Sylvia Johnson v. Barnes-Jewish West County Hospital

(Affirming Award and Decision of Administrative Law Judge)

Injury No. 09-112063

Employee: Sylvia Johnson

Employer: Barnes-Jewish West County Hospital

Insurer: Self-Insured

The above-entitled workers' compensation case is submitted to the Labor and Industrial Relations Commission (Commission) for review as provided by § 287.480 RSMo. Having reviewed the evidence and considered the whole record, the Commission finds that the award of the administrative law judge is supported by competent and substantial evidence and was made in accordance with the Missouri Workers' Compensation Law. Pursuant to § 286.090 RSMo, the Commission affirms the award and decision of the administrative law judge dated May 11, 2016, and awards no compensation in the above-captioned case.

The award and decision of Administrative Law Judge Margaret D. Landolt, issued May 11, 2016, is attached and incorporated by this reference.

Given at Jefferson City, State of Missouri, this $\qquad 13^{\text {th }}$ day of June 2017.

LABOR AND INDUSTRIAL RELATIONS COMMISSION

John J. Larsen, Jr., Chairman

Curtis E. Chick, Jr., Member

Attest:

Claimant: Sylvia Johnson

Dependents: N/A

Employer: Barnes-Jewish West County Hospital

Additional Party: N/A

Insurer: Self-Insured

Hearing Date: February 10, 2016

1. Are any benefits awarded herein? No
2. Was the injury or occupational disease compensable under Chapter 287? No
3. Was there an accident or incident of occupational disease under the Law? No
4. Date of accident or onset of occupational disease: Alleged December 7, 2009
5. State location where accident occurred or occupational disease was contracted: St. Louis, Missouri
6. Was above Claimant in employ of above employer at time of alleged accident or occupational disease? Yes
7. Did employer receive proper notice? Yes
8. Did accident or occupational disease arise out of and in the course of the employment? No
9. Was claim for compensation filed within time required by Law? Yes
10. Was employer insured by above insurer? Yes
11. Describe work Claimant was doing and how accident occurred or occupational disease contracted: Claimant alleged she became ill from a mandatory flu vaccination.
12. Did accident or occupational disease cause death? No
13. Part(s) of body injured by accident or occupational disease: N/A
14. Nature and extent of any permanent disability: 0
15. Compensation paid to-date for temporary disability: 0
16. Value necessary medical aid paid to date by employer/insurer? 0

1. Value necessary medical aid not furnished by employer/insurer? N/A
2. Claimant's average weekly wages: $\ 1,558.99
3. Weekly compensation rate: $\$ 807.48 / \ 422.97
4. Method wages computation: By stipulation

1. Amount of compensation payable:

NONE

TOTAL:

NONE

1. Future requirements awarded: None

Said payments to begin and to be payable and be subject to modification and review as provided by law.

The compensation awarded to the claimant shall be subject to a lien in the amount of N/A of all payments hereunder in favor of the following attorney for necessary legal services rendered to the claimant:

Claimant: Sylvia Johnson

Dependents: N/A

Employer: Barnes-Jewish West County Hospital

Additional Party: N/A

Insurer: Self-Insured

Injury No.: 09-112063

Before the<br>Division of Workers' Compensation<br>Department of Labor and Industrial<br>Relations of Missouri<br>Jefferson City, Missouri

Checked by: MDL

A hearing was held on February 10, 2016 at the Division of Workers' Compensation in the City of St. Louis, Missouri. Sylvia Johnson ("Claimant") was represented by Ms. Karen Louis. Barnes-Jewish West County Hospital ("Employer") which is self-insured was represented by Mr. Michael Kelley.

The parties stipulated that on or about December 7, 2009 Claimant was an employee of Employer; venue is proper in the City of St. Louis, Missouri; Employer received proper notice of the injury; the claim was timely filed; at the time of the alleged injury Claimant was earning an average weekly wage of $\ 1,558.99 resulting in rates of compensation of $\ 807.48 for Temporary Total Disability ("TTD") benefits and $\ 422.97 for Permanent Partial Disability ("PPD") benefits; and Employer has denied the claim and paid no benefits.

