TND | The National Desk
Those injured by COVID-19 vaccine still waiting for government compensation
By Brook Conrad
WASHINGTON (TND) — Steve Wenger says he began struggling to walk in May 2021, seven days after receiving the Johnson & Johnson COVID-19 vaccine.
He eventually became paralyzed from the waist down and had to go to the hospital. His arms became so weak he couldn’t pick up a glass of water. In clinical notes, his doctor at Mayo Clinic referred to an autoimmune disorder called chronic inflammatory demyelinating polyradiculoneuropathy (CIDP) saying it was “triggered by COVID vaccination.”
"I spent 98 days in the hospital, and they were 98 days of absolute living hell,” Wenger said.
It’s almost impossible to sue a vaccine company for a COVID vaccine injury, due to liability protections under the Public Readiness and Emergency Preparedness Act, or PREP Act. Congress deemed these protections necessary years ago in order to “ensure that potentially life-saving countermeasures will be efficiently developed, deployed, and administered,” according to the Congressional Research Service.
Instead of filing a lawsuit, people injured by a COVID vaccine can seek government compensation through the Countermeasures Injury Compensation Program, or CICP. Wenger says he filed his claim in October 2021. A year and a half later, he’s still waiting to hear back about whether he’s eligible.
Wenger isn’t alone in the waiting process. His claim is one of more than 8,000 others alleging injury or death from the COVID-19 vaccine. Zero such claims have been compensated as of March 1. Twenty-one have been determined eligible for compensation, but not paid. Three hundred have been denied as of March 29.
Wenger says he believes his claim should be an “absolute slam dunk approval,” based on the government’s own data. The Centers for Disease Control and Prevention says it is monitoring post-vaccination reports of Guillain-Barre Syndrome (GBS), a neurological disorder that sometimes causes paralysis and experts believe is related to CIDP. One recent analysis of government data published in the Journal of the American Medical Association identified 295 reports of GBS following COVID vaccination and concluded the Johnson & Johnson vaccine was associated with an increased risk of GBS.
Wenger is able to walk again today – albeit with pain and only for short distances. Compounding his health problems are his concerns about how to pay for them. Wenger says he couldn’t work all of 2021 and received Social Security disability benefits starting in January 2022. He receives regular treatment for his injury – IVIg infusions every two weeks and Rituximab every six months. In October, he told The National Desk he believes his medical expenses and lost wages so far add up to somewhere between $150,000 to $200,000. He says his father has helped him pay for ongoing treatments and medical bills.
“As far as financial goes, it’s basically destroying us,” Wenger said during a follow-up interview in March.
Wenger says he finds it “disgusting” how difficult it is for someone injured by a COVID vaccine to receive compensation from the government – the same government that pushed, and, in many cases, required Americans to receive the shot.
“You asked us to do our part to ‘Slow the spread,’” he wrote in an October email to officials from the Health Resources and Services Administration, which runs the government’s vaccine compensation programs. “Well we did our part! Now it is time for the Federal Government to do their part!”
FLAWS IN THE CICP PROGRAM
The countermeasures program, or CICP, is deeply flawed, several experts say. For fiscal years 2010 through 2021, it has compensated 6% of all non-COVID-related claims (29 out of 491 claims), for a total of $6 million in awards. The majority of claims were for the H1N1 influenza vaccine. Since the inclusion of the COVID vaccine and other COVID-related countermeasures, the total number of claims has skyrocketed to nearly 12,000, resulting in a giant backlog.
The countermeasures program is basically a black hole. It’s your right to file and lose,” says Renee Gentry, Director of the Vaccine Injury Litigation Clinic at George Washington University Law School. “I don't think it was ever anticipated to handle the number of vaccinations that have happened under COVID.”
CICP staffing levels appear to have ramped up as a result of the increased claims, according to information from a FOIA request filed by Wayne Rohde, who’s written two books on vaccine injury compensation. The CICP employed six federal staff and six contractors in fiscal year 2021. The actual/estimated staff increased to 42 federal staff and 12 contractors in 2022, then 42 federal staff and 20 contractors in 2023.
