              In the United States Court of Federal Claims
                                       No. 13-710 V

                                 (Filed October 3, 2014)1

************************
RAYMOND SOMOSOT and                        *
WANWILAI SOMOSOT, on behalf of             *
R.D.S., a minor,                           *
                                           *
                                                National Childhood Vaccine
                   Petitioners,            *
                                                Injury Act of 1986, 42 U.S.C.
                                           *
                                                §§ 300aa-1 to -34 (2012);
            v.                             *
                                                Untimely Petition under 42
                                           *
                                                U.S.C. § 300aa-16(a)(2).
SECRETARY OF HEALTH AND                    *
HUMAN SERVICES,                            *
                                           *
                   Respondent.             *
************************
      Lorraine J. Mansfield, Las Vegas, NV, for petitioners.

       Lynn E. Ricciardella, United States Department of Justice, with whom were
Stuart F. Delery, Assistant Attorney General, Rupa Bhattacharyya, Director,
Vincent J. Matanoski, Deputy Director, and Gabrielle M. Fielding, Assistant
Director, Washington, DC, for respondent.
                           _________________________

                                     OPINION
                             _________________________

BUSH, Senior Judge.



  1
    / Pursuant to Rule 18(b) of Appendix B of the Rules of the United States Court of Federal
Claims, this Opinion and Order was initially filed under seal on September 15, 2014. Pursuant
to ¶ 4 of the ordering language, the parties were to propose redactions of the information
contained therein on or before September 30, 2014. No proposed redactions were submitted to
the court.
       Now pending before the court is petitioners’ motion for review of the special
master’s dismissal of petitioners’ petition for compensation under the National
Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (2012) (the
Vaccine Act). See Somosot ex rel. R.D.S. v. Sec’y of Health & Human Servs., No.
13-710V, 2014 WL 1926491 (Fed. Cl. Spec. Mstr. Apr. 24, 2014). Petitioners seek
compensation on behalf of their son R.D.S., who allegedly developed cerebral
palsy (CP) as a result of an influenza vaccination administered on December 19,
2007. The special master dismissed the petition as untimely under 42 U.S.C.
§ 300aa-16(a)(2), based on the special master’s finding that R.D.S. first displayed
symptoms of CP more than three years before the filing of the petition on
September 23, 2013. The court, finding no error in the special master’s findings of
fact or conclusions of law, sustains the dismissal.

                                      BACKGROUND2

I.       Factual Background

      R.D.S. was born on March 15, 2007. Ex. 1. Within days of his delivery,
R.D.S. was observed to be a “poor feeder” and his head circumference was
measured to be below the second percentile for his age, which meets the definition
of microcephaly. Ex. 4 at 5; Ex. A at 2.3

       R.D.S. received an influenza vaccination during his nine-month well-baby
visit on December 19, 2007. Ex. 2. Nearly one month later, on January 15, 2008,
R.D.S. visited his pediatrician after being seen in the emergency room four days
earlier with a cough, runny nose, wheezing, and fever. Ex. 5 at 20. The
pediatrician diagnosed bronchiolitis. Id. On March 18, 2008, R.D.S. returned to


   / The facts recounted here are undisputed, although the parties dispute the significance of
     2

certain well-established facts. The court relies on the record of underlying proceedings before
the special master, as well as petitioner’s motion for review (Pet’rs’ Mot.) and respondent’s
response to that motion (Resp’t’s Resp.). Petitioner’s exhibits before the special master were
numbered (Exs. 1-11), whereas respondent’s one exhibit was marked alphabetically (Ex. A).

    / According to Dr. Terry Dalle-Tezze, a medical officer with the Department of Health and
     3

Human Services, Division of Vaccine Injury Compensation, microcephaly is defined as “a head
circumference that is 3 standard deviations below the mean of the 50th percentile, [i.e.,] the 5th
percentile.” Ex. A at 2.

                                                 2
his pediatrician after experiencing one week of low-grade fever, runny nose, and
cough. Id. at 22. The pediatrician diagnosed an upper respiratory infection, and
also observed “gross motor delays.” Id. at 22-23.