The issues for resolution are whether Claimant sustained an accident arising out of and in the course of employment; medical causation; liability of Employer for past medical benefits of $\ 79,263.69; liability of Employer for past TTD benefits for the period from October 15, 2010 to July 20, 2011; and nature and extent of PPD.

Claimant is a 63-year-old woman who is employed by Employer as a registered respiratory therapist. On the date of the alleged injury Claimant had been working for Employer for 28 years. Claimant is 5 foot and weighs approximately 234 pounds. Her weight has been stable for many years. Claimant had no history of cardiac illness before December 7, 2009.

In 2008, Claimant's primary care physician, Dr. Howell, gave her a permanent exemption from receiving the influenza vaccination. In spite of her permanent exemption, Claimant was told by a supervisor that the vaccination was mandatory, and on December 7, 2009, Employer administered, and Claimant received, the inactivated monovalent Influenza (H1N1) vaccination. Claimant testified after the vaccination she had immediate numbness, tingling, and burning in her hands. She developed flu-like symptoms including a cough, within one week after her shot.

As time passed, Claimant's symptoms would subside, and flare up again. Her cough lingered. Claimant's symptoms flared up in March 2010. In June 2010, Claimant had a flare-up that caused her to go to the emergency room. She was given a Z-pak, and an inhaler. An x-ray showed an enlarged heart. She was diagnosed with cardiomegaly and atypical pneumonia.

In September 2010, Claimant returned to the emergency room. She was given another zpack. Her condition progressively got worse until October 10, 2010, when she went to the hospital for fatigue, shortness of breath, and weakness. She could barely get up the stairs at work. Claimant was diagnosed with pneumonia and congestive heart failure. She was referred for an echo stress test and her ejection fracture (EF) was 31 %. She was diagnosed with nonischemic cardiomyopathy.

Claimant was referred to Mercy Hospital for a cardiac catheterization. Her next echo showed she had an EF of 38 %. She was diagnosed with nonischemic cardiomyopathy. Her condition was getting progressively worse, and Claimant was taken off work. She was told not to lift or pull heavy items. Although a defibrillator was recommended, Claimant did not get one. Once Claimant started cardiac rehabilitation, she started to feel stronger. She still had numbness and tingling in her hands. Claimant testified her condition stabilized with treatment and medications.

Claimant testified Employer did not send her for treatment, and she had to treat on her own. Claimant testified Employer knew she was treating for her heart condition. Claimant did not request treatment. She assumed they would take over her treatment.

Claimant testified the bills in Claimant's Exhibit 2 substantially represent all of the bills she received for her heart condition. She deducted the amounts that were unrelated to her heart condition. She testified that the total charges amounted to over $\ 78,263.69. Her out-of-pocket expenses amounted to $\ 21,460.77.

Claimant continues to take medications for her heart. If she does not take her medications, she cannot function. Claimant testified she will need to be on medication for the rest of her life. She gets fatigued and cannot walk long distances. She has issues with heat and humidity. She has insomnia and chest pain. Her hair fell out and she has bald spots where her hair has not grown back.

When Claimant stands for long periods of time, her back hurts. She no longer bowls or roller skates. Her sexual stamina and intimacy have been negatively impacted by her December 7, 2009 flu shot. She has difficulty at work because of the numbness in her hands, and it affects her ability to draw blood. Sometimes she is fatigued, and has to stop and rest when going from place to place at work, and can't take the stairs. She has to hold onto something when she squats, bends, or kneels. She limits lifting to 20 pounds.

Claimant testified she felt like her symptoms were connected to the flu vaccine. Her health started spiraling downward after her December 7, 2009 H1N1 flu vaccine. She was told the H1N1 virus was a dead virus, but then she developed an enlarged heart that was discovered in

June 2010. Dr. Serota told her she cannot have the flu vaccine and the flu vaccine caused her cardiomyopathy.

Claimant continued to work after her December 7, 2009 H1N1 flu vaccination up until October 15, 2010. She had to miss work from October 15, 2010 through July 20, 2011. Claimant has returned to work and is performing all of her job duties.

In December 2001, Claimant went to Christian Hospital complaining of a chronic cough and headache for four days. X-rays of her chest were normal. She was diagnosed with bronchitis, prescribed a Z-pak and albuterol, and discharged. Claimant sought treatment again at the emergency room in February 2003 for a cough. She was again diagnosed with bronchitis and was prescribed medication.