Budget levels also increased dramatically. Actual/estimated budgets for staff and contractors totaled less than $3 million in fiscal year 2021, then over $5 million in 2022, then $9.5 million in 2023. The actual/estimated budget for compensation increased from less than $1 million in 2021 to $5 million in 2023.
But despite the increased resources, thousands of claims remain in the queue.
A number of lawyers and other advocates are pushing for COVID vaccines to be transferred to the National Vaccine Injury Compensation Program, or VICP, which operates as a court rather than an administrative process. It covers most routinely-administered vaccines, such as childhood vaccines and the seasonal flu shot, and it has a higher percentage of compensated claims. From 2006 to 2021, the program compensated nearly three-quarters of all adjudicated petitions (7,418 out of 10,342 petitions) and has paid out approximately $4.9 billion over its lifetime since 1988.
The VICP has several other advantages. It can compensate for pain and suffering and pay attorneys’ fees, both of which the CICP does not cover. The VICP places no cap on lost earnings, while the CICP caps lost earnings at $50,000 per year. And the VICP also has a three-year filing window for injuries, as opposed to one year in the CICP.
There are three hurdles involved in transferring COVID vaccines to the VICP. The first appears to have been cleared recently when the Centers for Disease Control and Prevention recommended the shots for routine administration to children. Secondly, Congress must pass an excise tax to fund the compensation program, and thirdly, the Secretary of Health and Human Services must add the shots to the Vaccine Injury Table, which lists injuries and conditions associated with certain vaccines.
HHS did not respond to a request for comment about when the secretary would amend the vaccine injury table, or when COVID vaccines might be transferred to the VICP.
Even if the transfer takes place, it's still unclear whether people like Wenger would be eligible. If the VICP doesn’t cover those who already applied to the CICP or those who received a COVID vaccine that wasn’t fully approved at the time of vaccination (i.e., a vaccine authorized for emergency use), then thousands of potential claimants could be excluded.
“I think the optics in Congress would be spectacularly bad if the people that went out and did their civic duty and got vaccinated were left out in the cold, and future vaccines were not,” Gentry said. “They really need to figure that out as quickly as possible.”
The VICP also isn’t perfect. Nearly 4,000 petitions have not yet been adjudicated and transferring COVID vaccines from the CICP to the VICP would triple the backlog. Petitioners on average wait two to three years to get their cases adjudicated.
Members of Congress on both sides of the aisle have attempted to reform both the CICP and VICP, but the legislation hasn’t made it far. Wisconsin Sen. Ron Johnson, a Republican, cosponsored one such bill last year, and his office told The National Desk he’ll “assess all possible avenues” for injury compensation in the current Congress.
“The first step in ensuring compensation is getting the medical establishment and federal agencies to admit that COVID-19 vaccine injuries are real,” the office said in a statement.
NO RECOURSE
Even worse than a long wait — according to some who are seeking compensation – is a denial.
Cody Flint filed his CICP claim in May 2021. He previously spoke with The National Desk that same year, describing how he developed a “severe, stabbing headache” within 30 minutes of receiving the Pfizer vaccine, and then two days later, he nearly blacked out in midair while flying his plane during a crop-dusting job. He underwent two ear surgeries, and his doctor said his medical issues were likely caused by the vaccine. He says he didn't have insurance at the time, leaving him with roughly $60,000 in medical bills.
After one year of waiting for a determination from CICP, Flint’s case came up during a Senate Appropriations subcommittee hearing, when Sen. Cindy Hyde-Smith, R-Miss., confronted Health and Human Services Secretary Xavier Becerra about COVID vaccine injury claims.
"Can you tell me what you’re going to do to address the thousands of claims currently in backlog at HHS, and what are you doing to improve the transparency of the CICP process so that Americans like Mr. Flint are properly compensated in a reasonable time period?” she asked.
Becerra responded that a number of Americans are suffering from “long COVID.” He also noted that in some cases, government money designated for COVID-19 purposes has been used fraudulently.
“We want to make sure that no one’s trying to game the system to get relief for something that doesn’t exist,” Becerra said. “That way, we can reserve the funds that we have for people like Mr. Flint and provide him with some help.” Becerra added that he would be willing have his team reach out to Hyde-Smith about Flint’s vaccine injury claim.