       R.D.S. visited his pediatrician again on April 3, 2008, at his one-year well-
baby visit, after having visited the emergency room a few days earlier with acute
wheezing and constant nasal discharge. Ex. 5 at 24. The pediatrician noted that
R.D.S. appeared to have “decreased axial skeletal tone” and that his parents stated
that he had difficulty sitting independently. Id. On May 27, 2008, at R.D.S.’s
fourteen-month well-baby visit, his pediatrician observed that R.D.S. had “global
developmental delays” and “delayed speech.” Id. at 28.

      On June 27, 2008, R.D.S. was seen by Shadi Usefi-Moridani, a pediatric
gastroenterology nurse practitioner, for a “history of vomiting” which had
increased in frequency over time. Ex. 6 at 6. His parents reported that R.D.S. was
vomiting after almost every feeding, was refusing to eat, and was losing weight.
Id. The nurse practitioner noted that R.D.S. was receiving early intervention
services for his developmental delay. Id. At a follow-up visit on August 1, 2008,
R.D.S. was noted to have a “history of failure to thrive, poor weight gain and
hypertonic muscles with developmental delay.” Id. at 3.

       On October 1, 2008, R.D.S. visited Dr. Donald Johns, a pediatric
neurologist, because he was “not eating well” and was “behind on [his] motor
skills.” Ex. 7 at 15. R.D.S.’s parents indicated that he could not crawl, walked
only with a walker, and did not point to indicate his needs. Id. Dr. Johns observed
that R.D.S. “[s]its only with support.” Id. at 14. Dr. Johns diagnosed “[s]evere
microcephaly,” and noted that he was “concerned about [a] possible degenerative
condition.” Id.

       On December 18, 2008, R.D.S. had a genetics consultation with Dr. Colleen
Morris upon referral for microcephaly and developmental delay. Ex. 5 at 29.
R.D.S.’s mother reported to Dr. Morris that R.D.S.’s development, although
progressing normally for the first four months of his life, “seemed to stop” after he
became ill at age nine months. Id. at 30. R.D.S.’s mother also noted that R.D.S.
often “choke[d] and cough[ed] during feeding” and had “head lag” and “bilateral
cortical thumbs.” Id. By age nineteen months, R.D.S. was not walking
independently and was receiving physical therapy once per week. Id. Upon

                                          3
examining R.D.S., Dr. Morris observed him to have a head circumference below
the third percentile for his age, as well as “ridging of the anterior sagittal and
metopic sutures” and “frontal narrowing of the cranium.” Id. R.D.S. was also
noted to have “hyperreflexia in the lower extremities” and tight heel cords. Id. at
31. In addition, R.D.S. stood only on his toes when made to stand and bear weight.
Id. Based on her examination, Dr. Morris diagnosed microcephaly and
hypertonicity. Id.

       R.D.S. began with a new pediatric practice, Sunshine Valley Pediatrics
(Sunshine), in or about June 2009. Ex. 8. R.D.S.’s medical records from Sunshine
reveal that he was consistently assessed to have severe developmental delays from
June 2009 through the end of 2010. Id. at 2, 24-28.

       On August 13, 2009, R.D.S. visited Dr. Johns for a second neurological
evaluation. Ex. 7 at 11-12. Dr. Johns observed that R.D.S. walked on his toes,
flexed his elbows, and pronated his forearms when supported in a standing
position. Id. at 11. Dr. Johns diagnosed microcephaly and developmental delay,
and recommended that R.D.S. receive a pediatric orthopedic evaluation. Id. at 11-
12.

        On August 31, 2009, R.D.S. visited Dr. Howard Baron, a pediatric
gastroenterologist. Ex. 6 at 21-22. According to Dr. Baron’s notes, R.D.S. was
reported to be choking on water and solids, and was only able to eat pureed food.
Id. at 21. In addition, although R.D.S. was working on drinking through a straw,
he was still exclusively using a bottle to consume liquids. Id. Dr. Baron assessed
“[f]ailure to thrive” and noted that R.D.S. was “limited in [his] ability to take a
variety of [food] textures.” Id. at 22.