On June 7, 2010, Claimant went to the emergency room for a chronic cough that had been going on for months. An x-ray showed cardiomegaly. Claimant was diagnosed with hypertension and pneumonia and prescribed a Z-pak, albuterol, Robitussin, and Lisinopril.

On October 12, 2010, Claimant went to Christian Hospital complaining of shortness of breath. X-rays of her chest revealed cardiomegaly and right lower lobe infiltrate possibly pulmonary vascular congestion. She was diagnosed with congestive heart failure, pneumonia, and type II diabetes. On December 3, 2010, Claimant was again complaining of chest pain prior to her cardiac catheterization. She was diagnosed with nonischemic cardiomyopathy. She underwent cardiac rehabilitation from December 13, 2010 through June 3, 2011.

Claimant was admitted to Missouri Baptist Medical Center from October 19, 2010 to October 25, 2010 for cardiomegaly. On October 28, 2010, a Myocardial Perfusion Scintigraphy with Pharmacologic Stress Sestamibi Imaging was performed. The findings were consistent with both lateral and anterior ischemia, consistent with multivessel disease. Also, there was a diffusely hypokinetic left ventricle with an abnormal diminished ejection fraction of 31 %.

The records from Missouri Baptist Medical Center also include an EMG/NCS dated February 14, 2011 consistent with bilateral carpal and cubital tunnel syndromes.

Claimant was referred to Dr. Janosik of Mercy Clinic Heart and Vascular on October 29, 2010 for an evaluation after an abnormal stress test. The records indicate Claimant has a history of hypertension, diabetes and elevated cholesterol. Dr. Janosik noted Claimant was obese and fairly sedentary. Claimant thought she could walk about a half a mile and climb one flight of stairs before she gets out of breath. Stress testing showed an ejection fraction of 31 % with multivessel distribution of ischemia, and she had an abnormal EKG. Dr. Janosik noted Claimant has multiple risk factors for coronary artery disease ("CAD"), including hypertension, diabetes, elevated cholesterol, obesity and a sedentary lifestyle. Dr. Janosik recommended cardiac catheterization, which confirmed global hypokinesis but no obstructive CAD. She was referred to cardiac rehabilitation.

On January 4, 2011, Claimant complained of numbness and tingling in her hands that she thought was caused by her heart medication. She was also experiencing chest pain. Dr. Janosik noted the history of nonischemic cardiomyopathy, diabetes and hypertension. Dr. Janosik discussed implanting an ICD, but Claimant wanted to think about it.

On January 17, 2011, Claimant discussed the flu shot policy at her workplace with Dr. Janosik. She gave a history of having a side effect to a previous flu shot approximately two years prior. Dr. Janosik noted Claimant apparently developed flu-like symptoms and did not want to take any more flu shots. Dr. Janosik stated Claimant was so preoccupied with the flu shot it was difficult for her to focus on her cardiac issues.

Claimant continued to treat with Dr. Janosik for nonischemic cardiomyopathy over the course of the next couple of years. On December 12, 2012, Dr. Janosik noted Claimant was tolerating her medical regimen without side effects. Dr. Janosik also noted in March 2012 Claimant's ejection fraction was in normal range, and her hypertension was under adequate control. Dr. Janosik believed Claimant's nonischemic cardiomyopathy was well compensated as her left ventricle ejection fraction had normalized.

On October 15, 2013, Dr. Janosik noted the etiology of the cardiomyopathy was not clear. The records note Claimant was convinced the cardiomyopathy was related to the flu vaccine she received the prior year, and she was refusing to receive flu shots. Claimant asked Dr. Janosik to write a statement including an opinion of diagnosis of December 7, 2009, whether treatment was necessary, and whether Claimant was unable to work for a period of time related to the flu shot. Dr. Janosik advised she would need to see all the medical records before she commented. On December 17, 2013, Dr. Janosik stated: "She is very preoccupied with the potential link between receiving the H1N1 flu shot in December 2009 \& the onset of her cardiomyopathy in October of 2010 .

