Smith v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 17-0580V Filed: December 22, 2017 UNPUBLISHED CARLO SMITH, Petitioner, Special Processing Unit (SPU); v. Ruling on Entitlement; Concession; Table Injury; Influenza (Flu) Vaccine; SECRETARY OF HEALTH AND Shoulder Injury Related to Vaccine HUMAN SERVICES, Administration (SIRVA) Respondent. Andrew Donald Downing, Van Cott & Talamante, PLLC, Phoenix, AZ, for petitioner. Traci R. Patton, U.S. Department of Justice, Washington, DC, for respondent. RULING ON ENTITLEMENT1 Dorsey, Chief Special Master: On May 1, 2017, 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 alleged that he suffered a shoulder injury which meets the definition of the Table injury of Shoulder Injury Related to Vaccine Administration after receiving an influenza vaccination on September 11, 2016. Petition at 1, ¶ 15. Petitioner also alleged that he continues to experience pain, now more than six months after vaccination, and that a civil action for damages has not been brought or any settlement or award collected for petitioner’s injury alleged as vaccine caused. Id. at ¶¶ 13-14. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished ruling contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website,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). On December 20, 2017, 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 “has concluded that petitioner’s alleged injury is consistent with a shoulder injury related to vaccine administration (“SIRVA”) as defined on the Vaccine Injury Table.” Id. at 5. Respondent further agrees that “based on the record as it now stands, petitioner has satisfied all legal prerequisites for compensation under the Act.” Id. In view of respondent’s position and the evidence of record, the undersigned finds that petitioner is entitled to compensation. IT IS SO ORDERED. s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master