Bushemi v. Secretary of Health and Human Services ( 2022 )

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UNPUBLISHED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1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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
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