Claimant treated with Dr. Serota at St. Louis Heart and Vascular on February 23, 2011 for a cardiomyopathy evaluation. She complained of exertional dyspnea, but denied dyspnea at rest, peripheral edema, orthopnea, PND, cough, wheezing, fatigue, chest pain, palpitations, dizziness, syncope, near-syncope, and side effects from medications. Under patient instructions, Dr. Serota stated: "You cannot have a flu shot, it caused your cardiomyopathy." Claimant continued to treat with Dr. Serota in May and June 2011. On March 5, 2014, Claimant saw Dr. Serota for a follow up. Under patient instructions he stated: "YOU CANNOT GET THE FLU VACCINE."

Claimant saw her primary care physician, Dr. Howell, on October 31, 2007. The records document her history of type II diabetes, hyperlipidemia, chronic venous stasis, and hypertension. Records from Dr. Howell note the development of bilateral carpal tunnel syndrome in early 2011. On September 22, 2011, the records state "pt states 2009 flu shot caused cardiomyopathy."

Claimant saw Dr. Tables on August 18, 2011 to establish care and follow up on her diabetes. The records document a history of hyperlipidemia, hypertension, diabetes, cardiomyopathy, chronic kidney disease, and morbid obesity. The records indicate Claimant gave a history of having a flu shot in 2009. Under the heading "Subjective" it states: "58 year old female for follow up of diabetes medication and adverse reaction to influenza vaccine. ... Allergy to influenza vaccine and would like a letter for work. She has had multiple adverse

reactions to this immunization - cough, chills. Needs a letter for work stating this." Dr.Tables diagnosed adverse effect of drug medicinal and biological substance - influenza vaccine.

Dr. Jack Wolfson examined Claimant's medical records, spoke to Claimant by phone on April 24, 2014, and testified on behalf of Claimant. Dr. Wolfson is board certified in internal medicine and cardiology, and is licensed to practice medicine in the state of Arizona. He did not know which specific medical records he reviewed. He testified Claimant's medical history was mostly a "verbal history". He testified he reviewed records from an office visit with Dr. Brown on January 13, 2011, Dr. Janosik on May 10, 2012, Dr. Serota's record of November 13, 2012, and cardiac rehabilitation records from 2010 and 2011. He did not review Claimant's deposition. He reviewed all the medical records sent to him, but Dr. Wolfson testified he does not know if he viewed all of Claimant's records.

Dr. Wolfson testified that the H1N1 vaccine is a live attenuated or weakened strain of the H1N1 virus that caused her cardiomyopathy.

Dr. Wolfson testified the December 12, 2009 vaccine administered to Sylvia Johnson was the proximate cause of her congestive heart failure and cardiomyopathy. He later testified he believed the H1N1 shot Sylvia Johnson received on December 7, 2009 was the prevailing cause of her cardiomyopathy and resultant disability. This led to her disability from October 2010 to July 2011. Her symptoms clearly started after the vaccination in December 2009. She was a woman that was working her full-time job. She had no cardiovascular symptoms whatsoever. She got a vaccination and abruptly developed symptoms that were ultimately diagnosed as congestive heart failure. When determining cause and effect, Dr. Wolfson believes it was very clear that one thing led to another.

Dr. Wolfson stated that given the nature of her job as a respiratory therapist, 50 % PPD is advised since she cannot perform activities requiring prolonged standing, walking, or lifting above 15 pounds.

This is Dr. Wolfson's first independent medical examination. He never rated a workers' compensation claimant in the state of Missouri. He testified he did not know how permanent partial disability is defined or determined in the state of Missouri.

Dr. Wolfson reviewed the Vaccine Adverse Event Reporting System (VAERS) in which there were several cases reported of cardiomyopathy after the H1N1 vaccine. The VAERS data base was established to allow patients and physicians to report on suspected vaccine associated adverse events or vaccine injury. Dr. Wolfson testified he is familiar with literature that links vaccinations to cardiomyopathy. There is a report from the South Medical Journal in 2004 called "Rare Association: Possible myocarditis secondary to influenza vaccination". He testified there is a trail in the literature linking vaccinations to cardiomyopathy. He opined these instances are underreported because physicians are not taking proper histories from their patients.

