Thomas v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-0804V
UNPUBLISHED
MICHAEL THOMAS, Chief Special Master Corcoran
Petitioner, Filed: December 29, 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)
Leah Durant, Law Offices of Leah V. Durant, PLLC, Washington, DC, for Petitioner.
Ronalda Kosh, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
On May 31, 2019, Michael Thomas 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 right shoulder injury related to vaccine
administration (SIRVA) as a result of an influenza (“flu”) vaccination received on
September 16, 2018. Petition at 1. The case was assigned to the Special Processing Unit
of the Office of Special Masters.
On November 3, 2020, Respondent filed his Rule 4(c) report in which he opposed
compensation, asserting that the contemporaneous VAR reflects that Petitioner’s flu
vaccine was administered in Petitioner’s left deltoid, not his right shoulder as alleged. ECF
28 at 8. After allowing the parties the opportunity to file briefs, I issued a ruling finding that
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Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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 section references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
there is preponderant evidence to establish that the flu vaccination alleged as causal was
administered in Petitioner’s right shoulder. ECF 36 at 7. On December 27, 2021,
Respondent filed an amended Rule 4 report in which he “advise[d] that he will not defend
the case on other grounds during further proceedings before the Office of Special
Masters.” ECF 41 at 2. While preserving his right to appeal my Findings of Fact,
Respondent “submits that [P]etitioner has otherwise satisfied the criteria set forth in the
Vaccine Injury Table and the [QAI] for [SIRVA].” Id. at 2-3.
Based on the record as it now stands, Respondent states that he does not contest
that Petitioner is entitled to compensation in this case. ECF 41 at 9. More specifically,
Petitioner had no recent history of pain, inflammation, or dysfunction of his right shoulder;
the onset of Petitioner’s pain occurred within 48 hours after receipt of an intramuscular
vaccination; Petitioner’s 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 right shoulder pain. Id. In addition, Petitioner suffered the residual effects of
his condition for more than six months. Id.
Therefore, 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