Heffley v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 19-1613V UNPUBLISHED

MELISSA HEFFLEY, Chief Special Master Corcoran

Petitioner, Filed: July 23, 2021 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.

Camille Michelle Collett, U.S. Department of Justice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES1

On October 16, 2019, Melissa Heffley filed a petition for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.2 (the “Vaccine Act”). On July 14, 2021, Petitioner filed an amended petition. In the amended petition, Petitioner alleges that she suffered a shoulder injury related to vaccine administration (“SIRVA”) as a result of an influenza vaccine received on December 7, 2017. Amended Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On July 23, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On July 23, 2021, Respondent filed a proffer on award of compensation (“Proffer”) indicating Petitioner should be awarded $52,500.00 for pain and suffering and $285.64 to satisfy the State of Washington Medicaid lien. Proffer at 1-2. 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 the following:

• A lump sum payment of $52,500.00 in the form of a check payable to

Petitioner; and • A lump sum payment of $285.64, representing compensation for satisfaction of the State of Washington Medicaid lien, in the form of a check payable jointly to Petitioner and:

OPTUM Washington Apple Health (File #41037221) L-3994 Columbus, OH 43260-3994 Tax ID: XX-XXXXXXX

Petitioner agrees to endorse the check in the amount of $285.64 for satisfaction of the Medicaid lien.

These amounts represent compensation for all elements of compensation 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

)

MELISSA HEFFLEY, )

)

Petitioner, )

) No. 19-1613V v. ) Chief Special Master Corcoran

) ECF SECRETARY OF HEALTH AND HUMAN ) SERVICES, )

)

Respondent. )

)

PROFFER ON AWARD OF COMPENSATION

On May 24, 2021, respondent filed a Vaccine Rule 4(c) report concluding that petitioner suffered an injury that is compensable under the National Childhood Vaccine Injury Act of 1986, as amended, 42 U.S.C. §§ 300aa-10 to -34, that is, a shoulder injury related to vaccine administration (“SIRVA”), as defined in the Vaccine Injury Table. ECF No. 19. Accordingly, on July 23, 2021, the Chief Special Master issued a Ruling on Entitlement. ECF No. 23. I. Compensation for Vaccine Injury-Related Items

A. Pain and Suffering Based upon the evidence of record, respondent proffers that petitioner should be awarded a lump sum of $52,500.00, for pain and suffering, in the form of a check payable to petitioner. Petitioner agrees.

B. Medicaid Lien Respondent proffers that petitioner should be awarded funds to satisfy the State of Washington Medicaid lien in the amount of $285.64, which represents full satisfaction of any right of subrogation, assignment, claim, lien, or cause of action the State of Washington may have against any individual as a result of any Medicaid payments the State of Washington has made to or on behalf of petitioner from the date of her eligibility for benefits through the date of judgment in this case as a result of her alleged vaccine-related injury suffered on or about December 7, 2017 under Title XIX of the Social Security Act.

The above amounts represent all elements of compensation to which petitioner would be entitled under 42 U.S.C. § 300aa-15(a). Petitioner agrees.

II. Form of the Award

The parties recommend that compensation provided to petitioner should be made through two lump sum payments described below, and request that the Chief Special Master’s decision and the Court’s judgment award the following: 1

A. A lump sum payment of $52,500.00 in the form of a check payable to petitioner; and B. A lump sum payment of $285.64, representing compensation for satisfaction of the

State of Washington Medicaid lien, in the form of a check payable jointly to petitioner and:

OPTUM Washington Apple Health (File #: 41037221) L-3994 Columbus, OH 43260-3994 Tax ID: XX-XXXXXXX

Petitioner agrees to endorse the check in the amount of $285.64 for satisfaction of the Medicaid lien. Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Respectfully submitted, BRIAN M. BOYNTON Acting Assistant Attorney General C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division HEATHER L. PEARLMAN Deputy Director Torts Branch, Civil Division DARRYL R. WISHARD Assistant Director Torts Branch, Civil Division /s/Camille M. Collett CAMILLE M. COLLETT 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) 616-4098 E-mail: [email protected] DATED: July 23, 2021