Balcer v. Secretary of Health and Human Services

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 20-901V
UNPUBLISHED
RAYMOND BALCER, Chief Special Master Corcoran
Petitioner, Filed: November 19, 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)
Ronald Craig Homer, Conway, Homer, P.C., Boston, MA, for Petitioner.
James Vincent Lopez, U.S. Department of Justice, Washington, DC, for Respondent.
RULING ON ENTITLEMENT 1
On July 24, 2020, Raymond Balcer 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 Table injury – Shoulder Injury Related
to Vaccine Administration (“SIRVA”) – as a result of his October 17, 2018 influneza (“flu”)
vaccination. Petition at 1. Petitioner further alleges that the vaccine was administered
within the United States, that he suffered the residual effects of his injury for more than
six months, and that there has been no prior award or settlement of a civil action on his
behalf as a result of his injury. See Petition at ¶¶14-16. The case was assigned to the
Special Processing Unit of the Office of Special Masters.
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Because this unpublished Ruling contains a reasoned explanation for the action in this case, I am required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 ref erences to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. §
300aa (2012).
On November 17, 2021, 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
[m]edical personnel at the Division of Injury Compensation Programs,
Department of Health and Human Services (“DICP”), have reviewed the
petition and medical records filed in the case. It is [R]espondent’s position
that [P]etitioner suffered a SIRVA as defined by the Vaccine Injury Table.
Specifically, [P]etitioner had no recent history of pain, inflammation, or
dysfunction of his left shoulder that would explain the alleged signs,
symptoms, examination findings and/or diagnostic studies occurring after
vaccine injection; the onset of pain occurred within forty-eight hours after
receipt of an intramuscular vaccination; the pain was limited to the shoulder
in which the vaccine was administered; and, no other condition or
abnormality has been identified to explain [P]etitioner’s left shoulder pain.
42 C.F.R. §§ 100.3(a)(XIV)(B), (c)(10).
Id. at 3-4. Respondent further agrees that “[P]etitioner suffered the residual effects of his
condition for more than six months”. Id. at 4 (citing § 11(c)(1)(D)(i)).
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