Three weeks later, the CICP denied Flint’s claim.
The letter from CICP concluded there was no solid evidence the vaccine caused Flint’s alleged injuries. It said “barotrauma from flying” – that is, ear discomfort often caused by altitude changes, also known as “airplane ear" – is a known cause of perilymphatic fistulas, which is one of the diagnoses Flint received from his doctor.
But Flint argues he wasn’t flying high enough to experience barotrauma. During his 15 years as an agricultural pilot, Flint says the highest he usually needed to fly was approximately 500 feet above the ground in order to turn his plane around. He says he was only 200 feet above ground at the time of his adverse event. By contrast, it's common for commercial airlines to pressurize their cabins to an equivalent altitude of nearly 8,000 feet above sea level.
That’s like saying I got barotrauma from climbing to the top of a tree,” Flint told The National Desk.
Flint’s doctor also pushed back against the CICP’s decision and asked them to reconsider.
“Mr. Flint experienced intense head pressure within an hour of receiving his COVID vaccination,” wrote Louisiana-based neurotologist Gerard Gianoli. “Elevated intracranial pressure has been recognized as a complication of COVID vaccination, and given the sequence of events, more probable than not, it is the cause of Mr. Flint’s elevated intracranial pressure... [which] led to his perilymphatic fistula.”
Flint appealed his case – but he again was denied. The letter read, “Given the timeline of symptoms it was not plausible for the Pfizer COVID-19 vaccine to have caused the otologic and vestibular issues experienced by Mr. Flint."
Flint describes the denial as “ridiculous.”
"Takes the shot... injured within 48 hrs. They claim that’s not plausible?!” Flint wrote in an email.
Flint works as a truck driver now that his medical condition has forced him to leave his crop-dusting job.
“Now I have no recourse. Can’t sue,” he told The National Desk. “It’s clear to me that there’s no way they [the CICP] would approve a pilot that became nearly incapacitated while flying.”
WHAT COUNTS AS A VACCINE INJURY?
It’s generally difficult to predict what will qualify as a COVID vaccine injury. That’s because the government has no published table specifying injuries that are associated with the COVID vaccine as it does for pandemic influenza and smallpox countermeasures.
It can be much more difficult to win compensation when a specific type of medical condition isn’t listed on the VICP injury table, according to New York-based vaccine injury lawyer Robert Krakow.
"A table injury is where it's understood that if a vaccine injury occurs within a certain timeframe, it was caused by the vaccine. It is a presumption,” Krakow said. “However, for a non-table injury, that's something that's not recognized as being caused. You have to have expert reports with medical experts, which are very expensive. And with the less common injuries, it's almost impossible to prove.”
Because the CICP is an administrative process, not a court, there’s no opportunity for an independent special master or judge to make the decision on a claim, says Peter Meyers, former director of The George Washington University Law School's Vaccine Injury Litigation Clinic.
"The compensation decision is made by some unknown official at HHS, and the reasons why that official grants or denies compensation are essentially unknown," Meyers said. "All you'll receive, 90% of the time, is a letter, which is not made public, informing you that your claim has been rejected because you haven't convinced us that the vaccine caused it."
Despite the lack of an injury table, there are 21 COVID vaccine claims determined eligible for compensation so far – most of them for myocarditis (inflammation of the heart muscle). Others are for pericarditis (inflammation of the tissue surrounding the heart), angiodema (swelling under the skin), and anaphylaxis (severe, possibly life-threatening allergic reaction).
HRSA did not say whether there are any plans to create an injury table for the COVID vaccine when The National Desk inquired.
“According to statute, a requester must show that a covered injury was sustained as the direct result of the administration or use of a covered countermeasure, and the program may only provide compensation if there is compelling, reliable, valid, medical and scientific evidence of that causation,” HRSA wrote in an email. “If a table is developed, it will be published in the Federal Register, with an opportunity for public comment, and will be posted on the CICP website.”