Dr. Wolfson testified he relied on the following studies in formulating his opinions: "Myopericarditis Following Smallpox Vaccination;" "Acute Myocarditis Associated with the Tetanus Vaccination;" "Smallpox Vaccination and Myopericarditis: A Clinical Reviw;" and "Myocarditis after Triple Immunization." Two of the reports deal with smallpox vaccination. One deals with the tetanus vaccination. The last one deals with the diphtheria, tetanus, and pertussis vaccination. In developing his report, Dr. Wolfson was unable to find any articles or studies that definitively linked the H1N1 influenza vaccination with the development of myocarditis, cardiomyopathy, and/or congestive heart failure.

Dr. Wolfson testified the articles he cited relied upon a cut-off date between the timing of the vaccination, and the onset of symptoms, in establishing a causal relation between the vaccination and the myocarditis. The myocarditis following the Smallpox vaccination required presentation for medical care within 30 days. The acute myocarditis associated with tentanus vaccination developed chest pain within three days of receiving the vaccination. With the case of the myocarditis after triple immunization, the patient sought treatment within 12 hours after the vaccination.

Dr. Wolfson testified although he believes you can always find a cause, most doctors find a significant amount of idiopathic instances of cardiomyopathy. Dr. Wolfson testified within a reasonable degree of medical certainty that Claimant had myocarditis that led to cardiomyopathy and congestive heart failure that was diagnosed in October 2010. He believes this, despite the fact Claimant was not diagnosed for 10 months post vaccination, and the sources he cited required medical treatment to be sought within 30 days for purposes of establishing causation. Dr. Wolfson believes this despite the fact that his causation opinion does not cite a source that specifically links the H1N1 influenza vaccination to the development of myocarditis, cardiomyopathy, or congestive heart failure.

Dr. Stephen Schuman examined Claimant on June 8, 2015, prepared a report, and testified on behalf of Employer. Dr. Schuman is board certified in internal medicine and cardiology. He is licensed to practice medicine in the state of Missouri. Dr. Schuman testified he reviewed medical records from Christian Hospital, Barnes-Jewish West County, Missouri Baptist Medical Center, Mercy Clinic Heart and Vascular, St. Louis Heart and Vascular, Dr. Howell, Dr. Tables, Dr. Siddiqui, and Dr. Wolfson. Dr. Schuman also reviewed Claimant's deposition testimony.

At the time of her examination, Claimant reported ongoing complaints of exertional dyspnea and weakness, shortness of breath in the supine position, and paroxysmal nocturnal dyspnea, which is awakening from one's sleep short of breath. She reported ongoing exertional dyspnea and weakness if she tries to walk up one flight of stairs. She cannot walk one full block on level ground without being short of breath and fatigued. She also reported intolerance to heat. She continues to take carvedilol, isosorbide mononitrate, hydrochlorothiazide, Micardis, CoQ10. Claimant had a normal electrocardiogram during her exam.

The first records Dr. Schuman reviewed were for an ER visit on June 7, 2010. He testified this was a significant time lapse if Claimant's cardiomyopathy possibly due to myocarditis was going to be related to getting the H1N1 flu shot.

Dr. Schuman diagnosed Claimant with nonischemic cardiomyopathy that led to congestive heart failure in October 2010. "Nonischemic" means that the cardiomyopathy was not caused by cardio blockages or coronary artery disease. Nonischemic cardiomyopathy is a weakening of the heart muscles and defined as depressed ejection fraction below 40 % without obstructive coronary artery disease. This can be caused by toxins and alcohol. There is some genetic predisposition to cardiomyopathy. The condition can also be caused by viruses, including myocarditis. Dr. Schuman testified Claimant may have had myocarditis, but this cannot be proven without an endomyocardial biopsy. Myocarditis cannot be diagnosed through blood work. In Claimant's case, with normal coronary arteries and assuming normal valve structure, it is referred to as idiopathic dilated cardiomyopathy.

Dr. Schuman testified Claimant did not sustain an injury as a result of the December 7, 2009 H1N1 flu vaccination. He explained there is no correlation between the H1N1 influenza vaccine and the development of myocarditis dilated cardiomyopathy.

According to Dr. Schuman, the December 7, 2009 H1N1 flu vaccination was not the prevailing factor in causing Claimant's congestive heart failure or cardiomyopathy. He stressed there is no known correlation between the influenza vaccine and myocarditis. Furthermore, patients with cardiomyopathy are groups of people who are strongly recommended to get the flu vaccine. He explained that individuals with heart failure are at a high risk of dying from influenza. If there was a concern among cardiologists that the influenza vaccine was causing cardiomyopathy or myocarditis, they would not be recommended to get the shot.

