Wilken v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-741V UNPUBLISHED

TINA WILKEN, Chief Special Master Corcoran Petitioner, Filed: August 28, 2020 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Damages Decision Based on Proffer; HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)

Maximillian J. Muller, Muller Brazil, LLP, Dresher, PA, for petitioner.

James Vincent Lopez, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1 On May 17, 2019, Tina Wilken 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 she suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”) as a result of her March 30, 2018 influneza (“flu”) vaccination.

Petition at 1. Petitioner further alleges that the vaccine was administered within the United States, that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. See Petition at ¶¶2, 11-13. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On August 24, 2020, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On August 26, 2020, Respondent filed a proffer on award of Because this unpublished decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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). This means the decision 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, I agree that the identified material fits within this definition, I will redact such material from public access.

National 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). compensation (“Proffer”) indicating Petitioner should be awarded $55,533.04. This is comprised of pain and suffering ($55,000.00) and past unreimbursed out-of-pocket medical expenses ($533.04). Proffer at 1. In the Proffer, Respondent represented that Petitioner agrees with the proffered award. Id. Based on the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump sum payment of $55,533.04 (comprised of pain and suffering ($55,000.00) and past unreimbursed out-of-pocket medical expenses ($533.04)) in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under § 15(a).

The clerk of the court is directed to enter judgment in accordance with this decision. 3 IT IS SO ORDERED.

s/Brian H. Corcoran Brian H. Corcoran Chief Special Master

Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice renouncing the right to seek review.

IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS ___________________________________ ) TINA WILKEN, ) ) Petitioner, ) ) No. 19-741V v. ) Chief Special Master Corcoran ) ECF SECRETARY OF HEALTH AND ) HUMAN SERVICES, ) ) Respondent. ) ____________________________________) RESPONDENT’S PROFFER ON AWARD OF COMPENSATION I. Compensation for Vaccine Injury-Related Items On August 24, 2020, respondent filed a Rule 4(c) Report conceding that petitioner is entitled to vaccine compensation for her Shoulder Injury Related to Vaccine Administration (“SIRVA”) injury suffered following receipt of an influenza (“flu”) vaccination on March 30, 2018. On August 24, 2020, a Ruling on Entitlement, adopting respondent’s recommendation, was issued.

Based upon the evidence of record, respondent proffers that petitioner 1 should be awarded $55,533.04. This is comprised of pain and suffering ($55,000) and past unreimbursed out-of-pocket medical expenses ($533.04), and represents all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). 2 Petitioner agrees.

Petitioner is a competent adult, therefore evidence of guardianship is not required in this case.

Should Petitioner die prior to entry of judgment, the parties reserve the right to move the Court for appropriate relief.

II. Form of the Award Respondent recommends that the compensation provided to petitioner should be made through: a lump sum of $55,533.04 in the form of a check payable to petitioner. This amount represents compensation for all damages that would be available under 42 U.S.C. § 300aa-15(a).

Petitioner agrees.

Respectfully submitted, ETHAN P. DAVIS Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division CATHARINE E. REEVES Deputy Director Torts Branch, Civil Division GABRIELLE M. FIELDING Assistant Director Torts Branch, Civil Division s/ JAMES V. LOPEZ James V. Lopez Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146, Ben Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-3655 Fax: (202) 616-4310 Email: [email protected] Dated: August 26, 2020