Bushemi v. Secretary of Health and Human Services

In the United States Court of Federal Claims OFFICE OF SPECIAL MASTERS No. 20-1083V UNPUBLISHED DIANE BUSHEMI, Chief Special Master Corcoran Petitioner, Filed: December 9, 2021 v. Special Processing Unit (SPU); SECRETARY OF HEALTH AND Ruling on Entitlement; Concession; HUMAN SERVICES, Table Injury; Influenza (Flu) Vaccine; Shoulder Injury Related to Vaccine Respondent. Administration (SIRVA) Edward M. Kraus, Law Offices of Chicago Kent, Chicago, IL, for Petitioner. Claudia Barnes Gangi, U.S. Department of Justice, Washington, DC, for Respondent. RULING ON ENTITLEMENT1 On August 27, 2020, Diane Bushemi 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 shoulder injury related to vaccine administration (SIRVA) as a result of an influenza (flu) vaccine administered to her on October 8, 2019. Petition at 1. Petitioner further alleges that she received the vaccine in the United States, her symptoms persisted for more than six months, and she has not received compensation in the form of an award or settlement for her vaccine-related injuries. Petition at 1, 5-6. The case was assigned to the Special Processing Unit of the Office of Special Masters. 1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required to post it on the United States Court of Federal Claims' website in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 November 19, 2021, 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. Respondent found that Petitioner suffered a SIRVA as defined by the Vaccine Injury Table. Id. at 5. Specifically, Respondent determined that “[P]etitioner had no recent history of pain, inflammation, or dysfunction of her left shoulder that would explain the alleged signs, symptoms, examination findings and/or diagnostic studies occurring after vaccine injection; the onset of pain occurred within forty-eight hours after receipt of an intramuscular vaccination; the pain was limited to the shoulder in which the vaccine was administered; and, no other condition or abnormality has been identified to explain petitioner’s left shoulder pain.” Id. at 5-6. Respondent further agrees that the scope of damages to be awarded is limited to Petitioner’s SIRVA and its related sequelae only. Id. at 6. 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 2