A fourth status conference in this matter was held on March 20, 2018, during

which Mr. Webb was granted leave to file additional exhibits in support of his claim,

and the Secretary was ordered to file a supplemental Rule 4 report. See ECF No.

87, On April 4, 2018, Mr. Webb filed his Exhibit 24, containing two medical articles

on Bell’s palsy and flu vaccine information from the Centers for Disease Control and

Prevention. See ECF No. 88. ‘wo months later, on June 4, 2018, the Secretary

simultaneously filed a supplemental Rule 4(c) Report and a motion to dismiss the

petition. Resp’t’s Suppl. Rule A(c) Rep. (Suppl. Rep.), ECF No. 89; Resp’t’s Mot. to

Dismiss (Resp’t’s Mot.), ECF No. 90. The Secretary maintained that “[pJetitioner’s

entire case rests upon his own assertions, which are contradicted by the medical

records and not supported by a qualified medical expert.” See Suppl. Rep. at 4. The

Secretary further noted that the additional conditions alleged in the Amended

ee

3 This affidavit is found on pages ten through thirteen of ECF No. 76.

4 Filed two days earlier, but apparently submitted contemporaneously with the

Amended Petition, was Mr. Webb’s “Theory of Causation” paper, which includes

another affidavit and the medical research he gathered in support of his petition.

See ECF No. 78.

Petition, such as GBS and CIDP, were not diagnosed by any physicians, and argued

that contemporaneous medical records showed that the onset of My. Webb’s left-

sided Bell’s palsy happened before he received the flu shot in November 2012. Id. at

45. With nobody but petitioner himself asserting a causal connection between the

vaccination and his condition, and record evidence showing the vaccine post-dated

the symptoms, the Secretary requested that the petition be dismissed. See id. at 4—

6; Resp’t’s Mot. at 1.

Petitioner filed a response to the Secretary's motion, arguing that the medical

record showing the September 2012 onset of left-sided Bell’s palsy was “incorrectly

recorded,” had been explained in his subsequent affidavit, and was contradicted by

other records which did not mention the condition. Resp. to Mot. to Dismiss, ECF

No, 91, at 2-3 (quoting 42 U.S.C. § 300aa-13(b)(2) and citing, inter alia, Pet's Ex. 3

at 33; Pet’r’s Ex. 9 at 7; Pet’r’s Ex. 14). Petitioner also noted that he was unable to

see a neurologist due to his prison confinement and maintained that he has

provided a logical theory of causation supported by credible medical literature. fd.

at 3-6. He also pointed to vecords containing his self-report that he was allergic to

the flu vaccine. Id. at 6 (citing Pet’r’s Ex. 29 at 38: Pet’r’s Ex. 23 at 3).

The Special Master granted the Secretary's motion to dismiss the petition

under Vaccine Rule 8(d). See ECF No. 95 at 1, 17; Webb v. Sec’y of Health & Human

Serus., No. 15-803V, 2018 WL 5292226, at *1, *10 (Fed. Cl. Spec. Mstr. Sept. 27,

2018). After closely reviewing the relevant medical records for the period from

September to December 2012 and the affidavits filed by Mr. Webb, see ECF No. 95

at 4-8; Webb, 2018 WL 5992226, at *3-4, the Special Master concluded that the

November 30, 2012 medical record was the most reliable evidence concerning the

onset of Mr. Webb’s left-sided Bell’s palsy, ECF No. 95 at 11; 2018 WL 5292226, at

*7. Despite Mr. Webb's characterization of it as a “medical records blunder,’ Pet's

Ex. 14 at 4, the Special Master found this particular record to be “precise, cogent,

and clear,” “relatively complete and comprehensive,” “internally consistent,” and

containing “a narrative of events that is tied to other events in Mr. Webb’s life,”

ECF No. 95 at 11; 2018 WL 5292226, at *7.

The Special Master was not persuaded that the author of the medical record

mistakenly recorded Mr. Webb’s reported onset to be September rather than

November, as the record used both the number “9” and abbreviation “Sept.” to refer

to the month when left-sided Bell’s palsy began, and also associated the condition

with stress resulting from Mr. Webb’s September 5, 2012 guilty verdict. ECF No.

95 at 12; 2018 WL 5999926, at *7. The Special Master also found that the

September 21, 2012 date of onset was not undermined by the lack of any reference

to the condition in medical records from October and November 2012, as these were

for specific tests unrelated to the condition, and Mr. Webb’s own testimony was that

he did not report the condition “because there was nothing that could be done.”