       On December 17, 2009, R.D.S. had a neurology consultation with Dr.
Roshan Raja, another pediatric neurologist. Ex. 7 at 1-3. According to Dr. Raja’s
notes, R.D.S. was first noted to have developmental problems at nine months old,
when he experienced a “significant viral infection.” Id. at 1. After the infection,
R.D.S. “regressed further with some aspects, such as [his] speech and weight.” Id.
For example, R.D.S. was noted to be “stiff” and to have “cortical thumbing.” Id.
By the time of Dr. Raja’s examination, R.D.S. was still not walking independently,
wore braces and wrist splints, and had a tendency to “tiptoe” on his ride side when
standing. Id. at 1-2. Dr. Raja also noted that R.D.S.’s feeding had “only mildly

                                          4
improved.” Id. at 1. Based upon his observations, Dr. Raja diagnosed
developmental delays, “post-infectious worsening of delays,” microcephaly, and
hypertonia. Id. at 3.

      The first reference to CP in R.D.S.’s medical records occurred on May 12,
2011, when R.D.S. was examined by Dr. Wesley Robertson, a pediatrician at
Sunshine, following a head injury. Ex. 8 at 18. Dr. Robertson listed CP as a
diagnosis.4 Id. The pediatric records thereafter consistently listed CP as one of
R.D.S.’s diagnoses. E.g., Ex. 8 at 2, 6-8, 10-11, 15-17.

      On May 9, 2013, Dr. Robertson wrote on a prescription pad that R.D.S. had
developed a “severe fever” two weeks after receiving an influenza vaccination at
nine months of age, and thereafter developed “severe” CP. Ex. 9 at 2. Dr.
Robertson noted that “it is possible the vaccine was the cause of the CP.” Id.

II.    Procedural History

       Petitioners filed their petition for compensation under the Vaccine Act on
September 23, 2013, alleging that R.D.S. developed CP as a result of the influenza
vaccination he received on December 19, 2007. On January 13, 2014, the special
master ordered petitioners to show cause why their claim should not be dismissed
as untimely pursuant to 42 U.S.C. § 300aa-16(a)(2). In her order, the special
master noted that R.D.S.’s medical records revealed that “the first symptom or
manifestation of onset [of R.D.S.’s CP] occurred early in 2008,” more than three
years before the filing of the petition. Order of Jan. 13, 2014, at 5.

       Petitioners filed a response on February 6, 2014, alleging that the symptoms
of R.D.S.’s CP first manifested in August 2011. Respondent filed a response to
petitioners’ response on March 7, 2014, asserting that the petition was filed after
the expiration of the statutorily prescribed limitations period because R.D.S. began
showing symptoms of CP as early as 2008. Respondent attached to her response a
declaration prepared by Dr. Terry Dalle-Tezze, a medical officer with the
Department of Health and Human Services, Division of Vaccine Injury


  4
   / The special master incorrectly identified May 9, 2011 as the date on which R.D.S.’s treating
physicians first noted CP as a diagnosis. See Somosot, 2014 WL 1926491, at *3 (citing Ex. 8 at
18, Ex. 9 at 2).

                                               5
Compensation. Ex. A. Upon reviewing R.D.S.’s medical records, Dr. Dalle-Tezze
concluded that R.D.S. “had microcephaly from birth, failure to thrive from six
months of age, and demonstrated signs of persistent developmental delay and
abnormal muscle tone beginning in 2008, which were all signs and symptoms of
what was subsequently diagnosed as cerebral palsy in 2011.” Id. at 2.

       On March 19, 2014, the special master issued an order in which she noted
that petitioners had not submitted any statement by a medical doctor refuting Dr.
Dalle-Tezze’s opinion that R.D.S. had displayed symptoms of CP before 2011. On
April 16, 2014, petitioners filed a status report stating that they had no additional
information to file in this case.

        On April 24, 2014, the special master issued her decision dismissing the
petition as untimely under 42 U.S.C. § 300aa-16(a)(2). Based upon her review of
R.D.S.’s medical records as well as the declaration submitted by Dr. Dalle-Tezze,
the special master found that “the first symptoms of R.D.S.’s CP occurred in 2008
or earlier,” more than three years before the filing of the petition on September 23,
2013. Somosot, 2014 WL 1926491, at *7. Since the Vaccine Act requires that all
petitions for vaccine-related injuries be filed within the three-year period from the
first symptom or manifestation of onset, the special master determined that
petitioners had filed their petition outside of the three-year statute of limitations.

