Commesso v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 16-455V Filed: June 27, 2016 Unpublished **************************** LINDA COMMESSO, * * v. * Petitioner, * Ruling on Entitlement; Concession; * Influenza Vaccination; * Shoulder Injury Related to Vaccine SECRETARY OF HEALTH * Administration (“SIRVA”); AND HUMAN SERVICES, * Special Processing Unit (“SPU”) * Respondent. * * **************************** Ronald Homer, Conway, Homer & Chin-Caplan, P.C., Boston, MA, for petitioner.

Darryl Wishard, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT1 Dorsey, Chief Special Master: On April 11, 2016, Linda Commesso (“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”). Petitioner alleges that she suffered a left shoulder injury resulting from the influenza vaccine she received on September 20, 2013. Petition at 1. Petitioner further alleges that she received her vaccination in the United States, that she suffered the residual effects of her injury for more than six months, and that neither she nor any other person has filed a lawsuit or accepted a settlement for her injury, alleged as vaccine caused. Id. at ¶¶ 16-18. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913 (codified as amended at 44 U.S.C. § 3501 note (2012)). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other information, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, the undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

On June 24, 2016, respondent filed her Rule 4(c) report in which she concedes that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent “has concluded that petitioner’s alleged injury is consistent with shoulder injury related to vaccine administration (“SIRVA”), and that it was caused-in-fact by the flu vaccine she received on September 20, 2013.” Id. at 4.

Respondent further indicates that she “did not identify any other causes for petitioner’s SIRVA, and records show that she suffered the sequela of this injury for more than six months.” Id. Respondent believes “based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act.” Id. In view of respondent’s concession and the evidence before me, I find that petitioner is entitled to compensation.

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master