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ECF No, 95 at 12 (quoting Pet’r’s Ex. 14 | 2); 2018 WL 5292226, at *7 (same). The

Special Master also discussed the minimal evidentiary value of Mr. Webb's HNRs

requesting tape to shut closed either an “eye” or “eyes,” and petitioner's mistaken

recollection that the November 30, 2012 appointment was requested because of the

problems with the left side of face, rather than being a previously-scheduled visit for

hypertension monitoring. ECF No. 95 at 12-13; 2018 WL 5292226, at *7-8.

Because he found Mr. Webb’s symptoms predated the November 20, 2012 flu

vaccine, the Special Master determined that petitioner's other claims could not

succeed, and he also found them unsupported by the medical records. ECF No. 95

at 13-15; 2018 WL 5292226, at *g_9 The Special Master also explained why he

determined a hearing was not necessary in the case, as “the documentary record

appears complete,” the discrepancies in Mr. Webb’s affidavits “lessen the likelihood

of receiving reliable testimony” from him orally, and no potential third-party

witnesses had been identified. ECF No. 95 at 16-17; 2018 WL 5292226, at *10.

C. Petitioner’s Motion for Review

Mister Webb timely moved for a veview of the Special Master's decision by

this Court. See Mot. for Review, ECF No. 96. He argues that his due process rights

were violated because the Special Master was prejudiced by references in the

Secretary's Vaccine Rule 4(c) Report to one of Mr. Webb’s personal issues and to the

crime of which Mr. Webb was convicted. See Mot. for Review at 2-5, 9-10.

Petitioner notes the Special Master's use of the word “opportunistic” to describe Mr.

Webb’s affidavits, and contends this reflects prejudice. See id. at 3-4, 6, 10, 19.

And he argues that the filing of the Secretary's supplemental Rule 4(c) Report

entitled him to a second V accine Rule 5 preliminary status conference, at which he

could have addressed any adverse tentative impressions held by the Special Master.

See id. at 2-3, 10-11, 19. Petitioner also objects to the manner in which the Special

Master weighed the evidence in the record concerning the onset of the alleged

vaccine injury, and explains the weight he believes should have been given to the

various records, including his affidavits. See id. at 11-19.

The Secretary filed a timely response to the motion for review. See Resp’t’s

Resp., ECF No. 102. He argued that the court cannot re-weigh the evidence, id. at 7

(citing Portier v. Sec’y of Health & Human Servs., 663 F.3d 1242, 1249 (Fed. Cir.

2011), and that the Special Master's explanation of the onset determination was

thorough and not arbitrary, id. at 7-8. Respondent also noted that the Special

Master did not rely on the allegedly prejudicial information about Mr. Webb and

used the word “opportunistic” 1 comparing petitioner's affidavits and the medical

records. Id. at 8-9. The Secretary contended that a second Rule 5 conference was

not legally required and was not shown to be necessary for due process, as Mr.

Webb filed a response to the motion to dismiss and participated in one status

conference himself and three others through counsel. Id. at 9-10.

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In light of his pro se status, Mr. Webb was permitted to file a reply anda

supplement to the yeply in support of his motion for review. See ECF No. 105. In

his reply, petitioner maintains that the Amended Complaint was a supplemental

pleading under Rule 15(d) of the Rules of the United States Court of Fedexal Claims

(RCFC), and that by allowing this filing and then ordering a supplemental Rule 4(c)

Report, the Special Master made a “procedural commitment” entailing another

Vaccine Rule 5 conference, to which the Secretary did not object. Pet’r's Reply, ECF

No. 104, at 3-4. He also argued that the Special Master's findings should receive no

deference because a second Vaccine Rule 5 conference was not held, id. at 6, and

highlighted an October 9, 2012 medical record which he contends proves he did not

suffer the left-sided facial palsy symptoms prior to the vaccination, id. at 6-7 (citing

Pet’r’s Ex. 3 at 33). He revisited this medical! record in the supplement to his reply,

noting that the registered nurse who attended to him made the objective

observation that Mr. Webb did not appear to be in distress. Sur-reply, ECF No. 106,

at 2; see also Pet’r’s Ex. 3 at 33. Petitioner contends this record thus “negates the

existence” of left-sided facial palsy at that time. Id. (citing Murphy v. Sec’y of

Health & Human Servs., 93 CL. Ct. 726, 733 (1991), aff'd, 968 F.2d 1226 (Fed. Cir.