       Petitioners filed a timely motion for review of that decision on May 6, 2014,
asserting that the special master’s dismissal was arbitrary, capricious, an abuse of
discretion, and not in accordance with law.

                                   DISCUSSION

I.    Standards of Review

       This court has jurisdiction to review the decision of a special master in a
Vaccine Act case. 42 U.S.C. § 300aa-12(e)(2). “Under the Vaccine Act, the Court
of Federal Claims reviews the decision of the special master to determine if it is
‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with
law[.]’” de Bazan v. Sec’y of Health & Human Servs., 539 F.3d 1347, 1350 (Fed.
Cir. 2008) (alteration in original) (quoting 42 U.S.C. § 300aa-12(e)(2)(B), and
citing Althen v. Sec’y of Health & Human Servs., 418 F.3d 1274, 1277 (Fed. Cir.

                                           6
2005)). The court may sustain the special master’s decision, 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, or remand the petition to the special master
for further action in accordance with the court’s decision. 42 U.S.C. § 300aa-
12(e)(2).

     This court uses three distinct standards of review in Vaccine Act cases,
depending upon which aspect of a special master’s judgment is under scrutiny:

             These standards vary in application as well as degree of
             deference. Each standard applies to a different aspect of
             the judgment. Fact findings are reviewed . . . under the
             arbitrary and capricious standard; legal questions under
             the “not in accordance with law” standard; and
             discretionary rulings under the abuse of discretion
             standard.

Munn v. Sec’y of the Dep’t of Health & Human Servs., 970 F.2d 863, 870 n.10
(Fed. Cir. 1992).

        The arbitrary and capricious standard of review, applied to the special
master’s factual findings, is limited in scope and is highly deferential. Lampe v.
Sec’y of Health & Human Servs., 219 F.3d 1357, 1360 (Fed. Cir. 2000); Burns v.
Sec’y of the Dep’t of Health & Human Servs., 3 F.3d 415, 416 (Fed. Cir. 1993);
Munn, 970 F.2d at 870 (noting that the arbitrary and capricious standard of review
is “well understood to be the most deferential possible”) (citations omitted). Under
this standard, “[i]f 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 the Dep’t of Health & Human Servs., 940 F.2d 1518, 1528 (Fed. Cir.
1991).

      When the court’s review of a special master’s decision involves statutory
construction or other legal issues, the “not in accordance with law” standard is
applied. Hines, 940 F.2d at 1527. Under that standard, the court reviews the
special master’s legal conclusions de novo, without deference. Avera v. Sec’y of

                                          7
Health & Human Servs., 515 F.3d 1343, 1347 (Fed. Cir. 2008); Saunders v. Sec’y
of the Dep’t. of Health & Human Servs., 25 F.3d 1031, 1033 (Fed. Cir. 1994).

       The third standard of review, abuse of discretion, is applicable when the
special master excludes evidence or otherwise limits the record upon which he
relies. See Munn, 970 F.2d at 870 n.10. This standard of review “will rarely come
into play except where the special master excludes evidence.” Id.

       In this case, the court reviews the special master’s factual findings as to the
timing of R.D.S.’s first symptoms of CP under the deferential arbitrary and
capricious standard. E.g., Carson v. Sec’y of Health & Human Servs., 97 Fed. Cl.
620, 624-25 (2010) (Carson I), aff’d, 727 F.3d 1365 (Fed. Cir. 2013) (Carson II).
By contrast, the special master’s interpretation and application of the Vaccine
Act’s statute of limitations present questions of law which the court reviews de
novo. Goetz v. Sec’y of Health & Human Servs., 45 Fed. Cl. 340, 341 (1999),
aff’d, 4 F. App’x 827 (Fed. Cir. 2001).

II.    The Special Master Did Not Err in Dismissing the Petition as Untimely

       Petitioners argue that the special master erred in dismissing their claim as
untimely under the Vaccine Act’s three-year statute of limitations. Pursuant to that
statute, “no petition may be filed for compensation under the Program for [a
vaccine-related] injury after the expiration of 36 months after the date of the
occurrence of the first symptom or manifestation of onset or the significant
aggravation of such injury.” 42 U.S.C. § 300aa-16(a)(2).

