Mitchell v. Secretary of Health and Human Services ( 2018 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-1751V
Filed: November 16, 2018
UNPUBLISHED
DIANA L. MITCHELL,
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.
Elizabeth Martin Muldowney, Sands Anderson, PC, Richmond, VA, for petitioner.
Glenn Alexander MacLeod, U.S. Department of Justice, Washington, DC, for
respondent.
RULING ON ENTITLEMENT 1
Dorsey, Chief Special Master:
On November 8, 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 alleges that her November 14, 2014 influenza (“flu”)
vaccination caused her to suffer a Shoulder Injury Related to Vaccine Administration
(“SIRVA”). Petition at 1. The case was assigned to the Special Processing Unit of the
Office of Special Masters.
1 The undersigned intends to post this ruling on the United States Court of Federal Claims' website. 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, the undersigned
agrees that the identified material fits within this definition, the undersigned will redact such material from
public access. Because this unpublished ruling contains a reasoned explanation for the action in this
case, undersigned is 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).
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 November 13, 2018, 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 indicates that
DICP has reviewed the facts of this case and concluded that petitioner’s
claim meets the Table criteria for SIRVA. Specifically, petitioner had no
history of pain, inflammation or dysfunction of the affected shoulder prior
to intramuscular vaccine administration that would explain the alleged
signs, symptoms, examination findings, and/or diagnostic studies
occurring after vaccine injection; she suffered the onset of pain within
forty-eight hours of vaccine administration; her pain and reduced range of
motion were limited to the shoulder in which the intramuscular vaccine
was administered; and there is no other condition or abnormality present
that would explain petitioner’s symptoms. Therefore, petitioner is entitled
to a presumption of vaccine causation.
Id. at 5-6. Respondent further agrees that
the records show that the case was timely filed, that the vaccine was
received in the United States, and that petitioner satisfies the statutory
severity requirement by suffering the residual effects or complications of
her injury for more than six months after vaccine administration. See 42
U.S.C. §§ 300aa-11(c)(1)(D)(i). Petitioner avers that no civil action or
proceedings have been pursued in connection with the vaccine-related
injury. See 42 U.S.C. §§ 300aa-11(a)(5) and -11(c)(1)(E); Pet. at ¶15.
Id. at 6.
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