From a biological plausibility standpoint, Dr. Schuman stated that the H1N1 vaccine causing myocarditis or cardiomyopathy would be difficult to explain. The H1N1 flu vaccine is a killed virus. It is not a live attenuated weakened strain of the virus. Dr. Schuman testified Claimant's medical treatment for congestive heart failure and cardiomyopathy did not flow from the December 7, 2009 flu vaccination, and she does not require any additional medical treatment that would flow from it. She may have some disability as a result of her congestive heart failure and cardiomyopathy, but the December 7, 2009 flu vaccination is not the prevailing cause in causing the disability. Dr. Schuman testified Claimant did not sustain any PPD as a result of the December 7, 2009 flu vaccination.

Dr. Schuman testified the flu vaccination was not the prevailing factor in causing Claimant to miss work from October 2010 until July 2011. He testified it would not be uncommon for a person to experience some flu-like symptoms for two days up until a week after a flu vaccination, but that reaction is due to the nonspecific antigen nature of the vaccine that is stimulating the immune system.

Dr. Schuman did not review the Vaccine Adverse Events Reporting System (VAERS) in preparation of his report. Dr. Schuman testified that the manufacturer's insert clearly states that the H1N1 vaccine is an inactivated virus, which means it is a killed virus. The H1N1 vaccine is not a live, weakened virus.

In defending his opinion that there was no link between the influenza vaccine and myocarditis, cardiomyopathy, and heart failure, Dr. Schuman cited his knowledge from medical school, 29 years of practice and cardiology training, conferences, and review of medical journals.

Claimant's Deposition Exhibit D was handed to Dr. Schuman for review. He reviewed the article, "Rare association: Possible myocarditis secondary to influenza vaccine" from the Southern Medical Journal on October 1, 2004. The article suggests there could be a possible connection between myocarditis and the influenza vaccine. Dr. Schuman said the title of the article is misleading and that any connection would be purely coincidental. The word "association" is misleading because it does not establish a definitive link. He continued that if there was any relation of heart disease to any type of influenza vaccine, the internal medical and cardiology community would be aware of it. Furthermore, the patient in the article had an onset of symptoms and sought treatment within two weeks of vaccination.

He reviewed the articles cited by Dr. Wolfson in his IME, none of which dealt with the influenza vaccine. The articles cited by Dr. Wolfson dealt with smallpox and tetanus vaccines. All four articles cited the importance of temporal association between the vaccines and onset of symptoms. Dr. Schuman testified the criteria for establishing and confirming probable cases of vaccine-related myocarditis required presentation for medical care within 30 days of vaccination. Dr. Schuman testified Claimant did not present for medical treatment within 30 days of vaccination. The first medical treatment she sought after her vaccination was six months later. If Claimant had presented to an internist within a week of an influenza vaccine complaining of aches, dry cough and fever, he would have believed it was a reaction to the flu vaccine. Dr. Schuman conceded Claimant probably had flu-like symptoms about a week after her December 7, 2009 flu vaccine, even though she did not present for medical treatment with her primary physician. However, it appears she had a common reaction to the flu vaccination. He believes an internist would have been able to identify symptoms of heart failure if she had been displaying those symptoms.

Based upon a comprehensive review of the evidence, my observations of Claimant at hearing, and the application of Missouri law, I find:

Claimant did not meet her burden of proving she sustained an accident arising out of and in the course on employment on December 7, 2009. There is no dispute Claimant had the H1N1 influenza vaccine administered to her by Employer on December 7, 2009. Claimant failed to prove the December 7, 2009 influenza vaccine was the prevailing factor in the development of her cardiomyopathy and congestive heart failure.