1992)). In his supplemental response, the Secretary noted that the Special Master

considered the October 9, 9012 vecord to be “relevant and probative” and explained

how the record factored into the decision. Resp’t’s Suppl. Resp., ECF No. 107, at 1.6

II]. DISCUSSION

A. Legal Standard

Under the Vaccine Act, a special master makes compensation determinations

via findings based “on the record as a whole” and “a preponderance of the evidence.”

A, U.S.C. § 300aa-18(a) 1) (2018). “The special master or court may not make such

a finding based on the claims of a petitioner alone, unsubstantiated by medical

records or by medical opinion.” Id. (flush text). A special master must consider all

the “relevant medical and scientific evidence contained in the record,” including any

“diagnosis, conclusion, medical judgment, or autopsy ... regarding the nature,

causation, and aggravation of the petitioner's illness, disability, injury, condition, or

death” and “the results of any diagnostic or evaluative test which are contained 1n

the record and the summaries and conclusions.” Id. § 300aa-13(b)(1). The Act

further specifies that “fajny such diagnosis, conclusion, judgment, test result,

report, or summary shall not be binding on the special master or court.” Id. A

special master is entrusted with evaluating the “weight to be afforded to any” of

these sources of information. fd. A special master’s “assessments of the credibility

ae

5 The Court is using the internal pagination of this paper, not the ECF pagination.

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of the witnesses” are “virtually unchallengeable on appeal.” Lampe v. Sec’y of

Health & Human Servs., 919 F.3d 1357, 13862 (Fed. Cir. 2.000).

Medical records “warrant consideration as trustworthy evidence.” Cucuras v.

Sec’y of Dep’t of Health & Human Servs., 993 F.2d 1525, 1528 (Fed. Cir. 1993).

These records are “senerally contemporaneous to the medical events,” and “aecuracy

has an extra premium” because a patient's proper treatment is “hanging in the

balance.” Id. Therefore, “it [is] not erroneous to give greater weight to

contemporaneous medical records than to later, contradictory testimony.” Aurby v.

Sec’y of Health & Human Servs., 997 F.3d 1378, 1882 (Fed. Cir. 2021).

In reviewing a special master’s decision, our court may “set aside any

findings of fact or conclusion of law of the special master found to be arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law and issue

its own findings of fact and conclusions of law.” 42 U.S.C. § 300aa-12(e)(2)(B)

(2018). Ifthe special master’s findings of fact and conclusions of law are not

arbitrary and are in accordance with the law, the Court must sustain the special

master’s decision. Turner v. Sec’y of Health & Human Servs., 268 F.3d 1334, 1337

(Fed. Cir. 2001). Findings of fact are to be veviewed under the “arbitrary and

capricious standard: legal questions are to be reviewed under the “not in

accordance with law” standard; and an abuse of discretion standard 1s used for

discretionary rulings. See Munn v. Sec’y of Dep't of Health & Human Servs., 970

¥.2d 863, 870 n.10 (Fed. Cir, 1992). With respect to the arbitrary and capricious

review standard, “no uniform definition of this standard has emerged,” but it is “a

highly deferential standard of yeview” such that “[iJf the special master has

considered the relevant evidence of record, drawn plausible inferences and

articulated a rational basis for the decision, reversible error will be extremely

difficult to demonstrate.” Hines ex rel. Sevier v. Sec’y of Dept of Health & Human

Servs., 940 F.2d 1518, 1527-28 (Fed. Cir, 1991).

B. Analysis

1. Petitioner Was Not Denied Due Precess

Petitioner raises two objections to the Special Master's proceedings on due

process erounds. See Mot. for Review at 2-6, 9-1 1, 19; Pet’r’s Reply at 3-6, The

first ground is that the Special Master denied Mr. Webb’s motions to remove

references to a personal issue of petitioner and to the specific crime Mr. Webb was

found guilty of committing. Mot. for Review at 2-5, 9-10. The Court fails to see

how the Special Mastev’s denial of these motions could have possibly been

prejudicial to Mr. Webb. In the order denying the motions, the Special Master

expressly determined that the references Mr. Webb sought to exclude were “not, at

all, probative to the question of whether he is entitled to compensation in this

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matter.” ECE No. 82 at 1. He then explained that the absence of a jury in these

proceedings made exclusion of the documents unnecessary, citing an appellate

decision that noted that “in a bench trial . . . fal judge can also exclude... improper

inferences from his mind in reaching a decision.” Id. at 1-2 (quoting Gulf States

