Kaplan v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-654V UNPUBLISHED

DONA KAPLAN, as Executrix of the Chief Special Master Corcoran Estate of Harold Kaplan,

Filed: December 10, 2020 Petitioner,

v. Special Processing Unit (SPU);

Ruling on Entitlement; Concession; SECRETARY OF HEALTH AND Table Injury; Influenza (Flu) Vaccine; HUMAN SERVICES, Shoulder Injury Related to Vaccine

Administration (SIRVA) Respondent.

Mark Theodore Sadaka, Mark T. Sadaka, LLC, Englewood, NJ, for petitioner.

Ryan Daniel Pyles, U.S. Department of Justice, Washington, DC, for respondent.

RULING ON ENTITLEMENT 1

On May 2, 2019, Harold Kaplan filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq. 2 (the “Vaccine Act”). 3 Mr. Kaplan alleged that as a result of his October 2, 2017 influenza (“flu”) vaccination he suffered a Shoulder Injury Related to Vaccine Administration (“SIRVA”). See Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On December 8, 2020, 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 Recommending Compensation and Proffer of Compensation at 1, 3-4. Specifically, Respondent indicates that

[m]edical personnel at the Division of Injury Compensation Programs, Department of Health and Human Services (DICP), have reviewed the facts of this case and concluded that petitioner’s claim meets the Table criteria for SIRVA. Specifically, Mr. Kaplan had no history of pain, inflammation, or dysfunction of the affected shoulder prior to intramuscular vaccine administration that would explain the alleged signs, symptoms, examination findings, and/or diagnostic studies occurring after vaccine injection; he more likely than not suffered the onset of pain within forty-eight hours of vaccine administration; his pain and reduced range of motion were limited to the shoulder in which the intramuscular vaccine was administered; and there is no other condition or abnormality present that would explain Mr. Kaplan’s symptoms.

Id. at 3-4 (citing 42 C.F.R. § 100.3(a), (c)(10)). Respondent further agrees that “[w]ith respect to other statutory and jurisdictional issues, the records show that the case was timely filed, that the vaccine was received in the United States, and that petitioner satisfies the statutory severity requirement by Mr. Kaplan suffering the residual effects or complications of his injury for more than six months after vaccine administration.” Id. at 4 (citing 42 U.S.C. § 11(c)(1)(D)(i)).

In view of Respondent’s position and the evidence of record, I find that Petitioner is entitled to compensation.

IT IS SO ORDERED. s/Brian H. Corcoran Brian H. Corcoran Chief Special Master