HIGH STANDARD OF PROOF
There’s another layer of difficulty for those submitting claims. The CICP requires “compelling, reliable, valid, medical, and scientific evidence” that the vaccine directly caused the injury – a very high standard — in contrast with the VICP, which only requires a “preponderance of evidence” that the adverse event more likely than not was caused by the vaccine.
On top of that, claimants don’t necessarily have medical experts and attorneys helping them like they normally would in the VICP.
“How exactly is a regular person supposed to show compelling, reliable, valid, medical and scientific evidence of causation at a higher burden than we have to show in the VICP without counsel or experts?” Gentry asked in an email.
Michelle Zimmerman has been asking similar questions.
In March 2021, Zimmerman received the Johnson&Johnson vaccine and felt pain shoot down her arm within five minutes and felt her tongue and throat start swelling after about 20 minutes. A harrowing cascade of other adverse events followed. She eventually was diagnosed with hypoxic-ischemic encephalopathy or brain damage caused by a lack of oxygen or blood flow.
Zimmerman's doctors attribute her symptoms to the vaccine, with one describing her condition as a “severe post-vaccine reaction." Two years after the shot, she still suffers debilitating fatigue, memory deficits, vision and speech problems, and currently describes herself as “still fully medically disabled, still not medically cleared to return to work, drive, or even cardio.”
Zimmerman estimates her total financial losses exceed $400,000. That includes medical bills — which she says her insurance continually declined to cover — lost wages, and part-time care. Her parents were supposed to be retired but have kept working to help support her.
Zimmerman filed for CICP compensation in October 2021 but says she was not assigned a case number until January this year and continues to receive conflicting messages from the CICP regarding her submitted medical records. HRSA told The National Desk it does not comment on individual claims made to the CICP for privacy reasons.
In addition to her concerns about the filing difficulties, Zimmerman says she believes it’s “unethical” to expect people who are vaccine-injured to prove their case to the government on their own.
"It would be unthinkable to demand that a cancer patient, while receiving treatment, would be responsible for reading medical journals of researchers and specialists, to learn a new medical vocabulary, to establish an argument airtight with a new language of legal vocabulary and process, and demand that they prove at a legal level and medical level that they have cancer, with no guideline other than 'compelling,' no assistance from experts, no updated diagnoses (or codes) provided to their clinicians to cite in documentation, all within less than a year," she said in an email. “This is what is being demanded of vaccine injured.”
There isn’t much a lawyer can do to help with COVID vaccine injury cases, says New Jersey-based vaccine injury lawyer Phyllis Widman, who has handled many VICP cases over about eight years. Unlike the vaccine court where VICP claims are filed, the CICP doesn’t offer a way for a lawyer to subpoena medical records, make oral arguments, or ask for a hearing.
“I feel like as a lawyer, I don't have any control over what's going on,” Widman said. “I'm used to being able to run to the court for intervention, and I can't do that in the CICP. The injured clients are at a loss.”
Even for those who might choose to pay for the services of a lawyer or medical expert, they won’t have those expenses covered in the CICP program like they would in the VICP.
“Without having their experts’ fees paid, the COVID vaccine-injured’s hands are absolutely tied behind their backs,” says Chris Dreisbach, legal affairs director for React-19, an organization that offers support to people suffering from long-term COVID-19 vaccine injuries. “These cases often come down to a battle of the experts.”
Dreisbach himself received the Pfizer vaccine in March 2021 and since then has been diagnosed with chronic inflammatory demyelinating polyneuritis. He says he’s experienced involuntary muscle spasms, modified gait, back pain, "occipital neuralgia" or headache disorder, brain fog, and electrical pulses from head to toe.
He says it’s difficult for claimants to meet the CICP’s standard of proof, considering there’s still much research yet to be done on people with COVID vaccine injuries.
"We are begging and pleading to be researched so studies can be done on us, which would then be referred to by experts to prove that we were directly harmed by the vaccine,” he said.
Dreisbach also takes issue with the program’s one-year filing window, noting that he didn’t receive his own diagnosis until well over a year post-vaccination.
“It often takes over a year for the vaccine-injured to understand the nature and the extent of their injuries,” he said.
Pfizer did not respond when asked about Dreisbach and Flint’s post-vaccine adverse events.