Utils. Co. v. Ecodyne Corp., 635 F.2d 517, 519 (6th Cr. 1981)). And indeed, the

decision dismissing the petition does not mention either of these matters at all,

much less rely upon them in judging petitioner's case. See ECE No. 95 at 1-17;

Webb, 2018 WL 5292226, at *1-10. Finally, no prejudice or bias may rightly be

inferred from the comment of the Special Master that “Mr. Webb’s statements have

been internally inconsistent and appear opportunistic insofar as the averments

have, over time, shifted to comport with the medical records.” ECF No. 99 at 16;

Webb, 2018 WL 5992226, at *10. Rather than reflect a consideration of the

information Mr. Webb sought to exclude, this statement is based on the

discrepancies between the contemporaneous medical records and the varying claims

made in the affidavits created by petitioner years later. See ECF No. 95 at 4-8, 11-

13: Webb, 2018 WL 5292226, at “3-4, *97_8 The Special Master's refusal to exclude

certain information from the vecord was not an abuse of discretion or contrary to

law, did not violate due process, and was irrelevant to his decision.

Petitioner's second ground for a due process violation is that the Special

Master did not hold a second preliminary status conference under Vaccine Rule 5,

following the filing of the Secretary's supplemental Vaccine Rule 4(c) report. See

Mot. for Review at 9-11. Petitioner maintains he had a vight to such a conference,

that he could have used the opportunity to dispel any misconceptions of the Special

Master, and that without such a conference the decision dismissing the case was

igsued without warning. Td. at 2, 9-11, 19. But the Vaccine Rules do not expressly

require a second preliminary status conference in the wake of supplemental Vaccine

Rule 4(c) report, see Vaccine Rules 4-8, and thus this matter comes under the

Special Master's power to conduct all proceedings, under which he has “wide

discretion,” Burns by Burns v. Sec’y of Dep’t of Health & Human Servs., 3 F.3d 415,

A17 (Fed. Cir. 1993) (citing Vaccine Rule 3(b)). To be sure, this discretion must be

exercised consistent with the due process obligation to provide “notice and an

effective opportunity to be heard at a meaningful time and in a meaningful

manner.” Campbell ex rel. Campbell v. Sec’y of Health & Human Servs., 69 Fed. Cl.

775, 778 (2006) (citing, unter alia, Cleveland Bd. of Educ. v. Loudermill, 470 U.S.

532, 542 (1985)). Under the circumstances, the Court cannot find this discretion to

have been abused by the Special Master.

In the first place, the basis for the decision to dismiss the petition was the

medical record dated November 30, 2012, which indicated that Mr. Webb’s left-sided

facial palsy had an onset predating the November 20, 2012 vaccination. See ECF

No. 95 at 11-13; Webb, 9018 WL 5292226, at *7_2. This issue was addressed in the

Secretary's initial Rule 4{c) Report, see ECF No. 32 at 5, 11, and thus would have

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been addressed at the Vaccine Rule 5 conference that was held, on April 26, 2016,

see ECF No. 33. Second, a month after this conference, petitioner's then-counsel

informed the Special Master that Mr. Webb was “adamant that the [medical]

history 18 incorrect,” ECE No. 35 at 1, and Mr. Webb ultimately filed two separate

affidavits giving his yersion of the relevant events, see Pet’r’s nx. 14, ECF No. 76 at

10-13; Pet’r’s Ex. 10, ECF No. 79 at 16-20. Third, to the extent matters raised in

the supplemental Rule 4(c) Report were pertinent to the motion to dismiss the

petition, Mr. Webb was given the opportunity to address these in his response to

that motion. See ECF No. 91 at 1-6. Thus, petitioner was amply afforded notice

and a meaningful opportunity to be heard concerning the dispositive issue of the

onset of his condition---including three status conferences with his previous counsel

and one in which he personally participated. See ECF Nos. 38, 41, 51, 87.

Moreover, the Special Master had no obligation to hold a hearing or to receive

oral testimony from Mr. Webb. See K.L. v. Sec’y of Health & Human Servs., 134

Fed. Cl. 579, 605 (2017). The Vaccine Act does not mandate hearings, but rather

provides that “ijn conducting a proceeding on a petition a special master... may

conduct such hearings as may be reasonable and necessary.” 42 U.S.C. § 300aa-

12(d)(3)(B)(¥). Vaccine Rule 8 grants a special master broad discretion in how he

runs proceedings, and expressly provides he “may decide a case on the basis of

written submissions without conducting an evidentiary hearing.” V accine Rule 8(d).

