Balcer v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-901V UNPUBLISHED

RAYMOND BALCER, Chief Special Master Corcoran

Petitioner, Filed: November 19, 2021 v.

Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine;

Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA)

Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.

James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT 1

On July 24, 2020, Raymond Balcer 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 he suffered a Table injury – Shoulder Injury Related to Vaccine Administration (“SIRVA”) – as a result of his October 17, 2018 influneza (“flu”) vaccination. Petition at 1. Petitioner further alleges that the vaccine was administered within the United States, that he suffered the residual effects of his injury for more than six months, and that there has been no prior award or settlement of a civil action on his behalf as a result of his injury. See Petition at ¶¶14-16. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On November 17, 2021, 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 at 1. Specifically, Respondent indicates that

[m]edical personnel at the Division of Injury Compensation Programs, Department of Health and Human Services (“DICP”), have reviewed the petition and medical records filed in the case. It is [R]espondent’s position that [P]etitioner suffered a SIRVA as defined by the Vaccine Injury Table. Specifically, [P]etitioner had no recent history of pain, inflammation, or dysfunction of his left shoulder that would explain the alleged signs, symptoms, examination findings and/or diagnostic studies occurring after vaccine injection; the onset of pain occurred within forty-eight hours after receipt of an intramuscular vaccination; the pain was limited to the shoulder in which the vaccine was administered; and, no other condition or abnormality has been identified to explain [P]etitioner’s left shoulder pain. 42 C.F.R. §§ 100.3(a)(XIV)(B), (c)(10).

Id. at 3-4. Respondent further agrees that “[P]etitioner suffered the residual effects of his condition for more than six months”. Id. at 4 (citing § 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