Bossenbroek v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
*********************
CHELSEA BOSSENBROEK, *
* No. 17-122V
Petitioner, * Special Master Christian J. Moran
v. *
*
SECRETARY OF HEALTH * Issued: April 16, 2019
AND HUMAN SERVICES, *
* SIRVA, flu vaccine, six-month
Respondent. * requirement.
*********************
RULING FINDING FACTS
AND GRANTING ENTITLEMENT TO COMPENSATION1
Ms. Chelsea Bossenbroek claims that a flu vaccine she received on October
22, 2015 caused her to suffer a shoulder injury compensable under the Vaccine
Act. Petition ¶ 3. Respondent contests Ms. Bossenbroek’s claim for compensation
on the basis that the evidence in the record “does not provide a reliable basis upon
which to conclude that the symptoms she experienced in October 2015 continued
for six months.” Resp’t’s Rep., filed Oct. 26, 2017, at 4-5.
To resolve the parties’ dispute, the undersigned set Ms. Bossenbroek’s case
for a hearing. Prior to the hearing, the undersigned sought clarification from
respondent regarding his position in the case. See order, issued Nov. 2, 2018. In
his response clarifying his position, respondent confirmed that preponderant
evidence supported the claim that petitioner suffered from shoulder pain that
1
Because this ruling contains a reasoned explanation for the action in this case, the 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). This means the ruling will be available to
anyone with access to the internet. In accordance with Vaccine Rule 18(b), petitioners have 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 before
posting the ruling.
started immediately following vaccination, but that she was precluded from
compensation on the basis that she did not meet the six-month severity requirement
of the Act. Resp’t’s Status Rep., filed Dec. 4, 2018, at 4-5 (referencing 42 U.S.C.
§ 300aa-11(c)(1)(D)(i)).
A one-day hearing was held in Grand Rapids, Michigan, on December 13,
2018, to resolve the dispute regarding the six-month severity requirement. At the
hearing, testimony was taken from petitioner, Ms. Chelsea Bossenbroek, and four
affiants, Mr. Zachary Snyder, Ms. Greta Bossenbroek, Mr. James Bossenbroek,
and Ms. Kyle Dickinson. At the end of the hearing, the undersigned tentatively
found that Ms. Bossenbroek had met her evidentiary burden of establishing that her
shoulder pain lasted longer than six months. The basis for that finding was
expounded upon in an order issued on January 3, 2019. The critical aspect of the
analysis turned on the undersigned’s finding that the respondent incorrectly
interpreted the medical records to mean that Ms. Bossenbroek had no lingering
shoulder issues as of December 15, 2015. See order, issued Jan. 3, 2019, at 2. In
contrast with respondent’s interpretation, the undersigned interpreted the records to
mean that while Ms. Bossenbroek’s shoulder was much improved and that while
she no longer wanted to pursue out-patient physical therapy treatments, she
continued to experience a small amount of continued shoulder pain / discomfort
that was attributable to an underlying pathology that started immediately following
the October 22, 2015 vaccination. Id. at 2-3.
The undersigned issued the findings tentatively to allow the parties to
explore informal resolution while still providing the opportunity for either party to
supplement the record based on information elicited at hearing. Id. at 3.
Since the January order finding tentative facts, the parties have indicated that
settlement remains unlikely at this time. See Pet’r’s Rep., filed Mar. 22, 2019.
During a status conference held on April 9, 2019, respondent confirmed that
without a ruling on entitlement, he would not be able to proceed further. During
the status conference, the parties confirmed that the evidentiary record, for the
purpose of entitlement, was complete. Accordingly, Ms. Bossenbroek’s claim is
ripe for adjudication.
Ms. Bossenbroek has presented preponderant evidence that she suffered a
shoulder injury related to vaccine administration. As the Secretary has conceded,
Ms. Bossenbroek’s shoulder pain started immediately following the administration
of the vaccine on October 22, 2015. See Resp’t’s Status Rep., filed Dec. 4, 2018,
at 1-2. The mechanism by which vaccination can result in injuries of this type are
2
clearly explained by the Secretary himself in the Qualifications and Aids to
Interpretation (QAI) to the Vaccine Injury Table, promulgated by the Department
of Health and Human Services. See 82 Fed. Reg. 6303 (Jan. 19, 2017). Ms.
Bossenbroek’s injury is, by all accounts, consistent with the mechanism of
causation detailed in the QAI. Cf. Portee v. Sec'y of Health & Human Servs., No.
16-1552V, 2018 WL 5284599, at *5–7, 10 (Fed. Cl. Spec. Mstr. Sept. 14, 2018)
(granting compensation after analyzing petitioner’s claim of compensation for
SIRVA under the standards provided in the QAI). Accordingly, Ms. Bossenbroek
has presented preponderant evidence that her shoulder injury was caused-in-fact by
her vaccine.
Furthermore, for the reasons explained above and in the January 5, 2019
order finding tentative facts, Ms. Bossenbroek has presented preponderant
evidence that she meets the Act’s six-month severity requirement. Accordingly,
Ms. Bossenbroek is entitled to compensation.
Respondent shall file a status report by Friday, May 17, 2019, on progress
made towards resolving the damages aspect of the case.
IT IS SO ORDERED.
s/ Christian J. Moran
Christian J. Moran
Special Master
3