Thus, the Federal Circuit has concluded that “[t]he decision to hold an evidentiary

hearing is statutorily committed to the discretion of the Special Master.” D’Tiole v.

Sec'y of Health & Human Servs., 726 F. App'x 809, 812 (Fed, Cir. 9018) (citing 42

U.S.C. § 300aa-12(d)(3)(B)()). Here, the Special Master adequately explained his

exercise of this discretion, as the documentary record was complete, Mr. Webb’s

affidavits obviated the need to hear his oral testimony, and no third-party witnesses

were identified by petitioner. ECF No. 95 at 16-17; Webb, 2018 WL 5292226, at

*10. The proceedings before the Special Master thus afforded Mr. Webb ali the

process he was due, and no discretion was abused.

2. The Special Master Did Not Act Arbitrarily or Capriciously

Petitioner’s second objection to the decision under review 1s that the Special

Master did not properly weigh the evidence in the record in determining the date of

onset of Mr. Webb’s left-sided facial palsy. See Mot. for Review at 2, 5-8, 11-19. He

provides a graphic depiction of the scale for weighing the relevant evidence, id, at 6,

and then describes the relevant pieces of evidence and the weight be believes each

should be assigned, id. at 13-19. But while Mr. Webb may be commended for the

creativity of his exposition, this exercise is one that a court must eschew, for we

may “not reweigh the factual evidence, assess whether the special master correctly

evaluated the evidence, or examine the probative value of the evidence or the

credibility of the witnegses---these are all matters within the purview of the fact

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finder.” Porter, 663 F.3d at 1249. Because of the great deference that is given to a

special master under the arbitrary and capricious review standard, a reviewing

court merely confirms whether “the special master has considered the relevant

evidence of record, drawn plausible inferences and articulated a rational basis for

the decision.” Hines ex rel. Sevier, 940 F.2d at 1527-28. The court’s “role is not to

second guess the Special Master’s fact-intensive conclusions particularly in cases in

which the medical evidence of causation is in dispute.” Cedillo v. Sec’y of Health &

Human Servs., 617 F.3d 1828, 1338 (Fed. Cir. 9010) (cleaned up) (citing Hodges v.

See’y of Health & Human Servs., 9 F.3d 958, 961 (Fed. Cir. 1998); see also Ryman v.

Sec’y of Dep’t of Health & Human Servs., 65 Fed. Cl. 35, 41 (2005) (explaining that

“where the medical evidence of causation is in dispute, a high level of deference 18

due the [special master’s] fact-finding” (citing Hodges, 9 F.3d at 961)). Factual

matters meriting this deference include the determination of the date of onset of an

injury or illness. See Locane v. Sec'y of Health & Human Serus., 685 F.3d 1875,

1380 (Fed. Cir. 9012}.

The Special Master’s decision clearly shows that he considered all the

evidence that Mr. Webb thought was relevant, see Mot. for Review at 13-18---the

November 30, 2012 medical record, Pet’e’s Ex. 3 at 31, see ECF No. 95 at 5-6, 11-12;

Webb, 2018 WL 5292226, at *3, *7; the records relating to blood pressure tests and

blood draws, Pet’r's Ex. 3 at 33, see ECF No. 95 at 5, 12; Webb, 2018 WL 5292226, at

*3 *7: the HNRs submitted by Mr. Webb during the months in question, Pet’y’s Ex.

9, see ECF No. 95 at 5, 12-13; Webb, 2018 WL 5292226, at *3, *7-8; and Mr. Webb's

affidavits, Pet’r’s xs. 10 & 14, see ECF No. 95 at 7-8, 12-18; Webb, 2018 WL

5292226, at *4, “7-8. The Special Master plausibly explained the inferences he

drew from these records---including the likely accuracy of the November 30, 2012

record due to the use of two different means to express the month of September and

the tying of the palsy onset to the stress of trial events occurring in September; that

medical providers performing unrelated, prescheduled medical tests would not

necessarily note Mr. Webb’s palsy; that the lack of HNRs concerning the left-sided

palsy was consistent with Mr. Webb’s admission that he did not submit any

“because there was nothing that could be done,” Pet’r’s Ex. 14 { 2; and that the

unreliability of petitioner’s memory is shown by his mistaken belief that the

November 30, 2012 appointment resulted from an HNR concerning the left-sided

palsy. ECE No. 95 at 11-13; Webb, 2018 WL 5292226, at *7—-8. Asa result, he

articulated a rational basis for his conclusion that Mr. Webb's left-sided injury had

on onset which predated the November 20, 2012 flu vaccination. See ECE No. 95 at

11-13, 15; Webb, 2018 WL 5292226, at *7-9.

