In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1010V
UNPUBLISHED
KATHY WIMMLER, Chief Special Master Corcoran
Petitioner, Filed: August 25, 2021
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Damages Decision Based on Proffer;
HUMAN SERVICES, Influenza (Flu) Vaccine; Shoulder
Injury Related to Vaccine
Respondent. Administration (SIRVA)
Kristen Linnea Blume, Richard Gage, P.C. (WY), Cheyenne, WY, for Petitioner.
Catherine Elizabeth Stolar, U.S. Department of Justice, Washington, DC, for
Respondent.
DECISION AWARDING DAMAGES 1
On July 15, 2019, Kathy Wimmler 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 she suffered a right shoulder injury related to
vaccine administration (“SIRVA”) which meets the Table definition for SIRVA after
receiving the influenza vaccine on October 11, 2017. Petition at ¶¶ 2, 6. Petitioner further
alleged that she received the vaccine in the United States, that she suffered the residual
effects of her SIRVA for more than six months, and that neither she nor any other party
has received compensation or filed a civil action for her SIRVA. Id. at ¶¶ 2, 7-8. The case
was assigned to the Special Processing Unit of the Office of Special Masters.
On April 2, 2021, a ruling on entitlement was issued, finding Petitioner entitled to
compensation for her SIRVA. On August 25, 2021, Respondent filed a proffer on award
1
Because this unpublished Decision contains a reasoned explanation f or the action in this case, I am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 Decision 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.
2
National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all section ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
of compensation (“Proffer”) indicating Petitioner should be awarded $47,500.00,
representing compensation for her pain and suffering. Proffer at 1. In the Proffer,
Respondent represented that Petitioner agrees with the proffered award. Id. Based on
the record as a whole, I find that Petitioner is entitled to an award as stated in the Proffer.
Pursuant to the terms stated in the attached Proffer, I award Petitioner a lump
sum payment of $47,500.00, representing compensation for her pain and suffering,
in the form of a check payable to Petitioner. This amount represents compensation for
all damages that would be available under Section 15(a).
The clerk of the court is directed to enter judgment in accordance with this
decision.3
IT IS SO ORDERED.
s/Brian H. Corcoran
Brian H. Corcoran
Chief Special Master
3
Pursuant to Vaccine Rule 11(a), entry of judgment can be expedited by the parties’ joint f il ing of notice
renouncing the right to seek review.
2
IN THE UNITED STATES COURT OF FEDERAL CLAIMS
OFFICE OF SPECIAL MASTERS
)
KATHY WIMMLER, )
)
Petitioner, )
) No. 19-1010V
v. ) Chief Special Master Corcoran
) ECF
SECRETARY OF HEALTH AND )
HUMAN SERVICES, )
)
Respondent. )
)
RESPONDENT’S PROFFER ON AWARD OF COMPENSATION
On July 15, 2019, Kathy Wimmler (“petitioner”) filed a petition for compensation under
the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34 (“Vaccine Act”
or “Act”), alleging that she suffered a Shoulder Injury Related to Vaccine Administration
(“SIRVA”), as defined in the Vaccine Injury Table, following administration of an influenza
vaccine she received on October 11, 2017. Petition at 1. On April 2, 2021, the Secretary of
Health and Human Services (“respondent”) filed a Rule 4(c) Report indicating that this case is
appropriate for compensation under the terms of the Act for a SIRVA Table injury, and on April
2, 2021, the Chief Special Master issued a Ruling on Entitlement finding petitioner entitled to
compensation. ECF No. 41; ECF No. 43.
I. Items of Compensation
A. Pain and Suffering
Respondent proffers that petitioner should be awarded $47,500.00 in pain and suffering.
See 42 U.S.C. § 300aa-15(a)(4). Petitioner agrees.
This amount represents all elements of compensation to which petitioner is entitled under
42 U.S.C. § 300aa-15(a). Petitioner agrees.
II. Form of the Award
Petitioner is a competent adult. Evidence of guardianship is not required in this case.
Respondent recommends that the compensation provided to petitioner should be made through a
lump sum payment as described below and requests that the Chief Special Master’s decision and
the Court’s judgment award the following1: a lump sum payment of $47,500.00, in the form of a
check payable to petitioner.
III. Summary of Recommended Payments Following Judgment
Lump sum payable to petitioner, Kathy Wimmler: $47,500.00
Respectfully submitted,
BRIAN M. BOYNTON
Acting Assistant Attorney General
C. SALVATORE D’ALESSIO
Acting Director
Torts Branch, Civil Division
HEATHER L. PEARLMAN
Deputy Director
Torts Branch, Civil Division
DARRYL R. WISHARD
Assistant Director
Torts Branch, Civil Division
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 lost earnings
and future pain and suffering.
2
/s/ Catherine E. Stolar
CATHERINE E. STOLAR
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) 353-3299
Fax: (202) 616-4310
Email: catherine.stolar@usdoj.gov
DATED: August 25, 2021
3