Dr. Schuman's opinions and testimony are credible, persuasive, and supported by the medical treatment records and evidence in this case. Dr. Schuman is board certified in internal medicine and cardiology. He is licensed to practice medicine in the state of Missouri. He has performed independent medical examinations in the state of Missouri. He reviewed all of the medical records in evidence. He testified the time lapse between Claimant's vaccination and her presentation with symptoms and diagnosis of congestive heart failure was problematic in establishing a temporal relationship. He explained it is not biologically plausible for a dead virus to cause myocarditis and develop into cardiomyopathy and congestive heart failure. Furthermore,

patients with cardiomyopathy and congestive heart failure are at a higher risk of dying from the flu and are strongly encouraged to obtain the flu shot. Dr. Schuman testified these patients would not be encouraged to get the flu shot if there was a known correlation between the vaccine and these heart conditions.

Both experts in this case diagnose Claimant with cardiomyopathy and congestive heart failure. Furthermore, both experts agree that cardiomyopathy can be caused by a variety of factors. This is where the similarity ends between the two experts. Dr. Schuman credibly testified the December 7, 2009 H1N1 influenza vaccine was not the prevailing factor in causing Claimant's cardiomyopathy and congestive heart failure. His opinion is based upon the extensive gap between Claimant receiving the vaccination and presenting for treatment, and there being no known definitive link between the H1N1 influenza and the development of cardiomyopathy.

Dr. Wolfson did not provide credible medical testimony about the cause of her heart conditions. Dr. Wolfson testified that, "the vaccine administered to Sylvia Johnson in December 2009 was the proximate cause of her congestive heart failure and cardiomyopathy." Claimant's attorney asked:

Q: "Are you able to state with a reasonable degree of medical certainty that it is your opinion that the H1N1 shot Sylvia Johnson received on December 7, 2009 was the prevailing cause of her cardiomyopathy and resultant disability?"

A: "Yes, I do. Sylvia was a woman who was working full time at her job. She had no cardiovascular symptoms whatsoever. She got a vaccination and abruptly developed symptoms that were ultimately diagnosed as congestive heart failure. So the job of the physician is to determine cause and effect and I think it's very clear in this situation that one thing led to another." (Dr. Wolfson deposition, pg 29-30).

First, Claimant's symptoms of congestive heart failure did not develop abruptly after receiving the flu vaccine. In addition, Dr. Wolfson's response did not explain why the H1N1 vaccine was the primary factor in relation to any other factor in causing Claimant's congestive heart failure and cardiomyopathy. Dr. Wolfson testified he was unable to find any articles or studies that definitively link the H1N1 influenza vaccination with the development of myocarditis, cardiomyopathy, and/or congestive heart failure. The four articles Dr. Wolfson cited in his testimony have facts significantly different from Claimant's case, and do not support his opinion.

The articles relied on by Dr. Wolfson in formulating his opinions all noted a temporal relationship between the vaccination, onset of symptoms, and presentation for medical treatment. The time between vaccination and presentation for medical treatment ranged between 12 hours up until 30 days. Claimant's first medical records that could be possibly associated with cardiomyopathy were from an ER visit on June 7, 2010, about six months after her flu vaccine. Claimant was not diagnosed with cardiomyopathy and congestive heart failure until October 2010, or 10 months post-vaccination. There is no convincing evidence that the development of symptoms and presentation for treatment 10 months post-vaccination is medically causally related to the December 7, 2009 flu vaccine.

Dr. Wolfson's opinion is not persuasive. He did not actually examine Claimant, but rather reviewed medical records and took an oral history from her, over the telephone. He could not testify as to which medical records he reviewed, so it is impossible to determine if he had all the necessary medical records and pertinent medical history in developing his opinions. Dr. Wolfson claimed that the H1N1 vaccine is a live attenuated vaccine, even though the manufacturer's package insert he testified from clearly states the vaccine is a dead virus.

Although the medical records reveal Dr. Serota opined Claimant should not get the flu vaccine because it caused her cariomyopathy, his opinion is not persuasive. No foundation for his opinion was established. It is not clear if he had all Claimant's prior medical records, or whether his opinion was based to a large degree upon Claimant's oral history. For that reason, his opinion as stated in the medical records is rejected.

Claimant failed to meet her burden of proving she suffered an accident at work that arose out of and in the course of her employment for Employer. She failed to provide credible medical testimony and evidence that established medical causation between the December 7, 2009 flu vaccine and her cardiomyopathy and congestive heart failure. The remaining issues are moot and her Claim is denied.

Made by: $\qquad$

MARGARET D. LANDOLT

Administrative Law Judge

Division of Workers' Compensation