Cary v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 19-0981V UNPUBLISHED

REBECCA CARY, Chief Special Master Corcoran Petitioner, Filed: September 27, 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)

Theodore J. Hong, Maglio, Christopher & Toale PA, Seattle, WA, for Petitioner.

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

DECISION AWARDING DAMAGES1 On July 9, 2019, Rebecca Cary 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 received an influenza (“flu”) vaccination on February 27, 2018, and thereafter suffered from a left-sided shoulder injury related to vaccine administration (“SIRVA”). Petition at 1- 6. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 27, 2021, a ruling on entitlement was issued, finding Petitioner entitled to compensation for SIRVA. On September 24, 2021, Respondent filed a combined Rule 4(c) Report and proffer on award of compensation (“Rule 4/Proffer”) indicating Petitioner should be awarded a total of $177,966.61, consisting of $110,000.00 in pain and suffering, $66,533.80 in past lost wages, and $1,432.81 in unreimbursable expenses. Rule 4/Proffer at 9. In the Rule 4/Proffer, Respondent represented that Because this unpublished Decision contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).

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 Rule 4/Proffer.

Pursuant to the terms stated in the Rule 4/Proffer, I award Petitioner a lump sum payment of $177,966.61, consisting of $110,000.00 in pain and suffering, $66,533.80 in past lost wages, and $1,432.81 in unreimbursable expenses in the form of a check payable to Petitioner. This amount represents compensation for all damages that would be available under Section 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.