       Petitioners assert two objections to the special master’s decision. First,
petitioners dispute the special master’s factual finding that R.D.S. displayed
symptoms of CP “in 2008 or earlier.” Somosot, 2014 WL 1926491, at *7.
According to petitioners, “there is no medical evidence in the record that R.D.S.
suffered from cerebral palsy before August 24, 2011, the date cerebral palsy first
appears in the medical records.”5 Pet’rs’ Mot. at 10; see also id. at 7. In

  5
   / As noted by the special master and by respondent, petitioners incorrectly identify August
24, 2011 as the date on which CP is first mentioned in R.D.S.’s medical records. See Somosot,
2014 WL 1926491, at *4 & n.2; Resp’t’s Resp. at 6 & n.4, 10 & n.5. As previously discussed,
Dr. Robertson first noted CP as a diagnosis on May 12, 2011. Although CP was also listed as a
                                                                                     (continued...)


                                               8
petitioners’ view, the special master erred in finding that R.D.S.’s pre-2011
symptoms were symptoms of CP because those symptoms were indicative of
conditions other than CP and were not sufficient to support a CP diagnosis. Id. at
13, 15.

       Second, petitioners argue that the special master abused her discretion by
failing to give “proper weight” to the fact that R.D.S.’s treating physicians did not
diagnose CP until 2011. Pet’rs’ Mot. at 12 (stating that “[t]he special master erred
in granting little importance to the contemporaneous medical records”
demonstrating that CP was not diagnosed until 2011). Had the special master
afforded appropriate weight to this fact, petitioners contend, she would have found
petitioners’ claim to be within the statutory limitations period. Id. at 11-17.

        Petitioners’ assertions of error reflect a misunderstanding of the applicable
legal standard. As the special master correctly noted, the Federal Circuit has held
that the Vaccine Act’s statute of limitations “begins to run on the calendar date of
the occurrence of the first medically recognized symptom or manifestation of onset
of the injury claimed by the petitioner.” Cloer v. Sec’y of Health & Human Servs.,
654 F.3d 1322, 1325 (Fed. Cir. 2011) (en banc); see also Markovich v. Sec’y of
Health and Human Servs., 477 F.3d 1353, 1360 (Fed. Cir. 2007) (holding that the
“first symptom or manifestation of onset” of a vaccine injury, for the purposes of
42 U.S.C. § 300aa-16(a)(2), “is the first event objectively recognizable as a sign of
a vaccine injury by the medical profession at large”). Contrary to petitioners’
argument, “it is the first symptom or manifestation of an alleged vaccine injury, not
first date when diagnosis would be possible,” that triggers the Vaccine Act’s
statute of limitations. Carson II, 727 F.3d at 1369 (citing Markovich, 477 F.3d at
1357-58).

        In Markovich, the Federal Circuit noted the disjunctive nature of the phrase
“first symptom or manifestation of onset,” and concluded that “either a ‘symptom’
or a ‘manifestation of onset’ can trigger the running of the statute, whichever is
first.” 477 F.3d at 1357. A symptom, the court explained, may be subtle and
“indicative of a variety of conditions or ailments.” Id. at 1357. A manifestation of
onset, on the other hand, “is more self-evident of an injury and may include
significant symptoms that clearly evidence an injury.” Id. However, neither a

(...continued)
diagnosis on August 24, 2011, Ex. 8, at 2, 15, that is not the first reference.

                                                  9
symptom nor a manifestation of onset requires a definitive diagnosis of injury. Id.
at 1358.

       Applying this legal standard, the special master reasonably concluded that
R.D.S. began experiencing symptoms of his later-diagnosed CP “in 2008 or
earlier.” Somosot, 2014 WL 1926491, at *7. In making this factual determination,
the special master relied upon the contemporaneous medical records prepared by
R.D.S.’s treating physicians in 2007 and 2008, which contained repeated
references to R.D.S.’s developmental delay, abnormal motor skills and muscle
tone, failure to thrive, and microcephaly. Id. at *6; see, e.g., Ex. 5 at 23 (March 18,
2008 observation of “gross motor delays”), 24 (April 3, 2008 observation of
“decreased axial skeletal tone” and inability to sit independently), 28 (noting
global developmental delays and delayed speech as of May 27, 2008), 29-31
(December 18, 2008 genetics consultation noting that R.D.S. could not walk
independently and suffered from microcephaly and hypertonicity); Ex. 6 at 3
(August 1, 2008 pediatric gastroenterology visit noting failure to thrive, poor
weight gain, hypertonic muscles, and developmental delay); Ex. 7 at 14-15
(October 1, 2008 pediatric neurology visit revealing that R.D.S. could not crawl,
walked only with a walker, sat only with support, did not point to indicate his
needs, and had severe microcephaly).

