Burke v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 21-1607V UNPUBLISHED

FRANK BURKE, Chief Special Master Corcoran Petitioner, Filed: July 8, 2022 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Guillain-Barre Syndrome (GBS) Respondent.

Danielle Strait, Maglio Christopher & Toale, PA, Seattle, WA, for Petitioner.

Steven Santayana, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT1 On July 23, 2021, Frank Burke 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 Guillain-Barré Syndrome (GBS) resulting from the adverse effects of influenza (flu) vaccination he received on September 29, 2019.

Petition at 1-2. Petitioner further alleges the vaccination was administered within the United States, his vaccine-related injuries have lasted more than six months, and neither he, nor any other party, has ever received compensation in the form of an award or settlement of his vaccine-related injuries. Petition at 2-3. The case was assigned to the Special Processing Unit of the Office of Special Masters.

1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 Ruling 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.

2National 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).

On July 8, 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. It is Respondent’s position that Petitioner “has satisfied the criteria set forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation (“QAI”), which afford petitioner a presumption of causation if the onset of GBS occurs between three and forty-two days after a seasonal flu vaccination, and there is no apparent alternative cause.” Id. at 9. Respondent further agrees that “the records show that [P]etitioner timely filed this case, received the flu vaccine in the United States, and satisfied the statutory severity requirement by suffering GBS which resulted in inpatient hospitalization and surgical intervention (tracheostomy). Therefore, based on the case record as it now stands, [P]etitioner has satisfied all legal prerequisites for compensation under the Act.”

Id. (citations 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