Lewis v. Secretary of Health and Human Services ( 2020 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 18-1792V
UNPUBLISHED
STEVEN LEWIS, Chief Special Master Corcoran
Petitioner, Filed: November 13, 2020
v.
Special Processing Unit (SPU);
SECRETARY OF HEALTH AND Ruling on Entitlement; Table Injury;
HUMAN SERVICES, 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.
Mollie Danielle Gorney, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT1
On November 20, 2018, Steven Lewis 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 he suffered a shoulder injury related to vaccine
administration (“SIRVA”) as a result of an influenza (“flu”) vaccination administered on
October 22, 2016. Petition at 1. The case was assigned to the Special Processing Unit of
the Office of Special Masters.
On October 8, 2020, I issued Findings of Fact in which I determined that
Petitioner’s “shoulder pain most likely began within 48 hours of receiving the October 22,
1 Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required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.
2 National 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).
2016 flu vaccine.” ECF No. 48 at 4. In reaction, on November 9, 2020, Respondent filed
an Amended Rule 4(c) Report indicating that while preserving his right to appeal the
October 8, 2020 Fact Finding, he agrees that “[P]etitioner has satisfied all legal
prerequisites for compensation under the Act.” Respondent’s Rule 4(c) Report at 2 (citing
42 U.S.C. § 300aa-13).
Specifically, Respondent stated as follows:
In light of the Chief Special Master’s fact finding, and medical record
evidence submitted in this case, [the Secretary] will not continue to contest
that petitioner suffered SIRVA as defined by the Vaccine Injury Table . . . In
addition, petitioner suffered the residual effects of his condition for more
than six months. 42 U.S.C. § 300aa-11(c)(1)(D)(i). Therefore, based on the
record as it now stands and subject to his right to appeal the Findings of
Fact, respondent does not dispute that petitioner has satisfied all legal
prerequisites for compensation under the Act. 42 U.S.C. § 300aa-13.
Id. at 5.
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