Mitchell v. Secretary of Health and Human Services ( 2021 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 19-1987V
UNPUBLISHED
CHARLEE MITCHELL, Chief Special Master Corcoran
Petitioner, Filed: May 7, 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)
Paul R. Brazil, Muller Brazil, LLP, Dresher, PA, for petitioner.
Kyle Edward Pozza, U.S. Department of Justice, Washington, DC, for respondent.
RULING ON ENTITLEMENT 1
On December 30, 2019, Charlee Mitchell 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 Table injury – Shoulder Injury
Related to Vaccine Administration (“SIRVA”) – as a result of her October 29, 2018
influneza (“flu”) vaccination. Petition at 1. The case was assigned to the Special
Processing Unit of the Office of Special Masters.
On May 3, 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.
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Because this unpublished ruling contains a reasoned explanation for the action in this case, I am required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).
Specifically, Respondent
[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 respondent’s position that
petitioner has satisfied the criteria set forth in the Vaccine Injury Table
(“Table”) and the Qualifications and Aids to Interpretation (“QAI”). Petitioner
had no history of pain, inflammation or dysfunction in her left shoulder; her
pain and reduced range of motion occurred within 48 hours of receipt of an
intramuscular vaccination; her symptoms were limited to the shoulder in
which the vaccine was administered; and no other condition or abnormality
was identified to explain her initial symptoms. 42 C.F.R. § 100.3(a)(XIV)(B),
(c)(10).
Id. at 4. Respondent further agrees that
the records show that the case was timely filed, that the vaccine was
received in the United States, and that petitioner satisfies. the statutory
severity requirement by suffering the residual effects or complications of her
injury for more than six months after vaccine administration. See 42 U.S.C.
§§ 300aa-11(c)(1)(D)(i). Petitioner avers that no civil action or proceedings
have been pursued in connection with the vaccine-related injury. See 42
U.S.C. §§ 300aa-11(a)(5) and -11(c)(1)(E); Ex. 8, ¶5.
Id. at 4-5.
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