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

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-1898V
UNPUBLISHED
EMILY FENSTER, Chief Special Master Corcoran
Petitioner, Filed: September 14, 2022
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)
Bruce William Slane, Law Office of Bruce W. Slane, P.C., White Plains, NY, for
Petitioner.
Mitchell Jones, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On December 18, 2020, Emily Fenster 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 that was administered
to her on November 27, 2018. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On September 12, 2022, 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 agrees that “[P]etitioner has satisfied the criteria set
1 Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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).
forth in the Vaccine Injury Table (“Table”) and the Qualifications and Aids to Interpretation
(“QAI”) for SIRVA caused by the intramuscular administration of a flu vaccine.” Id. at 4
(citing §§ 100.3(a)(XIV)(D), 100.3(c)(15). Respondent further agrees that “the case was
timely filed, that the vaccine was received in the United States, and that [P]etitioner
satisfies the statutory severity requirement by suffering the residual effects or
complications of her injury for more than six months after vaccine administration.” Id.
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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