Tomchak v. Secretary of Health and Human Services

In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 21-1696V UNPUBLISHED

KARROLEE TOMCHAK, Chief Special Master Corcoran

Petitioner, Filed: September 2, 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.

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

Julia Marter Collison, U.S. Department of Justice, Washington, DC, for Respondent.

RULING ON ENTITLEMENT 1

On August 16, 2021, Karrolee Tomchak 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 a Table injury – Guillain-Barre Syndrome (GBS) – as a result of her October 22, 2019 influneza (“flu”) vaccination. Petition at 1. Petitioner further alleges that she suffered the residual effects of her injury for more than six months, and that there has been no prior award or settlement of a civil action on her behalf as a result of her injury. See Petition ¶¶ 12-12. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On September 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 that “[t]he facts of this case, as reflected in the petition and accompanying documents, have been reviewed by medical personnel at the Division of Injury Compensation Programs of the Department of Health and Human Services (“DICP”). DICP has concluded that petitioner’s claim meets the Table criteria for GBS.” Id. at 9. Respondent further agrees that

[w]ith respect to other statutory issues, the records show that the case was timely filed, 42 U.S.C. § 300aa-16(a)(2); that petitioner received the vaccine in the United States, 42 U.S.C. § 300aa-11(c)(1)(B)(i)(I); that the vaccine that petitioner received is set forth in the Vaccine Injury Table, 42 C.F.R. § 100.3(a)(XIV)(D); that petitioner’s injury lasted for at least six months, 42 U.S.C. § 300aa-11(c)(1)(D)(i); and that petitioner has not filed a prior action or received any prior compensation or award for an injury related to this vaccine, 42 U.S.C. § 300aa-11(c)(1)(E). Therefore, based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act.

Id. at 10.

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