Kaplan v. Secretary of Health and Human Services

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS

No. 13-950V Filed: March 5, 2014

*********************************************** MERLE KAPLAN, *

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Petitioner, * Conceded; SIRVA; Flu v. *

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SECRETARY OF THE DEPARTMENT * OF HEALTH AND HUMAN SERVICES, *

*

Respondent. *

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RULING ON ENTITLEMENT1

Gowen, Special Master:

On December 3, 2013, Merle Kaplan [“petitioner”] filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 [the “Vaccine Act” or “Program”]. The petition alleges that petitioner suffered from a shoulder injury related to vaccine administration [“SIRVA”] as a result of a trivalent influenza [“flu”] vaccine she received on October 24, 2012. Petition at 4, para. 18.

On March 3, 2014, respondent filed her Rule 4(c) report [“Respondent’s Report”], in which she concedes that petitioner is entitled to compensation in this case. Respondent’s Report at 6. Specifically, respondent submits that, “DVIC has concluded that petitioner’s alleged injury is consistent with a shoulder injury related to vaccine administration (“SIRVA”) and that it was caused in fact by the flu vaccine she received on October 24, 2012. Id.; See 42 U.S.C. §300aa-13(a)(1).

Respondent also agreed, based on petitioner’s medical records, that the statutory six month sequel requirement has been satisfied. Respondent’s Report at 6. See also Pet. Ex. 6 at 79; Pet Ex. 5 at 2-4.

In view of respondent’s concession and the evidence before me, I find entitlement to compensation based on an injury that was caused-in-fact by a covered vaccine. 42 C.F.R. § 100.3(a)(XIV). A separate damages order will issue. IT IS SO ORDERED. s/Thomas L. Gowen Thomas L. Gowen Special Master