Nolen v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS Filed: June 11, 2021

* * * * * * * * * * * * * * * RANDY NOLEN, * No. 19-1953V

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Petitioner, * Special Master Sanders

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v. *

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SECRETARY OF HEALTH * Ruling on Entitlement; Conceded; AND HUMAN SERVICES, * Tetanus-diphtheria-acellular-pertussis

* (“Tdap”) Vaccine; Shoulder Injury Related Respondent. * to Vaccine Administration (“SIRVA”)

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RULING ON ENTITLEMENT 1

On December 26, 2019, Randy Nolen (“Petitioner”) filed a petition for compensation under the National Vaccine Injury Compensation Program (“the Program”). Pet. at 1, ECF No. 1; 42 U.S.C. § 300aa-10 to -34 (2012). Petitioner alleges that he developed a right-sided shoulder injury related to vaccine administration (“SIRVA”) as a result of the tetanus-diphtheria-acellular- pertussis vaccine he received on October 5, 2018. Pet. at 1, 4.

On May 17, 2021, Respondent filed a report pursuant to Vaccine Rule 4(c) in which he concedes that Petitioner is entitled to compensation in this case. Resp’t’s Report at 1, ECF No. 19. Specifically, Respondent concluded that “compensation is appropriate because [P]etitioner meets the criteria for a presumed SIRVA, as defined by the Vaccine Injury Table.” Id. at 5 (citing 42 C.F.R. §§ 100.3(a), (c)(1); 42 U.S.C. § 300aa-13(a)(1)(B)).

A special master may determine whether a petitioner is entitled to compensation based upon the record. A hearing is not required. § 300aa-13; Vaccine Rule 8(d). In light of Respondent's concession and my review of the record, I find that Petitioner is entitled to compensation. This matter shall now proceed to the damages phase.

IT IS SO ORDERED. s/Herbrina D. Sanders Herbrina D. Sanders Special Master