United States Court of Federal Claims, 2019

Downer v. Secretary of Health and Human Services

United States Court of Federal Claims · Decided September 17, 2019 · Nora Beth Dorsey

Opinion

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-1011V

Filed: June 12, 2019 UNPUBLISHED

GLENDER DOWNER,

Petitioner, Special Processing Unit (SPU); v. Ruling on Entitlement; Concession; Table Injury; Influenza (Flu) Vaccine; SECRETARY OF HEALTH AND Shoulder Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA) Respondent.

Jimmy A. Zgheib, Zgheib Sayad, P.C., White Plains, NY, for petitioner.

Linda Sara Renzi, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT 1 Dorsey, Chief Special Master:

On July 13, 2018, 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”). Petitioner alleges that her September 14, 2017 influenza (“flu”) vaccination caused her to suffer a Shoulder Injury Related to Vaccine Administration (“SIRVA”). Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On June 10, 2019, respondent filed his Rule 4(c) report in which he concedes that petitioner is entitled to compensation in this case. Respondent’s Rule 4(c) Report at 1. Specifically, respondent indicates that medical personnel at the Division of Injury Compensation Programs, Department of Health and Human Services (“DICP”) has reviewed the petition and medical records filed in this case, and has concluded that compensation is appropriate. DICP has concluded that petitioner’s alleged injury is consistent with SIRVA as defined on the Vaccine Injury Table. Specifically, petitioner had no history of pain, inflammation, or dysfunction of her left shoulder for over two years prior to vaccination; pain occurred within 48 hours after receipt of an intramuscular vaccination; pain was limited to the shoulder in which the vaccine was administered; and no other condition or abnormality has been identified to explain petitioner’s shoulder pain. 42 C.F.R. §§ 100.3(a), (c)(10). Additionally, Id. at 6. Respondent further agrees that based on the medical records outlined above, petitioner suffered the residual effects of her condition for more than six months. Therefore, based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act. See 42 U.S.C. § 300aa- 13(a)(1)(B); 42 U.S.C. § 300aa-11(c)(1)(D)(i).

Id.

In view of respondent’s position and the evidence of record, the undersigned finds that petitioner is entitled to compensation.

IT IS SO ORDERED. s/Nora Beth Dorsey

Nora Beth Dorsey

Chief Special Master

1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. This means the ruling will be available to anyone with access to the internet. 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. Because this unpublished ruling contains a reasoned explanation for the action in this case, undersigned is required to post it on the United States Court of Federal Claims' website in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). 2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755.

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