       The special master also relied upon Dr. Dalle-Tezze’s declaration, which
explained that the aforementioned symptoms were symptoms of R.D.S.’s
subsequently diagnosed CP. Somosot, 2014 WL 1926491, at *6 (noting Dr. Dalle-
Tezze’s conclusion that R.D.S. “‘had microcephaly from birth, failure to thrive
from six months of age, and demonstrated signs of persistent developmental delay
and abnormal muscle tone beginning in 2008, which were all signs and symptoms
of what was subsequently diagnosed as cerebral palsy in 2011’” (quoting Ex. A at
2)). Although the special master afforded petitioners an opportunity to present an
affidavit by a medical doctor refuting Dr. Dalle-Tezze’s conclusions, petitioners
declined to offer any rebuttal evidence.

       In view of Dr. Dalle-Tezze’s unrebutted testimony, which confirms that
R.D.S.’s developmental delay, abnormal motor skills and muscle tone, failure to
thrive, and microcephaly were objectively recognizable by the medical profession
at large as constituting symptoms of CP in 2007 and 2008, the court cannot
conclude that the special master acted irrationally in finding that the first symptom

                                          10
of R.D.S.’s CP occurred in 2008 or earlier. Nor does the court find any error in the
special master’s application of the legal standard articulated by the Federal Circuit
in Markovich and Cloer. Under that standard, as the special master correctly
noted, “[t]he statute of limitations can and often does begin to run before a
petitioner’s condition is diagnosed definitively,” and the fact that R.D.S.’s treating
physicians did not diagnose CP until 2011 is of no moment. Somosot, 2014 WL
1926491, at *7; see Carson II, 727 F.3d at 1369; Markovich, 477 F.3d at 1358.
Accordingly, the special master did not err in dismissing petitioners’ claim as time-
barred under 42 U.S.C. § 300aa-16(a)(2).

       Finally, with respect to petitioners’ claim that the special master did not
afford “proper weight” to the opinions of R.D.S.’s treating physicians, see Pet’rs’
Mot. at 11-12, the court must disagree. None of the records pointed to by
petitioners contain medical opinions provided by treating physicians that address
the issue of whether R.D.S. had symptoms or manifestations of CP in 2008 or
earlier. That specific issue is addressed by Dr. Dalle-Tezze and Dr. Dalle-Tezze’s
opinion on that issue is unrebutted.

       Petitioners cannot proffer the absence of a diagnosis of CP in R.D.S.’s
medical records as of 2008 as a counterweight to the opinion of Dr. Dalle-Tezze.
The record before the special master contained no indication whether R.D.S.’s
treating physicians would agree or disagree that there is evidence of CP in R.D.S.’s
medical history through 2008. The court therefore rejects petitioners’ contention
that the special master failed to accord proper weight to the opinions of R.D.S.’s
treating physicians.

                                       CONCLUSION

             For the foregoing reasons, the court finds no error in the special
master’s dismissal of petitioners’ claim as untimely under 42 U.S.C. § 300aa-
16(a)(2). Accordingly, it is hereby ORDERED that

      (1)    Petitioners’ Motion for Review, filed May 6, 2014, is DENIED;

      (2)    The decision of the special master, filed April 24, 2014, is
             SUSTAINED;



                                          11
(3)   The Clerk’s Office is directed to ENTER final judgment in
      accordance with the special master’s decision of April 24, 2014; and

(4)   The parties shall separately FILE any proposed redactions to this
      opinion, with the text to be redacted clearly marked out or otherwise
      indicated in brackets, on or before September 30, 2014.



                                       /s/Lynn J. Bush
                                       LYNN J. BUSH
                                       Senior Judge




                                  12