When asked about Wenger and Zimmerman’s medical conditions, Johnson&Johnson said that it carefully reviews reports of adverse events.
“Serious side effects from vaccines are extremely rare,” the company said. “Any report about an individual receiving our COVID-19 vaccine and our assessment of that report is shared with the U.S. Food and Drug Administration and other appropriate health authorities.”
PAIN AND SUFFERING
Others may not apply to the CICP in the first place, due to the program’s limited benefits.
Olivia Teseniar was one of the first Americans to get vaccinated in 2020 as a participant in Moderna’s vaccine trial. After the first shot, she says she had “really bad” arm pain in the same arm where she received the vaccine, along with a low-grade fever and fatigue. She says a doctor at the trial site approved her for a second dose, even after Teseniar told the doctor she was still feeling pain in her arm and couldn't lift it all the way. (The trial site said it takes patient well-being and safety very seriously but can't comment on individual cases.) Four days after the second dose, she says she woke up “terribly sick,” with a fever and “extreme head pressure.”
"I felt like something was really, really wrong with me,” she said. “I was having confusion. I was having twitches, like in my head, especially with eye movement. I was having trouble picking up things. I was dropping things. I was having trouble walking right. I was kind of walking with like stick legs. I couldn't remember how to spell my last name. I couldn't read.”
Teseniar says most of the neurological problems eventually wore off, but then she became more aware of her arm pain. An MRI revealed tissue damage that required surgery on her shoulder, followed by a second surgery to remove lymph nodes under the same arm. And then she developed a seroma – a buildup of bodily fluids that can occur post-surgery – requiring a third surgery to insert a drain.
Her orthopedic surgeon confirmed in writing she had suffered “adverse effects of [the] vaccine.” A doctor from the trial site where Teseniar received her vaccine also wrote she has “had several medical issues since the vaccinations” and recommended she not receive a booster shot.
Her medical situation worsened the following year. In April 2022, Teseniar was diagnosed with cutaneous T-cell lymphoma, a type of cancer that broke out in an uncomfortable, bubbly rash all over her skin. She says the medication she began taking for it caused hair loss, irregular heartbeats, and extreme dizziness. She also experienced an unusually heavy and frequent menstrual cycle, after which uterine fibroids were discovered, and she underwent a hysterectomy in September 2022. Teseniar says she’s convinced cancer and menstrual cycle issues were caused by the vaccine, although she doesn’t have any written notes from a doctor to support causation.
Similar reports to Teseniar's have appeared in the Vaccine Adverse Event Reporting System, a public database used by the CDC and Food and Drug Administration to monitor vaccine safety. Database searches for post-COVID vaccine cutaneous T-cell lymphoma, T-cell lymphoma, and non-Hodgkin lymphoma, which are related diseases, yielded a total of 36 reports. A search for irregular menstruation showed 3,931 reports, and a search for hysterectomy showed 94 reports. A VAERS website disclaimer states that reports “may contain information that is incomplete, inaccurate, coincidental, or unverifiable,” and that “VAERS reports alone cannot be used to determine if a vaccine caused or contributed to an adverse event or illness.”
Moderna did not respond to a request for comment.
The CICP wouldn’t be much help to Teseniar. Her insurance already covered her medical expenses, and she wouldn’t be able to claim lost wages since she wasn’t working at the time she got vaccinated. The only thing left would be compensation for pain and suffering – which the CICP doesn’t cover.
Dreisbach says he believes the lack of compensation for pain and suffering is “absolutely unacceptable.”
“The concept of damages in a lawsuit is that the injured party should be made whole,” he said. “The question is, ‘How do you make up for me spending my days in a bathtub? How do you make up for me not being able to go to my son's lacrosse game?’ The answer is, you can't. The only thing that you can do is try to substitute a monetary amount instead.”
For Zimmerman, pain and suffering came last month when her doctor issued her a "permanent" disability parking placard. She had expected a temporary, one-year renewal. “It made me cry,” she said.
“I assured people who hesitated to get vaccinated that they would not be experimented on and left injured like people historically. I assured them that ethical protocol has advanced since then,” she said. “I am learning that what I was trained as a researcher is not applying in the real world.”