Whether or not this Court would have analyzed the evidence in the same way

and reached the same conclusion is irrelevant under the arbitrary and capricious

standard of review. What matters 1s whether the Special Master had “considered

the relevant evidence of record, drawn plausible inferences and articulated a

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rational basis for the decision,” Hines ex rel. Sevier, 940 F.2d at 1527—28---and here,

he did.

Although petitioner contends that no deference should be given to the Special

Master's determinations, presumably because Mr, Webb was not given the chance

to orally discuss the issue of onset of his left-sided Bell's palsy at an additional

status conference, see Pet’r’s Reply at 6, it is well-established that this deference

extends to credibility determinations regarding written testimony. See, e.g., Burns

by Burns, 3 F.3d at 417 (upholding credibility determination giving greater weight

to contemporaneous medical records than to inconsistent affidavits from petitioner);

K.L., 184 Fed. Cl. at 609 (“As the factfinder, the Special Master has discretion to

make determinations regarding the credibility of all the information provided orally

and in writing by fact and expert witnesses, whether they testify in person at a

hearing or submit reports or affidavits for the record.” (emphasis added)); Ryman, 65

Fed. Cl. at 41-42 (deferring when a special master discounted a petitioner's

affidavit due to conflicts with contemporaneous medical records). Concerning the

absence of any specific reference to My. Webb’s left-sided symptoms in other medical

records from September to November 2012, the Federal Circuit has recently

emphasized that medical records should not be presumed “accurate and complete as

to all the patient’s physical conditions.” Kirby, 997 F.3d at 1383. Accordingly,

silence about symptoms need not be taken as proof that those symptoms were not

present. Id. And regardless of how the Court might have interpreted the

document, it was not arbitrary for the Special Master to conclude that a medical

notation indicating that petitioner had no complaints and did not appear to be in

distress, see Pet’r’s Ex. 3 at 33, made by a nurse taking Mr. Webb’s blood pressure,

did not demonstrate the absence of symptoms, given another medical record noting

that Mr. Webb said he did not report the left-sided palsy “because he thought there

was nothing that could be done,” id. at 31; see also Kirby, 997 F.3d at 1383 (finding

general statements that a petitioner was “feeling fine” with “no complaints” not to

be inconsistent with the presence of specific ailments).

The Court recognizes that, in many ways, petitioner's submissions were

impressive, such as the Amended Complaint and “Theory of Causation” paper, ECE

Nos. 78 & 79---particularly given the challenge of representing one’s self while held

in confinement.® But even if Mr. Webb were correct that the November 30, 2012

document was a “medical records blunder,” Pet’r’s Ex. 14 {| 1, the Special Mastex

has amply explained why he concluded this contemporaneous medical record was

6 The Court, however, is not aware of any cases in which a petitioner's self-

diagnosis has been taken to prove an illness or condition. See 42 U.S.C. § 300aa-

13(a)(1) (“The special master or court may not make such a finding based on the

claims of a petitioner alone, unsubstantiated by medical records or by medical

opinion.”).

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the best evidence of onset, rationally discussing the relevant evidence in the record

and the weight or reliability he assigned to each medical record or affidavit, see ECF

No. 95 at 11-13, 15; Webb, 2018 WL 5292226, at “7-9. Such findings cannot be

found to be arbitrary and capricious and cannot be disturbed by a reviewing court.

See, e.g., Kirby, 997 F.3d at 1384; Locane, 685 F.3d at 1380; Cedillo, 617 F.3d at

1338: Lampe, 219 F.3d at 1362; Cucuras, 993 F.2d at 1528.

III. CONCLUSION

For the foregoing reasons, petitioner’s motion for review is DENIED and the

decision of the Special Master is SUSTAINED. The Clerk of Court is directed to

enter judgment for respondent.

VICTOR WOLST#t

Sentor Judge

ITIS SO ORDERED.

are