Perkins v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 18-0620V UNPUBLISHED

ERNEST PERKINS, Chief Special Master Corcoran

Petitioner, Filed: December 9, 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)

David Charles Richards, Christensen & Jensen, P.C., Salt Lake City, UT, for petitioner. Ida Nassar, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On May 1, 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 alleged that he suffered a shoulder injury related to vaccine administration (“SIRVA”) in his left shoulder as a result of an influenza (“flu”) vaccine administered on October 29, 2015. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 11, 2019, a ruling on entitlement was issued, finding Petitioner entitled to compensation for his SIRVA. On December 9, 2020, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $32,378.10, representing $30,000.00 for his pain and suffering and $2,378.10 for his past unreimbursable expenses. 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 $32,378.10, representing $30,000.00 for his pain and suffering and $2,378.10 for his actual unreimbursable expenses 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

IN THE UNITED STATES COURT OF FEDERAL CLAIMS

OFFICE OF SPECIAL MASTERS )

ERNEST PERKINS, )

)

Petitioner, )

) No. 18-620V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

)

Respondent. )

)

RESPONDENT’S PROFFER ON AWARD OF COMPENSATION

On May 1, 2018, Ernest Perkins (“petitioner”) filed a petition for compensation under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to 34 (“Vaccine Act” or “Act”), alleging that he suffered a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza vaccine on October 29, 2015. Petition at 1-2. On September 5, 2019, the Secretary of Health and Human Services (“respondent”) filed an Amended Vaccine Rule 4(c) Report advising that, in light of the Chief Special Master’s Findings of Fact ruling that the onset of petitioner’s left arm pain occurred within 48 hours of vaccination, and the medical evidence submitted in this case, respondent did not dispute that petitioner had satisfied all legal prerequisites for compensation under the Vaccine Act. Amended Rule 4(c) Report at 8 (ECF #29). On September 11, 2019, the Chief Special Master issued a Ruling on Entitlement, finding that petitioner was entitled to vaccine compensation for his shoulder injury related to vaccine administration (“SIRVA”). 1 See Ruling on Entitlement (ECF #30).

I. Items of Compensation

A. Pain and Suffering Respondent proffers that Ernest Perkins should be awarded $30,000.00 in actual and projected pain and suffering. This amount reflects that the award for projected pain and suffering has been reduced to net present value. See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.

B. Past Unreimbursable Expenses Evidence supplied by petitioner documents Ernest Perkin’s expenditure of past unreimbursable expenses related to his vaccine-related injury. Respondent proffers that petitioner should be awarded past unreimbursable expenses in the amount of $2,378.10, as provided under the Vaccine Act, 42 U.S.C. § 300aa-15(a)(1)(B). Petitioner agrees. II. Form of the Award

Petitioner is a competent adult. Evidence of guardianship is not required in this case. Respondent recommends that the compensation provided to Ernest Perkins should be made through a lump sum payment as described below and requests that the Chief Special Master’s decision and the Court’s judgment award the following 2: a lump sum payment of $32,378.10, representing compensation for pain and suffering ($30,000.00), and past unreimbursable expenses ($2,378.10), in the form of a check payable to petitioner, Ernest Perkins. respondent waives his right to seek review of such damages decision. However, respondent reserves his right, pursuant to 42 U.S.C. § 300aa-12(e), to seek review of the Chief Special Master’s September 11, 2019, entitlement decision.

III. Summary of Recommended Payments Following Judgment

Lump sum payable to petitioner, Ernest Perkins: $32,378.10

Respectfully submitted, JEFFREY BOSSERT CLARK 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/ Ida Nassar IDA NASSAR Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Benjamin Franklin Station Washington, D.C. 20044-0146 Tel: (202) 616-4186

DATED: December 9, 2020