McKay v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-1057V UNPUBLISHED

TRACY DAWN MCKAY, Chief Special Master Corcoran

Petitioner, Filed: January 10, 2022 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)

Leah VaSahnja Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.

Emilie Williams, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1

On August 21, 2020, Tracy Dawn McKay 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 suffered from left shoulder injuries related to vaccine administration (“SIRVA”) as a result of an influenza vaccine received on October 12, 2018. Petition at 1. Petitioner further alleges that the vaccine was administered in the United States, she suffered residual symptoms in excess of six months, and she has not received compensation in the form of an award or settlement or filed a civil action for her vaccine-related injuries. Petition at ¶¶ 3, 14, 16. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On January 7, 2022, 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 agrees that “petitioner had no apparent 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; she suffered the onset of pain within forty-eight hours of vaccine administration; her 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 that would explain petitioner’s symptoms.” Id. at 5. Respondent further agrees that “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 suffering the residual effects or complications of the injury for more than six months after vaccine administration.” Id. at 5-6. Respondent adds that Petitioner avers she has not filed a civil action or received compensation for her injury, and is entitled to compensation. Id. at 6.

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