In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 16-232V
Filed: September 9, 2016
UNPUBLISHED
****************************
MELISSA WAGNER, *
*
Petitioner, * Damages Decision Based on Proffer;
v. * Influenza (“Flu”) Vaccination; Shoulder
* Injury Related to Vaccine Administration
SECRETARY OF HEALTH * (“SIRVA”); Special Processing Unit
AND HUMAN SERVICES, * (“SPU”)
*
Respondent. *
*
****************************
Mark L. Krueger, Krueger & Hernandez, S.C., Baraboo, WI, for petitioner.
Justine Elizabeth Walters, U.S. Department of Justice, Washington, DC, for respondent.
DECISION AWARDING DAMAGES 1
Dorsey, Chief Special Master:
On February 17, 2016, petitioner 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 synovitis and adhesive
capsulitis that was caused-in-fact by her October 16, 2014 influenza (“flu”) vaccination.
Petition at 1. The case was assigned to the Special Processing Unit of the Office of
Special Masters.
On August 8, 2016, a ruling on entitlement was issued, finding petitioner entitled
to compensation for a shoulder injury related to vaccine administration (“SIRVA”). On
September 8, 2016, respondent filed a proffer on award of compensation (“Proffer”)
indicating petitioner should be awarded $122,500.00. Proffer at 1. In the Proffer,
respondent represented that petitioner agrees with the proffered award. Based on the
1 Because this unpublished decision contains a reasoned explanation for the action in this case, the
undersigned intends 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). 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, the undersigned agrees that the identified material fits
within this definition, the undersigned 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 “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
record as a whole, the undersigned finds that petitioner is entitled to an award as stated
in the Proffer.
Pursuant to the terms stated in the attached Proffer, the undersigned awards
petitioner a lump sum payment of $122,500.00 in the form of a check payable to
petitioner, Melissa Wagner. This amount represents compensation for all damages
that would be available under § 300aa-15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision. 3
IT IS SO ORDERED.
s/Nora Beth Dorsey
Nora Beth Dorsey
Chief Special Master
3 Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint filing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
____________________________________
)
MELISSA WAGNER, )
)
Petitioner, )
)
v. ) No. 16-232V
) Chief Special Master Dorsey
) ECF
SECRETARY OF HEALTH AND ) SPU
HUMAN SERVICES, )
)
Respondent. )
____________________________________)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On February 17, 2016, petitioner, Melissa Wagner, filed a petition for compensation
under the National Childhood Vaccine Injury Act, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”),
alleging that she developed a left shoulder injury as a result of receiving an influenza vaccination
on October 16, 2014. On August 5, 2016, respondent filed her Rule 4(c) Report stating that
petitioner’s left shoulder injury is consistent with a shoulder injury related to vaccine
administration (“SIRVA”) and conceding that her SIRVA is compensable under the Vaccine
Act. Accordingly, on August 8, 2016, Chief Special Master Dorsey issued a Ruling on
Entitlement finding that petitioner is entitled to compensation for her SIRVA.
I. Items of Compensation
Based upon the evidence of record, respondent proffers that petitioner should be awarded
$122,500.00, which represents all elements of compensation to which petitioner is entitled under
42 U.S.C. § 300aa-15(a). 1 Petitioner agrees.
1
Should petitioner die prior to entry of judgment, the parties reserve the right to move the Court
for appropriate relief. In particular, respondent would oppose any award for future medical
expenses, future lost earnings, and future pain and suffering.
II. Form of the Award
The parties recommend that the compensation provided to petitioner should be made
through a lump sum payment of $122,500.00 in the form of a check payable to petitioner.
Petitioner agrees.
Respectfully submitted,
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
CATHARINE E. REEVES
Acting Deputy Director
Torts Branch, Civil Division
ANN D. MARTIN
Senior Trial Attorney
Torts Branch, Civil Division
s/ Justine Walters__________
JUSTINE WALTERS
Trial Attorney
Torts Branch, Civil Division
U.S. Department of Justice
P.O. Box 146, Benjamin Franklin Station
Washington, D.C. 20044-0146
Tel: (202) 307-6393
DATE: September 8, 2016
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