Hertzog v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 20-1339V UNPUBLISHED

PATRICIA HERTZOG, Chief Special Master Corcoran

Petitioner, Filed: February 3, 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)

Bridget Candace McCullough, Muller Brazil, LLP, Dresher, PA, for Petitioner. Lara Ann Englund, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1

On October 7, 2020, Patricia Hertzog 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 left shoulder injuries related to vaccine administration (“SIRVA”) as a result of an influenza vaccine received on September 24, 2018. Petition at 1. Petitioner further alleges the vaccine was received in the United States, her condition persisted for more than six months, and neither Petitioner, nor any other party, has ever filed an action or received compensation in the form of an award or settlement for Petitioner’s vaccine-related injury. Petition at ¶¶ 2, 10-12. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On February 1, 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 history of pain, inflammation, or dysfunction in her left shoulder; her pain occurred within 48 hours of receipt of an intramuscular vaccination; her pain and reduced range of motion were limited to the shoulder in which the vaccine was administered; and no other condition or abnormality was identified to explain her symptoms.” Id. at 4. Respondent further agrees that “given the medical records outlined [in the Rule 4(c) Report], the statutory six month sequela requirement has been satisfied. Therefore, based on the current record, petitioner has satisfied all legal prerequisites for compensation under the Act.” Id. at 4-5 (citation omitted).

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